VES-3-02-OT:RR:BSTC:CCI H0016910 LLB
Mr. LeVar O. Kennings
Norwegian Cruise Line
7665 Corporate Center Drive
Miami, Florida 33126
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)
Dear Mr. Kennings:
This letter is in response to your correspondence of September 11, 2007, in which you inquire about the coastwise transportation of the 3 individuals mentioned therein aboard the M/V NORWEGIAN DAWN. Our decision follows.
FACTS
The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified M/V NORWEGIAN DAWN (the “vessel”) from New York, New York to Bar Harbor, Maine. The individuals are expected to embark in New York on September 13, 2007 and disembark in Bar Harbor on September 15, 2007. As a Beverage Specialist for Norwegian Cruise Line (NCL), one of the individuals will be training the food and beverage staff on new policies and procedures and implementation of new practices relating to restaurant operations onboard. The remaining two individuals, a retail operations manager and a marketing operations manager of a brewery in Bar Harbor, will be promoting its products and brewery to the food and beverage staff.
ISSUE
Whether the individuals described in the FACTS section above are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b).
LAW and ANALYSIS
Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.”
The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline. The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 which provides:
(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel-
(1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic;
(2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.
(b)Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.
The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide:
A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business.
19 C.F.R. § 4.50(b).
You state that one of the individuals, a Beverage Specialist, will be transported on the vessel for the purpose of training the food and beverage staff on new policies and procedures and implementation of new practices relating to restaurant operations onboard. In this context, and in accordance with previous Headquarters’ rulings, workmen, technicians, or observers transported by vessel between ports of the United States are not classified as “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699.
In the present case, to the extent that this individual would be engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, that would be “directly and substantially” related to the operation or business itself, as would be the case under the facts herein submitted, the cruise line’s Beverage Specialist would not be considered a passenger. As such, we find that this individual is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of the Beverage Specialist would not be in violation of 46 U.S.C. § 55103.
However, with regard to the remaining two individuals that would be promoting their beer company and products, we conclude that these individuals are passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). In HQ H002925 (Nov. 8, 2006), CBP held that a key-accounts representative who was transported aboard a vessel “to educate travel agents and industry professionals about [the cruise line’s] product during the transit” was a passenger within the meaning of 46 U.S.C. § 55103 insofar as the representative was not “directly and substantially” connected with the operation, navigation, ownership or business of the vessel itself. CBP reasoned that although transporting the key-accounts representative aboard the vessel fostered the business interests of the cruise line, it did not connect the representative directly and immediately with the business of the vessel itself.
Similarly, you propose to transport the brewery executives to promote its products during the voyage. The foregoing would foster the business of the cruise line rather than the business of the vessel itself. To the extent that the subject individuals would not be engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, that would be “directly and substantially” related to the operation or business of the vessel itself, such individuals would be considered passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b).
HOLDING
The individual described above that will be training the food and beverage staff of the cruise line on restaurant onboard operations, is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of the foregoing individual is not in violation of 46 U.S.C. § 55103.
However, the two individuals described above that will be engaged in promoting their business and products during the subject voyage, are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of those two individuals would be in violation of 46 U.S.C. § 55103.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch