VES-3-02-RR:BSTC:CCI 116659 rb
Gregory M. Purdy
Assoc. Vice President, Safety & Environment
Royal Caribbean International
1050 Caribbean Way
Miami, FL 33132-2096
RE: Coastwise transportation of passengers; 46 U.S.C. App. 289; 19 CFR
Dear Mr. Purdy:
Your letter of May 18, 2006, requests an expedited ruling concerning the planned transportation aboard your vessel, FREEDOM OF THE SEAS, of 500 of your company’s employees, from Boston, MA, to Miami, FL. During this cruise, your company’s first ever “Global Strategy Summit” would take place involving these employees. You state that “CBP Boston informed us that our request for a coastwise sailing waiver was denied at the local level and that we would need to appeal to CBP Headquarters for a final ruling.” Our ruling in this matter follows.
A company (cruise line) plans to conduct a “Global Strategy Summit” while the vessel is en route from Boston, MA, to Miami, FL. The cruise would begin on May 22 and end on May 25, 2006. On board the vessel for this Summit would be 500 employees of the company; these employees represent areas of North America Sales and Marketing, International Sales and Marketing, Fleet Operations and management. “[A]ll attendees are company employees or contractors working in direct support for [the company].” The stated goal is thus to strategize for three days on how to sell, market and enhance the overall guest experience of the vessel, as well as the guest experiences offered on their other ships. To accomplish this marketing strategy, various trainings, seminars, tours and strategy sessions would be conducted with the employees “while living the product for the three day sailing to Miami.” The subject cruise ship is a foreign vessel (both foreign-built and foreign-flagged).
Whether the company’s employees, if transported aboard its vessel in the circumstances described, would be passengers under the coastwise passenger statute, 46 U.S.C. App. 289.
LAW AND ANALYSIS:
The coastwise passenger statute, 46 U.S.C. App. 289, provides that no foreign vessel may transport passengers between ports or places in the United States either directly or by way of a foreign port, upon a penalty of $300 for every passenger so transported and landed (see 19 CFR 4.80(b), adjusting the penalty to $300 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990).
The coastwise laws, including section 289, are highly protectionist provisions (see Autolog Corp. v. Regan, 731 F.2d 25, at 30 (D.C. Cir. 1984) (coastwise laws, including section 289, intended to create a "coastwise monopoly" for domestic shippers and crews in order “'to protect and develop American merchant marine, shipbuilding, seamen, etc.'”) (quoting Wirth Ltd. v. S/S Acadia Forest, 537 F.2d 1272, 1281 n.32 (5th Cir. 1976))). The coastwise transportation of passengers under section 289 is thus restricted to coastwise-qualified vessels (i.e., vessels that are built in and documented under the laws of the United States and owned by persons who are citizens of the United States) (see 19 CFR 4.80(a)(1)-(3)). See also Headquarters ruling (HQ) 116630, dated March 27, 2006.
As prescribed in 19 CFR 4.50(b), a "passenger" is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership or business. To this end, most significantly, a legal notice published in the June 5, 2002, Customs Bulletin, in precise concert with the protectionist nature of section 289, imposed a circumscribed construction as to the meaning of the term "passenger" under the U.S. coastwise trade laws, including section 289.
Under this strict interpretation of the term “passenger,” as finalized in the June 5, 2002, Customs Bulletin notice, persons transported on a vessel are considered passengers unless they are "directly and substantially" connected with the operation, navigation, ownership or business of that vessel itself. See, e.g., HQ 110967, of April 12, 1990, to the effect that persons on commercial (non-pleasure) vessels, which would include cruise ships, are considered passengers unless they enjoy some status which ties them "intimately" to the operation, navigation, ownership or business of the vessel itself (“For example, the employees of a construction firm whose owner happens to utilize a vessel in the course of [its construction] business, would be considered passengers when transported point to point. This is so because, although they have a direct relationship with the company, they have no such connection with the vessel”).
Under the facts presented in this case, the crux of the intended Summit during the cruise encompassing hundreds of the company’s employees is to devise a Global Strategy for marketing and cruise sales promotion or enhancement. Specifically, the company explains that the goal of its Summit aboard the ship is to strategize for three days on how to sell, market and enhance the overall guest experience surrounding the present vessel, as well as the guest experiences offered on their other ships, by means of employee trainings, seminars, tours, and strategy sessions “while living the product for the three day sailing to Miami.”
Restrictive Interpretation of “Passenger” under Section 289
and 19 CFR 4.50(b)
However, fully consistent with the protectionist interpretation accorded the term "passenger" in the June 5, 2002, Customs Bulletin notice, supra, it was ruled in Bureau Letter dated August 29, 1960, that "cruise agents who merely accompany the vessel for...cruise passage sales promotion are not persons connected with the operation, navigation, ownership, or business of the vessel within the meaning of section 4.50(b)...The activity of the persons involved is only remotely or indirectly connected with the operation or business of the vessel rather than direct and immediate as contemplated by the regulations" (emphasis added).
