Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); dancers; shore excursions; guest chefs; show directors; director and president of cruise line

HQ H055498 May 22, 2009 VES-3-02-OT:RR:BSTC:CCI H055498 LLB CATEGORY: Carriers Ms. Hiroko Yamagishi NYK Cruises, Operations Division Yusen Building, 3-2, Marunouchi 2-chome Chiyoda-ku, Tokyo, Japan RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); dancers; shore excursions; guest chefs; show directors; director and president of cruise line Dear Ms. Yamagishi: This letter is in response to your correspondence dated March 24, May 13, and May 22, 2009, in which you inquire about the coastwise transportation of the 23 individuals mentioned therein aboard the M/S ASUKA II. Our decision follows. FACTS The voyage in question involves the transportation of the subject individual, aboard the non-coastwise-qualified M/S ASUKA II (the “vessel”). One individual, a cruise line employee that is responsible for passenger logistics as it relates to shore excursions included in the cruise line's itinerary, will embark in New York, New York on June 19, 2009 and disembark in Honolulu, Hawaii on July 13, 2009. Fifteen of the individuals, Hawaiian dancers will embark in San Francisco, California on July 7, 2009 and disembark in Honolulu July 12, 2009. The dancers will be performing in a show for the passengers aboard the vessel. Three of the individuals characterized by you as "guest chefs" will embark in New York on June 19, 2009 and disembark in San Francisco on July 7, 2009. The chefs will prepare a "special dinner" for the passengers. One of the individuals, the director of the cruise line, will embark in New York on June 19, 2009 and will disembark in San Francisco on July 7, 2009. The foregoing individual will meet with the vessel's hotel manager to discuss passenger service. Another individual, the president of the cruise line, will embark on New York on June 19, 2009 and will disembark in Honolulu on July 17, 2009. The foregoing individual will be meeting with the vessel's master and managers regarding the cruise schedule and passenger service. Two individuals, show directors, will meet with the onboard entertainment staff to develop new shows. One of these individuals will embark in New York on June 19, 2009 and disembark in San Francisco on July 7, 2009 and the other individual will embark in San Francisco on July 7, 2009, and disembark in Honolulu on July 13, 2009. 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. See 33 C.F.R. § 2.22(a)(2)(2009). 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 15 of the subject individuals, dancers, will be transported on the vessel for the purpose of entertaining the passengers aboard the vessel, as described above. Another individual, a cruise line employee, will be transported for the purpose of passenger logistics as it relates to shore excursions included in the cruise line's itinerary. Two individuals will be meeting with the onboard entertainment staff to develop new shows for the passengers and two individuals, the cruise line director and president, will be meeting with onboard crew to discuss the cruise schedule and passenger service. 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 and business of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. See HQ 101699 (Nov. 5, 1975); HQ 116721 (Sept. 25, 2006) quoting HQ 101699; see also HQ H018736 (Nov. 1, 2007) (singer); HQ H107747 (Oct. 2, 2007) (pianist, juggler, and singer); HQ H017032 (Sept. 14, 2007) (comedian); HQ H024294 (Apr. 9, 2008) (producer and director of onboard show); and HQ H030436 (June 20, 2008) (dancers). In the present case, to the extent these 20 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. With regard to the remaining individuals, "guest chefs" who will be preparing a special dinner for the passengers, we have determined that these individuals are considered passengers. Indeed we would agree that chefs that are responsible for preparing all of the meals served to the passengers for an entire cruise itinerary would have a direct and substantial connection to the operation or business of the vessel itself. However, in the present case, in which three individuals will prepare one meal for part of a cruise itinerary, we do not find such a connection. To the extent that the subject individuals 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 individuals would be considered passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). In conclusion, pursuant 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b), we find that the 15 dancers; the 3 cruise line employees responsible for shore excursions and meeting with onboard crew regarding operational matters, as described above; and the 2 individuals that will be working with the onboard entertainment staff to produce new shows, are not “passengers”. However, we conclude that the three guest chefs are "passengers." Accordingly, the coastwise transportation of the dancers, the aforementioned cruise line employees, and the two show directors, as described above, is not in violation of 46 U.S.C. § 55103; however, the transportation of the three guest chefs would be in violation of that statute. HOLDING The fifteen individuals that will be performing for the cruise passengers, the three cruise line employees responsible for shore excursions and other operational matters, and the two show directors, as described above, 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 such individuals would not be in violation of 46 U.S.C. § 55103. However, the three individuals that will be preparing a special dinner for the passengers, as described above, are passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individual would be in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch