VES-3-07-CO:R:IT:C 112601 LLB
Mr. Eliot J. Halperin
Graham and James
2000 M. Street, N.W.
Suite 700
Washington, D.C. 20036-3113
RE: Coastwise trade; Passengers; Company employees; Travel agents;
46 U.S.C. App. 289
Dear Mr. Halperin:
This is in response to your letter of February 18, 1993, in
which you request that Customs issue a binding ruling addressing
the issue of whether sales personnel who are employees of Seabourn
Cruise Line, together with independent travel agents, may be
transported between two coastwise points aboard the company's
vessel the SEABOURN PRIDE.
FACTS:
It is proposed that approximately 125-150 persons, consisting
both of employees of the vessel operating company and independent
travel agents, board the non-coastwise-qualified commercial cruise
vessel SEABOURN PRIDE at the port of Boston, Massachusetts, and
proceed with the vessel to New York, New York, where they would
disembark. The reported purpose of the voyage is to conduct a
promotional meeting aboard the vessel during passage between the
two ports.
ISSUE:
Whether non-crew-member employees of a vessel operating
company, as well as independent travel agents, may be transported
between two United States ports in the company's non-coastwise-
qualified commercial vessel without invoking the proscriptions
imposed by 46 U.S.C. App. 289 regarding unlawful transportation of
passengers by unqualified vessels.
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LAW AND ANALYSIS:
The passenger coastwise law, 46 U.S.C. App. 289, provides
that:
No foreign vessel shall transport passengers
between ports or places in the United States,
either directly or by way of a foreign port,
under a penalty of $200 for each passenger so
transported and landed.
The Customs Service has consistently interpreted this
proscription to apply to any vessel except a United States-built,
owned, and properly documented vessel (see 46 U.S.C. 12106 and
12110, 46 U.S.C. App. 883, and 19 CFR 4.80(a)). Pursuant to
section 4.50(b) of the Customs Regulations (19 CFR 4.50(b)), the
word "passenger," for purposes of this provision, is defined as
"...any person carried on a vessel who is not connected with the
operation of such vessel, her navigation, ownership, or business."
The connection must be direct and immediate, not a remote or
hypothetical connection or a connection related only to future
voyages.
The Customs Service has long-held that while travel agents
may be tangentially connected with the business of a vessel in that
they may better sell and promote future travel on that vessel, they
are not directly enough connected with the business of the vessel
to be classified as other than passengers as defined in 19 CFR
4.50(b), whether or not they are charged a fare. (ruling letters
dated April 3, 1958 (MA 216.131) and August 29, 1960 (MA 217.1))
The connection of such persons to the vessel is no closer than
their connection to vessels of other lines which offer cruises to
the public. It should be noted, however, that travel agents who
are employed by the corporation that owns the vessel and whose
duties require an on board presence (e.g., to assist a specific
group of passengers) would possess a sufficiently direct and
immediate nexus to the vessel's business so as not to be considered
passengers for purposes of section 289.
The required degree of connection with the business of the
vessel is found in the present case as concerns the proposed
transportation of the vessel operating company's Regional Sales
Managers and Sales Management Staff. As employees of the vessel
owner, the business connection is clear and their transportation
would not be prohibited.
Accordingly, transporting the travel agents in question would
be prohibited, while the transportation of employees of the company
would not constitute a violation.
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HOLDING:
Travel agents transported on a foreign-flag vessel free of
charge between United States points for promotional purposes are
"passengers" for purposes of 46 U.S.C. App. 289. Therefore, such
transportation is prohibited.
The coastwise transportation of company employees, consisting
of Regional Sales Managers and Sales Management Staff members, in
that company's non-coastwise-qualified vessel would not be a
violation of the coastwise passenger transportation statute since
such persons possess a sufficient connection with the business of
the vessel so as not to be considered passengers under that
statute.
Sincerely,
Acting Chief
Carrier Rulings Branch