Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)

HQ H075183 September 14, 2009 VES-3-02-OT:RR:BSTC:CCI H075183 JLB CATEGORY: Carriers Mr. Devin McKenzie Operation Vessel Manager Quay Cruise Agencies USA 1000 E. Del Amo Blvd. Carson, California 90746 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. McKenzie: This letter is in response to your correspondence dated September 10, 2009, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the M/V SILVER SHADOW constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/V SILVER SHADOW (“the vessel”). The individual will embark on September 21, 2009 at San Francisco, California and will disembark at the port of Los Angeles, California on October 12, 2009. The individual is a representative of the Michael Judge Portfolio of Excellence with whom the cruise line has contracted to install fine art and fine objects d’art exhibitions aboard the vessel that are available to the passengers. She is a lecturer who will lecture the passengers on the artwork. Additionally, the individual will act as a consultant for the cruise line and will be "escorting/working with training/and conducting interviews with a travel media group (journalists)" onboard. ISSUE Whether the individual described above would be a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b)? LAW AND ANALYSIS The coastwise passenger statute, former 46 U.S.C. App. § 289 recodified as 46 U.S.C. § 55103, pursuant to P.L. 109-304 (October 6, 2006), states that no foreign vessel shall transport passengers “between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port,” under a penalty of $300 for each passenger so transported and landed. See also 19 C.F.R. § 4.80(b)(2). 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. Under 46 U.S.C. § 55103, a “passenger” is any person carried aboard a vessel “who is not connected with the operation of the vessel, her navigation, ownership, or business.” See also 19 C.F.R. § 4.50(b). In this regard, U.S. Customs and Border Protection (“CBP”) provides a strict interpretation of “passenger” defining the term as persons transported on a vessel unless they are "directly and substantially" connected with the operation, navigation, ownership or business of that vessel itself. See Customs Bulletin of June 5, 2002, Vol. 36, No. 23, at pp. 50. In the present case, the individual is a lecturer who would be traveling aboard the non-coastwise-qualified vessel with the fine art and fine objects d’art exhibitions that were installed to provide the passengers with her expertise. CBP has previously determined that lecturers are “passengers” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b) given that they would not be "directly and substantially" related to the ownership, navigation, operation or business of the vessel itself. See Headquarters Ruling Letter H011874, dated May 31, 2007 (individuals transported aboard a vessel as clothing consultants to give advice about fashion for the passengers onboard were “passengers” within the meaning of 46 U.S.C. § 55103 insofar as these "fashion consultants" were not "directly and substantially" connected with the operation, navigation, ownership or business of the vessel itself); see also Headquarters Ruling Letter H023376, dated May 10, 2008 (holding that individuals transported for the purpose of providing a "lecture about New Orleans to the passengers onboard" were passengers within the meaning of 46 U.S.C. § 55103); Headquarters Ruling Letter H027133, dated May 5, 2008 (an individual who was providing a lecture on makeup was a “passenger” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b)); Headquarters Ruling Letter H042296, dated Oct. 30, 2008 (an individual providing lectures about the environment, maps, and dolphins was a “passenger”); Headquarters Ruling Letter H054243, dated March 20, 2009 (an individual who will provide lectures about the history of wine and wines of the Pacific Northwest and the United States is considered a “passenger” and the coastwise transportation of this individual would be in violation of 46 U.S.C. § 55103). Additionally, the individual will act as a consultant while aboard and will be "escorting/working with training/and conducting interviews with a travel media group (journalists)". In Headquarters Ruling Letter H067035, dated July 2, 2009, CBP held that the Director of Media Relations, whose purpose in traveling aboard the vessel was "escorting/working with training/and conducting interviews with a travel media group (journalists)" was a “passenger” since while those activities may foster the business of the cruise line, they do not connect the individual directly and substantially with the operation and business of the vessel itself. Consequently, the coastwise transportation of the subject individual is in violation of 46 U.S.C. § 55103. HOLDING The subject individual 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 such an individual is in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch