VES-3-02-RR:BSTC:CCI H008038 LLB
G. Michael Hubbard
Vice President California Operations
Quay Cruise Agencies, U.S.A.
1000 Del Amo Boulevard
Carson, CA 90746-3520
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)
Dear Mr. Hubbard:
This letter is in response to your correspondence of March 8, 2007, on behalf of your client, Crystal Cruises, in which you inquire about the coastwise transportation of the 16 individuals mentioned therein aboard the M/V CRYSTAL SYMPHONY. Our decision follows.
FACTS
The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified M/V CRYSTAL SYMPHONY (the “vessel”) from Los Angeles, California to Honolulu, Hawaii. The individuals are expected to embark in Los Angeles on March 11, 2007 and disembark in Honolulu on March 17, 2007. As the Quality Assurance Manager, one of the individuals will be conducting a quality assurance audit on the hotel operations of the vessel, including the food and beverage, housekeeping, entertainment, shore excursions, accounting, front office and casino operations. Another individual, the Fire Treatment Specialist, will be conducting fire treatment of various on-board public areas of the vessel. The remaining 14 individuals, which include two marketing employees of the cruise line and independent contractors, will be shooting and producing or performing in a promotional video for the M/V CRYSTAL SYMPHONY for Crystal Cruises.
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. 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 one of the individuals will be transported on the vessel for the purpose of conducting a quality assurance audit of the hotel operations of the vessel and that another individual will be fire treating various public areas of the vessel. 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 or navigation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699(Nov. 5, 1975); see also HQ 116721(Sept. 25, 2006) quoting HQ 101699.
In the present case, to the extent that these two 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 individuals would not be considered passengers.
Based upon the fact that these two individuals will be engaged in overseeing the hotel operations of the vessel and fire treating the public areas of the vessel during the voyage, we find that these individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of these two individuals is not in violation of 46 U.S.C. § 55103.
However, with regard to the remaining 14 individuals that will be shooting a promotional video for the cruise line, two of which are Crystal Cruise Lines’ employees, we conclude that these individuals are passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). A film crew and cast, whether they are employees of the company or independent contractors, that are engaged in making a movie, or doing a promotional film/photo shoot while being transported coastwise aboard a vessel, have long been held to be passengers. See Bureau Letter dated July 3, 1957, MA 212 (movie making); HQ 109695 (Nov. 3, 1988) (camera crew carried aboard to film a promotional video); HQ 116668(July 25, 2006)(camera crew and company employees engaged in promotional filming for cruise line).
Insofar as the foregoing 14 individuals will be engaged in promotional videotaping during the subject voyage, those individuals would be considered “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of those 14 individuals would be in violation of 46 U.S.C. § 55103.
HOLDING
The two individuals described above that will be conducting the quality assurance audit of the hotel operations of the vessel and fire treatment of the vessel, 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 those two individuals is not in violation of 46 U.S.C. § 55103.
However, the 14 individuals described above that will be engaged in promotional videotaping during the subject voyage, are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of those 14 individuals would be in violation of 46 U.S.C. § 55103.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch