United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1997 HQ Rulings > HQ 112890 - HQ 113749 > HQ 112982

Previous Ruling Next Ruling
HQ 112982





January 12, 1994

VES-3-06-CO:R:IT:C 112982 GEV

CATEGORY: CARRIER

Gene Levy
King Kona Productions, Inc.
100 Universal City Plaza
Bungalow 108
Universal City, California 91608

RE: Coastwise Trade; Film Making; 46 U.S.C. App. 289, 883

Dear Mr. Levy:

This is in response to your facsimile of January 5, 1994, regarding the use of two foreign-built vessels in the shooting of a film in Hawaii. Our ruling on this matter is set forth below.

FACTS:

In April of 1994, King Kona Productions, Inc. ("King Kona") will commence shooting a futuristic sailing film in Hawaii starring Kevin Costner. King Kona purchased two 60' trimarans built in France by Jeanneau to be used in the film. Jeanneau was the only factory in the world that could build these very unique, sophisticated vessels within the desired time frame. The hulls for these boats will arrive in Kona, Hawaii, on or about February 15, 1994, for final assembly. After assembly, the boats will be sailed by Kevin Costner and other employees of King Kona solely for the purpose of being filmed by King Kona's cinematographers. The boats will not carry any passengers for hire or be engaged in commerce.

ISSUE:

Whether the proposed use of the two foreign-built vessels in question for the production of a film in Hawaii constitutes a violation of 46 U.S.C. App. 289 and/or 883.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, 883 (46 U.S.C. App. 883), the merchandise coastwise law often called the "Jones Act", provides in part, that no merchandise shall be transported between points in the United States embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any vessel other than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States (i.e., a coastwise-qualified vessel). Section 289 of title 46 (46 U.S.C. App. 289, the passenger coastwise law which appears to be more relevant to your concerns) as interpreted by the Customs Service, prohibits the transportation of passengers between points in the United States embraced within the coastwise laws, either directly or by way of a foreign port, in a non-coastwise-qualified vessel (see above). For purposes of 289, "passenger" is defined as "... any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business." (19 CFR 4.50(b)) The connection must be direct and immediate, not a remote or hypothetical connection or a connection related only to future voyages.

The coastwise laws generally apply to points in the territorial sea, 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, in cases where the baseline and the coastline differ.

In its administration of 46 U.S.C. App. 289, the Customs Service has ruled that the carriage of passengers entirely within territorial waters, even though the passengers disembark at their point of embarkation and the vessel touches no other coastwise point, is considered coastwise trade subject to coastwise laws. However, the transportation of passengers to the high seas (i.e., beyond U.S. territorial waters) and back to the point of embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point, often called a "voyage to nowhere", is not considered coastwise trade. (29 O.A.G. 318 (1912))

In regard to the applicability of 46 U.S.C. App. 289 to the making of a movie or film aboard a non-coastwise-qualified vessel not owned by the company making the movie or film, Customs has held that the mere carriage of the cast and technicians aboard such a vessel is not a sufficient nexus to the vessel's operation, navigation, ownership or business to conclude they are other than passengers within the meaning of 19 CFR 4.50(b). Consequently, their transportation aboard such a vessel between two United States points constitutes a violation of 46 U.S.C. App. 289. (Customs Rulings MA 212, dated July 3,1957; 104007, dated June 26, 1979; and 105979, dated February 9, 1983)

However, the carriage of these passengers from a United States point to a point on the high seas and their return to their point of embarkation (i.e., a "voyage-to-nowhere" as discussed above) would not violate 46 U.S.C. App. 289.

In your letter you state not only that King Kona owns the two French-built trimarans in question, but also that they will be sailed by Kevin Costner and other employees of your company during the filming of the movie. If in fact that is the case, Mr. Costner and these employees would have a sufficient nexus to the operation, navigation, ownership and business of the vessel (akin to crew members) so as not to be considered passengers within the meaning of 19 CFR 4.50(b). Consequently, their transportation aboard these vessels between United States points would not constitute a violation of 46 U.S.C. App. 289. If at any time during the filming individuals other than the afore- mentioned are transported aboard these vessels, they would be considered passengers within the meaning of 19 CFR 4.50(b) and their transportation must be pursuant to a "voyage-to-nowhere" as discussed above in order to be in compliance with the provisions of 46 U.S.C. App. 289.

We note that with regard to cameras, film and other equipment used for making the film, pursuant to 46 U.S.C. App. 883 such articles may not be transported between United States points on board the subject vessels. They may, however, be transported on board for purposes of filming provided their point of lading and unlading is the same.

HOLDING:

The proposed use of the two foreign-built vessels in question for the production of a film in Hawaii would not violate 46 U.S.C. App. 289 provided any individuals transported on board the vessel other than those discussed above are transported pursuant to a "voyage-to-nowhere." Any cameras, film and other equipment used for making the film and transported aboard these or other non- coastwise-qualified vessels must be laded and unladed at the same point so as not to incur a violation of 46 U.S.C. App. 883.

Sincerely,

Arthur P. Schifflin

Previous Ruling Next Ruling