VES-3-02-OT:RR:BSTC:CCR HQ H248636 WRB
Mr. Robert Allen
Norton Lilly International
301 E. Ocean Blvd.
Suite 2060
Long Beach, CA 90802
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)
Dear Mr. Allen:
This letter is in response to your correspondence of December 10, 2013, with respect to the coastwise transportation of five individuals. Our ruling is set forth below.
FACTS:
You ask whether five individuals may be transported on the non-coastwise-qualified M/V HANJIN KOREA, from Long Beach, California, to Oakland, California, from December 28, 2013, through December 29, 2013. The individuals are members of a live documentary film crew who would be carried onboard for the purpose of covering terminal and vessel operations, normal crew work, and a whole view of the ocean, while the vessel is underway.
ISSUE:
Whether the subject individuals are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 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 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that:
(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 the coastwise trade; and
(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.
Section 4.50(b), Customs and Border Protection (“CBP”) Regulations (19 CFR § 4.50(b)) provides as follows:
A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation, navigation, ownership, or business of the vessel.
In the present case, you state that the subject individuals are members of a live documentary film crew who would be carried onboard for the purpose of covering terminal and vessel operations, normal crew work, and a whole view of the ocean, while the vessel is underway.
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 CFR § 4.50(b)) if they are required to be onboard to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are onboard because of a necessary vessel ownership or business interest during the voyage. (See HQ 101699 [November 5, 1975]; see also HQ 116721 [September 25, 2006], quoting HQ 101699.) Furthermore, the shipboard activities engaged in by such aforementioned individuals while traveling on a non-coastwise-qualified vessel between coastwise ports must be “directly and substantially” related to the operation, navigation, ownership, or business of the vessel itself in order for such individuals to not be considered as passengers under these provisions of law. (See HQ 116721, supra; and see HQ 116659 [May 19, 2006], referencing the “direct and substantial” test.)
CBP has consistently held that individuals transported solely for the purpose of producing films, videos, and television commercials are passengers within the meaning of 46 U.S.C. § 55103 and 19 CFR § 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 (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 cruise line promotional video were passengers); HQ H053637 (March 5, 2009) (holding that individuals transported for the purpose of filming a TV commercial 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.
Consistent with the thrust and tenor of the above rulings, we find that the proposed activity in this case is not directly and substantially connected with the operation, navigation, business, or ownership of the vessel. Therefore, we determine that the subject individuals would be “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). Accordingly, the coastwise transportation of such individuals would be in violation of 46 U.S.C. § 55103.
HOLDING:
The subject individuals would be “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). Therefore, the coastwise transportation of such individuals would be in violation of 46 U.S.C. § 55103.
Sincerely,
Lisa L. Burley
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Restricted Merchandise Branch
Office of International Trade, Regulations & Rulings
U.S. Customs and Border Protection