VES-3-02/07-CO:R:IT:C 111871 BEW
William E. Vajda
Daniel F. Young, Inc.
17 Battery Place North
New York, New York 10004
RE: Coastwise Trade; Passengers; Transportation of clergyman for
purpose of conducting religious services on board the
vessel; 46 U.S.C. App. 289;
Dear Mr. Vajda:
This is in response to your letter dated August 21, 1991,
requesting a ruling concerning the application of the Jones Act
to the proposed carriage of Rabbi Marshall Maltzman on the
Norwegian passenger vessel SEABOURN SPIRIT from the port of New
York to the port of Boston, via several ports in Canada.
FACTS:
In your letter your state that the owner of the SEABOURN
SPIRIT has engaged a clergyman, Rabbi Marshall Maltzman, to
conduct Yom Kippur services on board the subject vessel for the
benefit of the vessel's Jewish passengers. You state that Rabbi
Maltzman will embark the vessel at the port of New York on
September 16, 1991, for the purpose of conducting Yom Kippur
services on board the vessel. You state that there is no Jewish
chaplain on board and that the Jewish holiday, Yom Kippur, occurs
at sundown on September 17, 1991. You state that Yom Kippur is
the most solemn day of the year for the Jews, a holiday devoted
to contemplation and family. For this reason, you ask that Mrs.
Maltzman be permitted to accompany Rabbi Maltzman.
The itinerary of the vessel is as follows:
The vessel will depart New York on September 16, 1991, sail
to Camden, Maine, to the Canadian ports of Halifax, Nova
Scotia, Montreal, Ouebec, and Charlottetown, Prince Edward
Island, the vessel will then proceed to two Massachusetts
ports, Boston and Martha's Vineyard, and return to the port
of embarkation (New York) on September 30, 1991.
You state that Rabbi Maltzman must disembark from the vessel
at the port of Boston in order to fulfill other duties and
obligations. You state that neither Rabbi Maltzman nor Mrs.
Maltzman will pay consideration for any type of passage.
ISSUE:
Whether the transportation of a clergyman and his wife on a
foreign-flag vessel as described above constitutes a violation of
46 U.S.C. App. 289.
LAW AND ANALYSIS:
Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and
883, and 46 U.S.C. 12106 and 12110) prohibit the transportation
of merchandise or passengers between points in the United States
embraced within the coastwise laws in any vessel other than a
vessel built in and documented under the laws of the United
States, and owned by persons who are citizens of the United
States.
The passenger coastwise law, 46 U.S.C. App. 289, provides
that:
No foreign vessel shall transport passengers
between ports or places in the United States
either directly or by way of a foreign port,
under penalty of $200 for each passenger so
transported and landed.
For purposes of the coastwise laws, a vessel "passenger" is
defined as "... any person carried on a vessel who is not
connected with the operation of such vessel, her navigation,
ownership, or business." (Section 4.50(b), Customs
Regulations.)
Section 4.80a(b)(2) of the Customs Regulations (19 CFR
4.80a(b)(2) provides that, "if the passenger is on a voyage to
one or more one or more coastwise ports and a nearby foreign port
or ports (but at no other foreign port) and the passenger
disembarks at a coastwise point other than the port of
embarkation, there is a violation of the coastwise law" (46
U.S.C. App. 289). We have ruled that if a passenger is on a
voyage to one or more coastwise ports and a nearby foreign port
or ports (but at no other foreign port) and the passenger
disembarks the vessel at a nearby foreign port or if the
passengers embark and disembark at the same coastwise port, there
is no violation of section 289.
In Headquarters ruling 104915, dated November 10, 1980, it
was ruled that two doctors from the Department of Radiology of
the University of California and their wives, who participated
as faculty members for a radiology seminar which was held on
board the M/V ROYAL VIKING SEA, were not deemed passengers as
defined in section 4.50(b) because they were sufficiently
connected with the business of the vessel within the meaning of
section 4.50(b). The doctors and their wives, who assisted in the
seminars by taking attendance of the registrants and setting up
the audiovisual equipment, were permitted to board the vessel at
San Francisco and disembark from the vessel a port in
Alaska. Customs held that no violation of the coastwise laws
would occurred when the subject persons disembarked from the
vessel.
It appears that one aspect of the subject vessel's
activities is to make available religious services to those
persons who wish to partake in such services where cruises extend
over religious holidays. Clergymen who are on the vessel for the
purpose of directing religious services aboard the vessel, would
not be deemed passengers as defined in section 4.50(b) because
they would be sufficiently connected with the business of the
vessel within the meaning of section 4.50(b). Accordingly, no
violation of the coastwise laws would occurred when Rabbi
Marshall disembarked from the vessel at the port of Boston,
With regard to Mrs. Marshall, the facts presented are not
sufficient to show that she is connected with the actual
operation, navigation, ownership, or business of the vessel
within the meaning of section 4.50 (b) of the Customs
Regulations. While a clergyman who would be directly or
immediately connected with the vessel's operation, navigation,
ownership, or business may be exempt from passenger status under
section 4.50(b), the wife of such a person who is accompany her
husband for family purposes, would be remotely connected with
the business of the vessel and as such would not be exempt from
passenger status. If Mrs. Marshall embarks at the port of New
York, proceeds with the vessel to the Canadian ports and
disembark at the port of New York, her transportation would not
be violative of the statute. The transportation of Mrs. Marshall
from the port of New York to Boston, via Canada, would be
prohibited under the provisions of section 289.
HOLDING:
The request to transport the subject clergyman is granted;
the subject clergyman is not considered a passenger for the
purposes of 46 U.S.C. App. 289 by virtue of his connection with
the business of the vessel.
The transportation of the subject clergyman's wife whose is
accompany her husband for family reasons would be a violation of
46 U.S.C. App. 289 if she were permitted to disembark from the
vessel a coastwise point other then the point of embarkation.
Sincerely,
Stuart P. Seidel
Director
International Trade
Compliance Division Branch
cc: District Director, New York, Boston