VES-3-02-OT:RR:BSTC:CCI H030297 LLB
Mr. Marco I. Calvo
Norton Lilly International
1201 First Avenue South, Suite 330
Seattle, Washington 98134
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); Bureau Letter dated July 3, 1957, MA 212; HQ 109695 (Nov. 3, 1988); HQ 116668 (July 25, 2006); HQ H008038 (Mar. 9, 2007)
Dear Mr. Calvo:
This letter is in response to your undated correspondence which this office received on June 6, 2008. In your correspondence you request "permission" for the individual mentioned therein to be transported aboard the M/V NIPPON MARU. We are construing your correspondence as a request for a ruling to determine whether the coastwise laws, specifically 46 U.S.C. § 55103, and the regulations promulgated under that statute, 19 C.F.R. § 4.50(b), apply to the factual scenario you present. Our decision follows.
FACTS
The voyage in question involves the transportation of the subject individual, a photographer, aboard the non-coastwise-qualified M/V NIPPON MARU (the “vessel”), a cruise ship. The subject individual will embark in Seattle, Washington on June 30, 2008 and disembark in Juneau, Alaska, on July 3, 2008. The individual is the "official photographer" for the cruise ship operator Mitsui O.S.K. Passenger Lines and will be documenting the vessel's transit.
ISSUE
Whether the individual described in the FACTS section above is a “passenger” 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. See 33 C.F.R. § 2.22(a)(2)(2008). 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).
CBP has historically held that individuals, cruise line employees or contractors, transported solely for the promotional purpose of the vessel line, are passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). 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); HQ H008038 (Mar. 9, 2007) (holding that two marketing employees of the cruise line and independent contractors, that were shooting, producing, and performing in a promotional video cruise line were passengers). CBP’s reasoning in the holdings in the foregoing cases is that none of those activities are “directly and substantially” related to the operation or business of the vessel itself.
Here, the purpose of the photographer aboard the vessel is to document the cruise ship's transit. Although documenting the vessel's transit may foster the business of Mitsui O.S.K. Passenger Lines, it does not connect the subject individual directly and substantially with the business of the vessel itself. To the extent that the subject individual would not have been 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 of the vessel itself, such individual would be considered a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b).
In conclusion, as discussed above, the subject individual will be considered a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b) and therefore, his coastwise transportation would be in violation of 46 U.S.C. § 55103.
HOLDING
The subject individual, a photographer, is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of this individual would be in violation of 46 U.S.C. § 55103.
Sincerely,
Glen E. Vereb, Chief
Cargo Security, Carriers and Immigration Branch