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HQ H023376





May 10, 2008

VES-3-02-OT:RR:BSTC:CCI H023376 LLB

CATEGORY: CARRIER

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)

Dear Ms. Yamagishi:

This letter is in response to your correspondence dated February 14, 2008, in which you inquire about the coastwise transportation of the five individuals mentioned therein aboard the M/S ASUKA II. Our decision follows.

FACTS

The voyage in question involves the transportation of the subject individuals, aboard the non-coastwise-qualified M/S ASUKA II (the “vessel”). The individuals will embark in New York, New York on June 9, 2008 and disembark in New Orleans, Louisiana on June 16, 2008. Three of the individuals are entertainers, specifically, musicians that play the banjo, guitar, and mandolin. Two of the individuals will provide a "[l]ecture about New Orleans to the passengers onboard."

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. The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103

Recodified by Pub. L. 109-304, enacted on October 6, 2006. 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 three of the subject individuals, musicians, will be transported on the vessel for the purpose entertaining the passengers aboard the vessel, as described above. 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 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); and HQ H017032 (Sept. 14, 2007) (comedian).

In the present case, to the extent these three 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 individual would not be considered passengers. See HQ 116721, supra; and see HQ 116659 (May 19, 2006)(referencing the “direct and substantial” test); see also, e.g., Customs telex 104712 (July 21, 1980)(finding that repairman were not passengers when carried aboard a foreign vessel between U.S. ports “for [the] purpose of repairing vessel en route between such ports.”); HQ 115257 (Jan. 10, 2001)(holding that entertainment staff were not considered passengers within the meaning of 19 C.F.R. § 4.50(b)).

With regard to the remaining two individuals who will be providing a lecture about New Orleans, as described above, we have determined that those individuals are considered passengers. In CBP Ruling HQ H011874 (May 31, 2007), CBP held that individuals transported aboard a vessel to “embark as clothing consultants and they will just 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. Similarly, in the present case, you proposed to transport two individuals who will provide a "[l]ecture about New Orleans to the passengers onboard." 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 three entertainers/musicians are not “passengers” and the two New Orleans "lecturers" are "passengers." Accordingly, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103. We note that our determination is based only on the voyage as it is described in the “FACTS” section herein.

HOLDING

The three individuals that will be performing for the cruise passengers, 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 two individuals that will be providing lectures about New Orleans, 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 individuals would be in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb
Chief

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