HQ 113017
VES-3-06-CO:R:IT:C 113017 LLB
Ms. Mary Jo Schneider
Manager, Guest Programs
Crystal Cruises
2121 Avenue of the Stars
Los Angeles, California 90067
RE: Coastwise Trade; Photography; 46 U.S.C. App. 289
Dear Ms. Schneider:
This is in response to your facsimile of February 8, 1994,
regarding the transportation of photographers aboard your
company-owned cruise vessel from Los Angeles to Honolulu. Our
ruling on this matter is set forth below.
FACTS:
It is proposed that four persons embark a vessel owned by
Crystal Cruises in the port of Los Angeles, California. One of
those persons is an executive of the company, and the other three
are professional photographers employed by the company to take
photographs aboard the vessel during the course of its voyage
from Los Angeles to Honolulu, Hawaii, via Ensenada, Mexico. The
photographs are not intended for company promotional purposes but
will be used for company sales staff training. The vessel is
scheduled to depart Los Angeles on February 9, 1994.
ISSUE:
Whether the proposed transportation aboard the vessel in
question constitutes a violation of 46 U.S.C. App. 289.
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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 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 transportation of a photo crew aboard a non-coastwise-qualified vessel not owned by the transporting company, Customs
has held that the mere carriage of 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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In the present case, however, the vessel is owned and
operated by the company which is employing the photographers to
produce photos for company business purposes. In such an
instance, we would find a sufficient connection with the
ownership or business of the vessel and would not consider
persons so engaged to be passengers.
HOLDING:
The proposed use of the non-coastwise-qualified vessel in
question for the purpose of transporting persons in the employ of
the transporting company between Los Angeles and Honolulu,
Hawaii, would not violate 46 U.S.C. App. 289.
Sincerely,
Arthur P. Schifflin
Chief
Carrier Rulings Branch