Furthermore, it was suggested, unsuccessfully, in Bureau Letter of August 29, 1960, supra, that the cruise agents and newspapermen there concerned not be considered passengers inasmuch as the publicity generated therefrom would stimulate sales of cruise passages on the vessel, "and such sales are basic to the vessel's business." Again, this is the ultimate intent underlying the company's Global Strategy Summit aboard the instant vessel. Nevertheless, while the 500 employees involved herein clearly enjoy a direct and immediate relationship with the business of the cruise line in this respect, these employees quite plainly have no such relationship with the vessel itself (“[A]ll attendees are company employees or contractors working in direct support for [the company].” And compare HQ 110967, supra.
Moreover, in HQ 111628, dated April 26, 1991, approximately 60 employees of a major cruise line were to accompany its vessel from Charleston, SC, to Williamsburg, VA, in order "to further enhance employee product knowledge." This reason for the presence of the employees aboard the vessel in HQ 111628, while phrased somewhat laconically, is generally descriptive of the individual objectives sought to be achieved by the company in the case at hand, i.e., employee training, tours, seminars, etc., “while living the product for the three day sailing to Miami” (emphasis added). But in finding that such employees were passengers for coastwise purposes, it was concluded in HQ 111628 that "the facts are not sufficient to show that the subject employees...are directly connected with the operation, navigation, ownership, or business of the vessel.
Mere employment by a corporation that is involved in the transportation industry is not tantamount to being engaged in the 'business' of a vessel" (emphasis added).
Impact of June 5, 2002, Customs Bulletin Notice Re
Meaning of “Passengers”
Yet, in stark conflict with the foregoing, a number of rulings, all notably predating the June 5, 2002, Customs Bulletin notice, had determined that employees of a cruise line were not passengers under section 289 when transported aboard its vessel, notwithstanding their patent lack of any “direct and substantial” link with the operation or business of the vessel itself, as peremptorily mandated in the June 5, 2002, Customs Bulletin notice (e.g., HQ 115366, of May 18, 2001 (employees of cruise line “sufficiently connected” to business of vessel so as not to be passengers); HQ 114336, of May 27, 1998 (“sales and marketing employees of a cruise ship [sic] that are transported on its vessel for conferences or seminars are not passengers for purposes of 46 U.S.C. App. 289”)). However, it is precisely rulings such as these that the June 5, 2002, Customs Bulletin notice was specifically designed to correct/revoke. In this particular regard, aside from identifying and revoking an explicit list of such rulings, the June 5, 2002, notice also reasonably acknowledged that:
[T]his list may not be complete and that there may exist other ruling letters that have not been identified which are inconsistent with this notice. Accordingly, this notice is intended to cover any ruling that pertains to whether persons transported on vessels are considered passengers under 19 CFR 4.50(b).
Consequently, in accordance with prevailing law (administrative rulings, such as HQ 110967, Bureau Letter dated August 29, 1960, and HQ 111628, supra, and especially the June 5, 2002, Customs Bulletin notice, squarely reaffirming the legal position advanced in such rulings), the subject 500 employees of the company, if transported aboard its vessel from Boston, MA, to Miami, FL, would perforce be considered passengers under the coastwise passenger statute, 46 U.S.C. App. 289, there being no “direct and substantial” connection being demonstrated under the circumstances between these employees and the operation or business of the vessel itself.
There would of course be no violation of the coastwise laws engendered by the mere presence of the company’s employees aboard its vessel to engage in the planned activities while the vessel is stationary. In the alternative, the planned Global Strategy Summit with the company’s employees could have been held aboard the vessel in the course of a “voyage to nowhere,” in which the employee-passengers are transported to the high seas (i.e., beyond United States territorial waters) and back to the point of initial embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point. Arguably, this latter alternative, which was also effectively broached in HQ 111628, supra, would be more akin to the actual experiences of guests aboard the vessel, inasmuch as such passengers would likewise naturally be prohibited under section 289 from being transported coastwise in the manner contemplated in this case, given the fact that the vessel, being foreign-built and foreign flagged, is a “foreign vessel” under section 289.
Waiver; Issuance of Binding Rulings
Parenthetically, for purposes of clarification, it is observed that the only authority for waiving the coastwise laws is in the interest of national defense, which is inapplicable here; and such authority is reserved to “[t]he head of each department or agency responsible for the administration of the navigation and vessel inspection laws” (Act of December 27, 1950; 64 Stat. 1120; note preceding 46 U.S.C. App. 1). Nor do CBP field offices have authority to issue legally binding rulings with respect to the coastwise laws, including section 289; this authority lies solely with CBP Headquarters, Office of Regulations and Rulings, Cargo Security, Carriers, & Immigration Branch (formerly, the Entry Procedures and Carriers Branch) (see 19 CFR 4.80a(d); and see 19 CFR 177.2(a) & (b)(2)(iv)).
Under prevailing law, and based upon the facts presented in this case, the subject employees of the company, if transported aboard its vessel from Boston, MA, to Miami, FL, would perforce be considered passengers under the coastwise passenger statute, 46 U.S.C. App. 289. Their intended transportation aboard the vessel from Boston, MA, and their disembarking at Miami, FL, on May 22 and May 25, 2006, respectively, would therefore be in violation of section 289.
/s/ Glen E. Vereb
Glen E. Vereb
Cargo Security, Carriers, & Immigration Branch