VES-3-02-OT:RR:BSTC:CCI H030436 LLB
Ms. Hiroko Yamagishi
NYK Cruises, Operations Division
Yusen Building, 3-2, Marunouchi 2-chome
Chiyoda-ku, Tokyo, Japan
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)
Dear Ms. Yamagishi:
This letter is in response to your correspondence dated June 10, 2008, and supplemental correspondence of June 11, 2008, in which you inquire about the coastwise transportation of the 15 individuals mentioned therein aboard the M/S ASUKA II. Our decision follows.
FACTS
The voyage in question involves the transportation of the subject individual, aboard the non-coastwise-qualified M/S ASUKA II (the “vessel”). One individual, a tour operator, will embark in New Orleans, Louisiana on June 15, 2008. Fourteen of the individuals, consisting of 13 Hawaiian dancers and the Senior Managing Director of Marine Operations, will embark in San Francisco, California on June 30, 2008. All of the individuals will disembark in Honolulu, Hawaii on or about July 6, 2008. The tour operator will prepare shore excursions for each port and will provide information about the ports in which the vessel will stop. The dancers will be performing in a show for the passengers aboard the vessel. The Senior Manager of Marine Operations will meet with the Captain of the vessel to discuss the cruise schedule for the next season and drydocking for 2009.
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. See 33 C.F.R. § 2.22(a)(2)(2008). 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 13 of the subject individuals, dancers, will be transported on the vessel for the purpose of entertaining the passengers aboard the vessel, as described above. Another individual, the Senior Manager of Marine Operations will meet with the Captain of the vessel to discuss the cruise schedule for the next season and drydocking for 2009. 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. See HQ 101699 (Nov. 5, 1975); HQ 116721 (Sept. 25, 2006) quoting HQ 101699; see also HQ H018736 (Nov. 1, 2007) (singer); HQ H107747 (Oct. 2, 2007) (pianist, juggler, and singer); HQ H017032 (Sept. 14, 2007) (comedian); HQ H027918 (May 16, 2008) and HQ H018093 (Oct. 9, 2007) (preparation for drydock).
In the present case, to the extent these 14 individuals 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, such individual would not be considered passengers.
With regard to the remaining individual, a tour operator, who will be preparing shore excursions for each port and will providing information about the ports in which the vessel will stop, we have determined that this individual is considered a passenger. In HQ H011874 (May 31, 2007), CBP held that individuals transported aboard a vessel to “embark as clothing consultants and they will just give advice about fashion for the passengers onboard” were passengers within the meaning of 46 U.S.C. § 55103 insofar as these "fashion consultants" were not “directly and substantially” connected with the operation, navigation, ownership or business of the vessel itself. In HQ H023376 (May 10, 2008), CBP held that individuals transported aboard a vessel to "[l]ecture about New Orleans to the passengers onboard" were also passengers within the meaning of 46 U.S.C. § 55103.
Similarly, you propose to transport a tour operator whose purpose is to provide shoreside activities and information to the passengers. To the extent that the subject individual would not have been 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 individual would be considered a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b).
In conclusion, pursuant 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b), we find that the 13 dancers and the Senior Manager of Marine Operations are not “passengers” and the tour operator is a "passenger." Accordingly, the coastwise transportation of the dancers and the aforementioned manager is not in violation of 46 U.S.C. § 55103; however, the transportation of the tour operator would be in violation of that statute.
HOLDING
The thirteen individuals that will be performing for the cruise passengers, as described above, and the individual that will be meeting with the captain of the vessel to discuss future cruise schedules and drydocking, are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individuals would not be in violation of 46 U.S.C. § 55103.
However, the individual that will be preparing shore excursions and port information, as described above, is a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individual would be in violation of 46 U.S.C. § 55103.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch