VES 3-02-OT:RR:BSTC:CCR H267530 WRB
Mr. Steve Cook
Maritime Training Services
1900 West Nickerson St.
Suite 205
Seattle, WA 98119
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b).
Dear Mr. Cook:
This is in response to your correspondence of August 7, 2015, in which you inquire about the coastwise transportation of the two individuals mentioned therein aboard the M/V HANJIN TABUL. Our decision follows.
FACTS
The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified M/V HANJIN TABUL (“the vessel”). The individuals will embark the vessel in Long Beach, California, on or about August 28, 2015, and will disembark in Seattle, Washington, on or about September 5, 2015. The individuals will be carried onboard for the purpose of filming safety training videos on shipboard operations while the vessel is underway, with the intent of producing general maritime safety training videos which are marketed world-wide to satisfy international, flag, and port state training requirements. While the operators of the vessel will be provided with a copy of the raw video as a courtesy, these videos are not specifically shot for the vessel.
ISSUE
Whether the individuals described in the FACTS section 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 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) of the Customs and Border Protection (“CBP”) Regulations 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.
In the present case, you state that the subject individuals will be carried onboard for the purpose of filming safety training videos on shipboard operations while the vessel is underway, with the intent of producing general maritime safety training videos which are marketed world-wide to satisfy international, flag, and port state training requirements. While the operators of the vessel will be provided with a copy of the raw video as a courtesy, these videos are not specifically shot for the vessel. 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 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. HQ 101699 (Nov. 5, 1975); see HQ 116721 (Sept. 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.
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 (Mar. 5, 2009) (holding that individuals transported for the purpose of filming a TV commercial were passengers); HQ H248636 (Dec. 12, 2013) (documentary film crew covering terminal and vessel operations, and normal crew work). 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
Chief/Supervisory Attorney-Advisor
Cargo Security, Carriers and Restricted Merchandise Branch
Office of International Trade, Regulations and Rulings