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

HQ H053637 March 5, 2009 VES-3-02-OT:RR:BSTC:CCI H053637 JLB CATEGORY: Carriers Mr. Leon Sutcliffe Carnival Cruise Lines Carnival Place 3655 NW 87 Avenue Miami, Florida 33178-2428 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Sutcliffe: This letter is in response to your correspondence dated March 4, 2009, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the CARNIVAL PARADISE 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 CARNIVAL PARADISE (“the vessel”). The twenty-nine individuals will embark on March 9, 2009 at Long Beach, California and will disembark at the port of Catalina Island, California on March 10, 2009. The individuals, who include twenty-seven staff and two Carnival Cruise Lines employees, will travel aboard the vessel to film a Fun Director direct response TV commercial as part of Carnival Cruise Lines new television and media advertising campaign. ISSUE 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 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. CBP has long held that a film crew and cast, regardless of whether they are employees of the vessel owner or independent contractors, engaged in filming a movie or promotional video are “passengers” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). See Headquarters Ruling Letter H008038, dated March 9, 2007 (a film crew and cast filming a promotional video for a cruise line are “passengers”); see also Headquarters Ruling Letter 116668, dated July 25, 2006; Headquarters Ruling Letter H030297, dated June 10, 2008. Although filming a direct response TV commercial to be utilized as part of a new advertising campaign may foster the business of Carnival Cruise Lines, it does not connect the individuals directly and substantially with the business of the vessel itself. Thus, the subject individuals would be considered “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individuals is in violation of 46 U.S.C. § 55103. HOLDING The subject individuals 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 is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch