VES-3-06-CO:R:IT:C 112982 GEV
Gene Levy
King Kona Productions, Inc.
100 Universal City Plaza
Bungalow 108
Universal City, California 91608
RE: Coastwise Trade; Film Making; 46 U.S.C. App. 289, 883
Dear Mr. Levy:
This is in response to your facsimile of January 5, 1994,
regarding the use of two foreign-built vessels in the shooting of
a film in Hawaii. Our ruling on this matter is set forth below.
FACTS:
In April of 1994, King Kona Productions, Inc. ("King Kona")
will commence shooting a futuristic sailing film in Hawaii starring
Kevin Costner. King Kona purchased two 60' trimarans built in
France by Jeanneau to be used in the film. Jeanneau was the only
factory in the world that could build these very unique,
sophisticated vessels within the desired time frame. The hulls
for these boats will arrive in Kona, Hawaii, on or about February
15, 1994, for final assembly. After assembly, the boats will be
sailed by Kevin Costner and other employees of King Kona solely
for the purpose of being filmed by King Kona's cinematographers.
The boats will not carry any passengers for hire or be engaged in
commerce.
ISSUE:
Whether the proposed use of the two foreign-built vessels in
question for the production of a film in Hawaii constitutes a
violation of 46 U.S.C. App. 289 and/or 883.
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LAW AND ANALYSIS:
Title 46, United States Code Appendix, 883 (46 U.S.C. App.
883), the merchandise coastwise law often called the "Jones Act",
provides in part, that no merchandise shall be transported between
points in the United States embraced within the coastwise laws,
either directly or via a foreign port, or for any part of the
transportation, 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 (i.e., a coastwise-qualified
vessel). Section 289 of title 46 (46 U.S.C. App.
289, the passenger coastwise law which appears to be more
relevant to your concerns) as interpreted by the Customs Service,
prohibits the transportation of passengers between points in the
United States embraced within the coastwise laws, either directly
or by way of a foreign port, in a non-coastwise-qualified vessel
(see above). For purposes of 289, "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."
(19 CFR 4.50(b)) The connection must be direct and immediate, not
a remote or hypothetical connection or a connection related only
to future voyages.
The coastwise laws generally apply to points in the
territorial sea, 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, in cases
where the baseline and the coastline differ.
In its administration of 46 U.S.C. App. 289, the Customs
Service has ruled that the carriage of passengers entirely within
territorial waters, even though the passengers disembark at their
point of embarkation and the vessel touches no other coastwise
point, is considered coastwise trade subject to coastwise laws.
However, the transportation of passengers to the high seas (i.e.,
beyond U.S. territorial waters) and back to the point of
embarkation, assuming the passengers do not go ashore, even
temporarily, at another United States point, often called a "voyage
to nowhere", is not considered coastwise trade.
(29 O.A.G. 318 (1912))
In regard to the applicability of 46 U.S.C. App. 289 to the
making of a movie or film aboard a non-coastwise-qualified vessel
not owned by the company making the movie or film, Customs has held
that the mere carriage of the cast and technicians aboard such a
vessel is not a sufficient nexus to the vessel's operation,
navigation, ownership or business to conclude they are other than
passengers within the meaning of 19 CFR 4.50(b). Consequently,
their transportation aboard such a vessel between two United States
points constitutes a violation of 46 U.S.C. App. 289. (Customs
Rulings MA 212, dated July 3,1957; 104007, dated June 26, 1979; and
105979, dated February 9, 1983)
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However, the carriage of these passengers from a United States
point to a point on the high seas and their return to their point
of embarkation (i.e., a "voyage-to-nowhere" as discussed above)
would not violate 46 U.S.C. App. 289.
In your letter you state not only that King Kona owns the two
French-built trimarans in question, but also that they will be
sailed by Kevin Costner and other employees of your company during
the filming of the movie. If in fact that is the case, Mr. Costner
and these employees would have a sufficient nexus to the operation,
navigation, ownership and business of the vessel (akin to crew
members) so as not to be considered passengers within the meaning
of 19 CFR 4.50(b). Consequently, their transportation aboard
these vessels between United States points would not constitute a
violation of 46 U.S.C. App. 289. If at any time during the
filming individuals other than the afore- mentioned are transported
aboard these vessels, they would be considered passengers within
the meaning of 19 CFR 4.50(b) and their transportation must be
pursuant to a "voyage-to-nowhere" as discussed above in order to
be in compliance with the provisions of 46 U.S.C. App. 289.
We note that with regard to cameras, film and other equipment
used for making the film, pursuant to 46 U.S.C. App.
883 such articles may not be transported between United States
points on board the subject vessels. They may, however, be
transported on board for purposes of filming provided their point
of lading and unlading is the same.
HOLDING:
The proposed use of the two foreign-built vessels in question
for the production of a film in Hawaii would not violate 46 U.S.C.
App. 289 provided any individuals transported on board the vessel
other than those discussed above are transported pursuant to a
"voyage-to-nowhere." Any cameras, film and other equipment used
for making the film and transported aboard these or other non-
coastwise-qualified vessels must be laded and unladed at the same
point so as not to incur a violation of 46 U.S.C. App. 883.
Sincerely,
Arthur P. Schifflin
Chief