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HQ 116752

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November 3, 2006

VES-3-02-RR:BSTC:CCI 116752 rb

CATEGORY: CARRIER

LeVar O. Kennings
Manager, Port Operations
Norwegian Cruise Line
7665 Corporate Center Drive
Miami, FL 33126

RE: Coastwise transportation; Cruise line employees; 46 U.S.C. App. 289

Dear Mr Kennings:

In your letter of October 24, 2006, you request that a corporate executive chef employed by your cruise line be allowed to travel aboard your foreign-flagged vessel, M/S NORWEGIAN DAWN, from Port Canaveral, FL, on October 31, 2006, to New York, NY, on November 5, 2006. Our ruling on your request follows.

FACTS:

A corporate executive chef employed by a cruise line would be transported aboard its foreign-flagged cruise vessel from Port Canaveral, FL, on October 31, 2006, to New York, NY, on November 5, 2006, where the chef would disembark. The cruise line has stated that the corporate executive chef would be traveling aboard the vessel “to monitor and access the standards of our culinary operation onboard.”

ISSUE:

Whether the cruise line’s corporate executive chef would be a passenger under the coastwise passenger statute, 46 U.S.C. App. 289.

LAW AND ANALYSIS:

The coastwise passenger statute, 46 U.S.C. App. 289, provides that no foreign vessel may transport passengers between ports or places in the United States either directly or by way of a foreign port, upon a penalty of $300 for every passenger so transported and landed (see 19 CFR 4.80(b), adjusting the penalty
to $300 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990). Under section 289, a “passenger” is any person carried aboard a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business (19 CFR 4.50(b); and see 19 CFR 4.80a(a)(5)). In this regard, as resolved in a June 5, 2002, Customs Bulletin notice (Vol. 36, No. 23), persons transported on a vessel would be considered passengers unless they were “directly and substantially” connected with the operation, navigation, ownership or business of that vessel itself.

General Letter No. 117, dated May 20, 1916, which originally set forth the meaning of the term “passenger” appearing in 19 CFR 4.50(b), is cited as authority for permitting the executive chef to be transported coastwise aboard the vessel. However, this General Letter specifically found that only the officers of the company owning a vessel, and, if a corporate owner, the members of its board of directors, would, by virtue of their positions as such, be connected with the ownership or business of that vessel so as not to be passengers while being carried aboard. The corporate executive chef would not appear to fall within either of these categories.

Nevertheless, as explained in Headquarters ruling (HQ) 101699, of 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 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, HQ 116721, of September 25, 2006, quoting HQ 101699.

Along these same lines, “the Customs Service [now Customs and Border Protection (CBP)] has repeatedly ruled that if any persons are transported coastwise who are bona fide agents of the line or officers of companies acting as such agents and if such persons while on the voyage are concerned with observing and appraising the facilities offered, such persons... are not ‘passengers’” under section 289 and § 4.50(b) (emphasis added) (HQ 103410, of May 5, 1978 (operations manager of freight line transported coastwise aboard freight line’s vessel to observe vessel’s operational pattern thereby deemed connected with operation and business of vessel so as not to be passenger when being transported for this purpose)).

Similarly, in the present case, a corporate executive chef of the cruise line would be transported coastwise aboard the cruise line’s vessel to observe and appraise the vessel’s onboard culinary operation (“to monitor and access the standards of [the vessel’s] culinary operation onboard”). Consequently, under these circumstances, the corporate executive chef would necessarily be connected with the operation and/or business of the vessel itself, and would thus not be a passenger, while being transported aboard the vessel for these purposes.

HOLDING:

Under the circumstance presented, since the cruise line’s corporate executive chef would be transported coastwise aboard the cruise line’s vessel to observe and appraise the vessel’s onboard culinary operations, the chef while being transported for these purposes would necessarily be connected with the operation and/or business of the vessel itself. Thus, the corporate executive chef would not be a passenger when so transported, and such transportation would not be in violation of 46 U.S.C. App. 289.

Sincerely,

/S/ Glen E. Vereb

Glen E. Vereb

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