VES-3-02-RR:BSTC:CCI 116630 rb
Craig Millan
Senior Vice President, Land Operations
Royal Caribbean International
1050 Caribbean Way
Miami, FL 33132-2096
RE: Coastwise transportation of passengers; 46 U.S.C. App. 289; 19 CFR 4.80
Dear Mr. Millan:
Your letter of March 1, 2006, to Ms. Kathleen Haage-Gaynor, Area Director, U.S. Customs and Border Protection, Newark/New York, concerns your vessel, FREEDOM OF THE SEAS, on which a national broadcast of The Today Show is planned while the vessel is positioned by the Statue of Liberty in New York Harbor. The media notables hosting the show would be transported by launch to the vessel at that location. Our ruling herein addresses the intended transportation of these media personalities aboard the vessel, after the broadcast, to Bayonne, New Jersey, where they would disembark.
FACTS:
A company (cruise line) and a television network plan to undertake a national television broadcast aboard the company’s cruise vessel while the vessel is positioned by the Statue of Liberty at Liberty Island in New York Harbor. The media personalties who would host and/or appear on the telecast would be transported by launch to the vessel at that location. After the broadcast, the vessel would proceed from its location by the Statue of Liberty, as described, to the Cape Liberty Cruise Port situated in Bayonne, New Jersey, adjacent to New York Bay, where the media notables would disembark. The subject vessel is both foreign-built and foreign-flagged.
ISSUE:
Whether the conveyance of media personalties aboard a foreign-built, foreign-flagged vessel from the vicinity of the Statue of Liberty at Liberty Island in New York Harbor to the Cape Liberty Cruise Port in Bayonne, New Jersey, adjacent to New York Bay, would constitute the coastwise transportation of passengers in violation of 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)(2), 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 “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)).
A coastwise transportation occurs when a passenger is taken aboard a vessel at one coastwise point and is then conveyed to and landed at another coastwise point. The coastwise laws encompass any point in the territorial waters of the United States, defined as the belt, 3 nautical miles wide, adjacent to the coast of the United States, and seaward of the territorial sea baseline, as well as any point located in internal (navigable) waters, landward of the territorial sea baseline, in cases where the baseline and the coastline differ (see, e.g., T.D. 78-440 and Headquarters ruling (HQ) 111275, of November 13, 1990). As such, the coastwise laws would, for example, embrace “points on a river in the United States” (C.S.D. 84-15), “the internal waters of a State” (ibid.), as well as “points within a harbor” (19 CFR 4.80(a)).
In addition, a “passenger” is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership or business (19 CFR 4.50(b)). To this end, and fully consistent with the protectionist nature of section 289, persons
transported on a vessel are considered passengers unless they are “directly and substantially” connected with the operation, navigation, ownership or business of the vessel itself (see Customs Bulletin notice of June 5, 2002 (Vol. 36, No. 23)).
Consequently, the intended movement of the vessel from its position adjacent to the Statue of Liberty at Liberty Island in New York Harbor, to the Cape Liberty Cruise Port in Bayonne, New Jersey, would clearly constitute a coastwise transportation; and the referenced media personalities would plainly be passengers if they were to be conveyed aboard the vessel between these coastwise points, inasmuch as it is axiomatic that such persons would have no direct or substantial connection whatever with the operation, navigation, ownership or business of the vessel itself.
It is observed in passing that there is, of course, no violation of the coastwise laws engendered by the mere presence of the media personalties aboard the vessel to conduct the telecast while the vessel remains positioned by the Statue of Liberty at Liberty Island. Nevertheless, any waterborne transportation of the media notables, after the broadcast, from the point where the vessel is situated near the Statue of Liberty to another coastwise point must be effected in a coastwise-qualified vessel in order to be in compliance with the law.
HOLDING:
The conveyance of the media personalties aboard a foreign-built, foreign-flagged (non-coastwise-qualified) vessel from the vicinity of the Statue of Liberty at Liberty Island in New York Harbor to the Cape Liberty Cruise Port in Bayonne, New Jersey, adjacent to New York Bay, would constitute the coastwise transportation of passengers in violation of the coastwise passenger statute, 46 U.S.C. App. 289.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers, & Immigration Branch