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

HQ H091495 January 22, 2010 VES-3-02-OT:RR:BSTC:CCI H091495 JLB CATEGORY: Carriers Ms. Aimee Norman Carnival UK Carnival House 100 Harbour Parade Southampton SO15 1ST England RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Ms. Norman: This letter is in response to your correspondence dated January 20, 2010, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the QUEEN VICTORIA 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 individuals aboard the non-coastwise-qualified QUEEN VICTORIA (“the vessel”). Two of the three individuals will embark on January 27, 2010 at San Francisco, California and will disembark at the port of Honolulu, Hawaii on February 2, 2010. The third individual will embark at Honolulu, Hawaii on February 2, 2010 and will disembark in Pago Pago, American Samoa on February 7, 2010. The individuals will travel aboard the vessel to perform cabaret shows for the passengers. ISSUES Whether the use of the non-coastwise-qualified vessel in the itineraries described above constitute an engagement in coastwise trade in violation of 46 U.S.C. § 55103? If the coastwise laws are applicable, whether the individuals described above would be “passengers” 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 the facts presented, 46 U.S.C. § 55103 is inapplicable to the third individual’s itinerary. That individual will embark the non-coastwise-qualified vessel in Honolulu, Hawaii and disembark at Pago Pago, American Samoa. U.S. Customs and Border Protection (“CBP”) has long held that the coastwise laws are inapplicable to American Samoa. See 48 U.S.C. 1664; see also Headquarters Ruling Letter 111581, dated July 25, 1991; Headquarters Ruling Letter 115666, dated May 20, 2002; Headquarters Ruling Letter 111878, dated September 4, 1991. Consequently, the subject individual will not be in violation of the coastwise statutes insofar as her transportation does not involve disembarkation at a coastwise port. Since the two remaining individuals will be embarking and disembarking at coastwise points, however, 46 U.S.C. § 55103 is applicable to their itineraries. 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, 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 two remaining individuals would be traveling aboard the non-coastwise-qualified vessel to perform cabaret shows for the purpose of entertaining the passengers aboard the vessel. Pursuant to Headquarters Ruling Letter 101699, dated November 5, 1975, it is well settled that "workmen, technicians, or observers transported by vessel between ports of the United States are not classified as ‘passengers’ within the meaning of section 4.50(b) and section 289 [now section 55103] if they are required to be on board to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage." See also Headquarters Ruling Letter H054596, dated March 17, 2009 (cabaret performers are not “passengers”); Headquarters Ruling Letter H018736, dated November 1, 2007 (singer is not a “passenger”); Headquarters Ruling Letter H055498, dated May 22, 2009 (dancers are not “passengers”); Headquarters Ruling Letter H017032, dated September 14, 2007 (comedian is not a “passenger”). Under the facts presented, the individuals would be “directly and substantially” related to the operation and business of the vessel during the voyage and would not be considered “passengers” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individuals is not in violation of 46 U.S.C. § 55103. HOLDINGS The use of the non-coastwise-qualified vessel in the third itinerary described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. The individuals traveling on the remaining two itineraries 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 is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch