Slip Op. 02 - 78
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
CARNIVAL CRUISE LINES, INC., :
HAL ANTILLEN, N.V., :
HAL SHIPPING LTD., and :
WIND SURF LIMITED, :
: Before: MUSGRAVE, JUDGE
Plaintiffs, :
: Consol. Court No. 93-10-00691
v. :
:
THE UNITED STATES, :
:
Defendant. :
____________________________________:
[On remand, the Court considered Plaintiffs’ arguments (1) that the Harbor Maintenance Tax
(“HMT”) should not be imposed on passenger cruises that begin and end at ports which are exempt
from the HMT, but which make layover stops at ports covered by the HMT, and (2) that the “value”
on which the HMT is assessed should only be the actual cost of transportation. Defendant argued
that the Court of Appeals for the Federal Circuit decided in Princess Cruises, Inc. v. United States,
201 F.3d 1352 (Fed. Cir. 2000), that layover stops alone give rise to HMT liability and that this
Court is bound to follow that decision. Defendant also argued that the Court should defer to
Customs’ rulings on the proper calculation of the “value”of the cruise on which the HMT is assessed.
Held: (1) Based on the Federal Circuit’s decision in Princess, Plaintiffs are liable for payment of the
HMT on passengers who disembark the ship at layover ports covered by the HMT, but only after the
issuance of HQ 112511 (Jan. 27, 1993), which resolved the ambiguity in the statute and regulation
on this issue; (2) Customs’ method of calculating the “value” of the cruise fare for HMT assessment
purposes is correct except for the inclusion of “port taxes,” charges for “U.S. Customs and U.S.
Immigration and Naturalization services,” and the inclusion of charges for airfare and certain land-
based services and commissions prior to 1993, which are inconsistent with the HMT statute.
Plaintiff’s motion for partial summary judgment is granted in part, and Defendant’s motion for
summary judgment is granted in part.]
Dated: July 31, 2002
Paul, Weiss, Rifkind, Warton & Garrison (Robert E. Montgomery, Jr. and Robert P. Parker)
for Plaintiffs.
Consol. Court No. 93-10-00691 Page 2
Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Lara Levinson and
Michael Duclos), and Richard McManus, Office of Chief Counsel, United States Customs Service,
of counsel, for Defendant.
OPINION
In this action, plaintiffs Carnival Cruise Lines, Inc., HAL Antillen, N.V., HAL Shipping,
Ltd., and Wind Surf Limited (collectively “Carnival”) contest the assessment and collection of the
Harbor Maintenance Tax (“HMT”)1 on passenger cruise ships by defendant the United States
Customs Service (“Customs”). This matter began in 1992 when Customs audited the HMT paid by
HAL Antillen for the period from April 1, 1987 through December 31, 1991 and assessed
$322,311.00 for alleged underpayments. According to an August 20, 1992 letter from the Regional
Director of Customs’ Regulatory Audit Division the underpayments resulted from HAL Antillen’s
failure to pay the HMT for cruises that made only layover stops at ports subject to the HMT and its
deduction of travel agents’ commissions from the “value” of the cruise fare on which the HMT was
based. After receiving formal notification of the audit results on April 6, 1993, HAL Antillen filed
a timely protest. On October 6, 1993 it requested accelerated disposition its protest pursuant to 19
C.F.R § 174.22(a). After receiving no decision for 30 days, the protest was deemed denied pursuant
to 19 C.F.R § 174.22(d) on November 5, 1993.
Carnival commenced this action in October 1993 and an appeal from the denial of HAL
1
The HMT is a tax on port use calculated at a rate of 0.125 percent of the value of the
commercial cargo. It was enacted pursuant to the Water Resources Development Act of 1986, Pub.
L. No. 99-662, Title XIV, § 1402, 100 Stat. 4266 (1986), and is codified at 26 U.S.C. § 4461-62.
Consol. Court No. 93-10-00691 Page 3
Antillen’s protest was added by an amended complaint. Subsequently, Carnival moved for partial
summary judgment on the issues of (1) whether the HMT should be assessed on cruises that begin
and end at ports that are exempt from the tax, but make layover stops at ports subject to it, and (2)
whether the “value” of the cruise on which the HMT is assessed should include anything more than
the actual cost for transportation. Following the Supreme Court’s decision in United States Shoe
Corp. v. United States, 523 U.S. 360 (1998), aff’g 114 F.3d 1564 (Fed. Cir. 1997), aff’g 19 CIT
1284, 907 F. Supp. 408 (1995), holding the HMT unconstitutional as applied to exports, Carnival
amended its complaint a second time adding a constitutional challenge. This Court held that the
HMT was unconstitutional as applied to passenger cruises; therefore it did not reach the other issues
raised by Carnival. See Carnival Cruise Lines, Inc. v. The United States, 22 CIT 486, 8 F. Supp. 2d
877 (1998). The Court of Appeals for the Federal Circuit reversed this Court’s holding on the
constitutional issue and remanded this action for consideration of the remaining legal issues. See
Carnival Cruise Lines, Inc. v. United States, 200 F.3d 1361, 1369 (Fed. Cir. 2000).
For the reasons which follow, the Court holds that the Federal Circuit’s decision in Princess
Cruises, Inc. v. United States, 201 F.3d 1352 (Fed. Cir. 2000), is controlling on the issue of whether
cruise lines are liable for the HMT when a vessel makes a layover stop at a port subject to the HMT.
Nevertheless, since the Federal Circuit found that the law was ambiguous with respect to layover
stops prior to the issuance of HQ 112511 (Jan. 27, 1993), the Court holds that cruise lines are not
liable for the HMT on cruises which made only layover stops at HMT covered ports prior to January
27, 1993. The Court also holds that Customs should not have included “port taxes” and charges for
“U.S. Customs and U.S. Immigration and Naturalization services” in the cruise “value”on which the
Consol. Court No. 93-10-00691 Page 4
HMT is assessed, but was otherwise correct in assessing the HMT on the price paid for the cruise,
exclusive of land-based services and commissions. Therefore, Carnival’s motion for partial
summary judgment is granted in part and Customs motion for summary judgment is granted in part.
I. Jurisdiction and Standard of Review
Pursuant to 28 U.S.C. § 1581(i) the Court has jurisdiction over Carnival’s claim for
restitution of the amount of HMT that it allegedly overpaid, and pursuant to 28 U.S.C. § 1581(a) the
Court has jurisdiction over the counts in Carnival’s First Amended Complaint appealing the denial
of HAL Antillen’s protest. Summary judgment is appropriate if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” CIT Rule 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
II. Assessment of Harbor Maintenance Taxes for Layover Stops
The HMT is “a tax on any port use,” 26 U.S.C. § 4461(a), and “port use” is defined as “the
loading of commercial cargo on, or . . . the unloading of commercial cargo from a commercial vessel
at a port,” 26 U.S.C. § 4462(a)(1). “The term ‘commercial cargo’ means any cargo transported on
a commercial vessel, including passengers transported for compensation or hire.” 26 U.S.C. §
4462(a)(3)(A). Ports in Alaska, Hawaii, and possessions of the United States are exempt from the
tax. 26 U.S.C. § 4462(b). Although the statute itself does not explain how the HMT is to be
assessed on passengers, 19 C.F.R. § 24.24(e)(4) states that “when a passenger boards or disembarks
Consol. Court No. 93-10-00691 Page 5
a commercial vessel at a port within the definition of this section, the operator of that vessel is liable
for the payment of the port use fee.” In HQ 112511 Customs addressed for the first time the issue
of whether a passenger who “temporarily goes ashore and subsequently gets back on the vessel [at
a layover stop] is considered to have ‘disembarked’ or ‘boarded’ at that port for purposes of 19
C.F.R. § 24.24(e)(4) so as to incur liability on behalf of the vessel operator for the payment of a port
use fee.” Customs concluded that cruise operators are liable for the HMT on passengers who leave
the vessel at these interim stops and that there is a rebuttable presumption that every passenger does
so.
Subsequently, this issue came before the Federal Circuit in an action brought by Princess
Cruises. The Federal Circuit held that both 26 U.S.C. § 4461-62 and 19 C.F.R. § 24.24(e)(4) were
ambiguous with regard to layover stops by cruise ships and gave Chevron deference2 to Customs’
interpretation of the regulation. See Princess Cruises, Inc. v. United States, 201 F.3d 1352, 1359
(Fed. Cir. 2000). The Federal Circuit concluded that:
In light of the clear intent of Congress to impose a fee on all
port use as revealed in the legislative history, the Customs
interpretation including stopovers and layovers in the port use
covered by the HMT is not unreasonable. The HMT is intended to
charge those using the ports for the expense of maintaining the ports.
It is not apparent to us that the use of the port to discharge passengers
for shopping and sight-seeing in a port and then reboard those same
passengers is any less of a use or has any less impact on the port than
boarding or discharging passengers at the beginning or end of a
cruise.
2
Under the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984), if a “statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency’s answer is based on a permissible construction of
the statute.” Id. at 843. “A court may not substitute its own construction of a statutory provision for
a reasonable interpretation made by the administrator of an agency.” Id. at 844.
Consol. Court No. 93-10-00691 Page 6
Id. at 1360.
In the present action, Carnival challenges Customs’ assessment of the HMT for layover stops
on grounds that it is inconsistent with the language of the act, the legislative history, and Customs’
procedures. See Pl.s’ Mot. for Partial Summ. J. at 13-25. Customs asserts that Princess is
dispositive of this issue. See Def.’s Mem. in Supp. of its Cross-Mot. for Summ. J. and in Opp’n to
Pl.s’ Renewed Mot. for Partial Summ. J. at 12-13. Nevertheless, Carnival argues that Princess is
no longer valid following the decisions in United States v. Mead Corp., 533 U.S. 218 (2001), aff’g,
185 F.3d 1304 (Fed. Cir. 1999),3 because the Customs ruling at issue was not adopted pursuant to
the Administrative Procedure Act. See Mem. of Points and Authorities in Support of Pl.s’ Renewed
Mot. for Partial Summ. J. at 17 n.14. Therefore, Carnival concludes that the Court should consider
its substantive legal arguments. Pl.s’ Supplemental Mem. in Supp. of their Renewed Mot. for
Summ. J. and in Opp’n to Def.’s Cross-Mot. for Summ. J. at 3-4.
The Court agrees with Customs that Princess is still valid precedent. Unlike the ruling in
Mead, the ruling at issue in Princess did not interpret a statute, but interpreted a regulation that
interpreted a statute. In Auer v. Robbins, 519 U.S. 452 (1997), the Supreme Court held that an
agency’s interpretation of its own regulation is controlling unless it is “plainly erroneous or
inconsistent with the regulation.” 519 U.S. at 461 (citation omitted). See also Bowles v. Seminole
3
In Mead the Supreme Court held that “administrative implementation of a particular
statutory provision qualifies for Chevron deference when it appears that Congress delegated authority
to the agency generally to make rules carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that authority.” 533 U.S. at 226-27.
“[R]elatively formal administrative procedure tending to foster . . . fairness and deliberation” is one
of the primary indicators that an administrative action is intended to carry the force of law. Id. at
230.
Consol. Court No. 93-10-00691 Page 7
Rock & Sand Co., 325 U.S. 410, 414 (1945); Barnhart v. Walton, __ U.S.__, 122 S. Ct. 1265, 1269
(2002). Therefore, based on the Federal Circuit’s decision in Princess, the Court holds that Carnival
is liable for payment of the HMT on passengers who disembark the ship at layover ports covered by
the HMT.
As a separate issue Carnival contends that Princess only upholds Customs’ assessment of
the HMT for layover stops from the time HQ 112511 was issued in 1993 and does not address the
legality of Customs’ retroactive application of that ruling. Carnival argues that prior to Customs’
pronouncement in HQ 112511 that all passengers were, in the absence of contrary evidence,
presumed to “disembark” at layover ports, cruise line operators were not required to maintain records
of which passengers went ashore and which remained aboard ship and were unaware that they
needed to record such information. See Pl.s’ Mot. for Partial Summ. J. at 23. Carnival argues that
HQ 112511 announced a change of procedure for which there was no “fair notice” given and cites
a number of cases from the Federal Circuit and the United States Court of Appeals for the District
of Columbia Circuit including NEC Technologies v. United States, 54 F.3d 736 (Fed. Cir. 1995),
General Electric Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995), Creswell Trading Co. v. United States,
15 F.3d 1054 (Fed. Cir. 1994), and Satellite Broadcasting Co. v. FCC, 824 F.2d 1 (D.C. Cir. 1987),
for the proposition that an administrative agency cannot penalize a party for non-compliance with
an administrative rule or impose a new evidentiary burden without first providing adequate notice.
See Mem. of Points and Authorities in Support of Pl.s’ Renewed Mot. for Partial Summ. J. at 11-15;
Pl.s’ Reply in Supp. of their Renewed Mot. for Summ. J. and Opp’n to Def.’s Cross-Mot. for Summ.
J. at 26-30. Customs responds to Carnival’s allegations stating:
Consol. Court No. 93-10-00691 Page 8
Customs plainly has not applied any ruling or regulation
“retroactively.” Carnival’s method of HMT payment and the audit
leading to the payments sought in this action are critical. Pursuant to
regulation, cruise lines are responsible for calculating HMT owed and
making quarterly HMT payments. 19 C.F.R. § 24.24(e)(3)(ii). Prior
to 1993, in making these payments, Carnival interpreted the HMT
statute in its favor to exclude layover stops, though the statute applies
to “any port use,” including “loading [and] unloading” of passengers.
26 U.S.C. § 4461 & 4462(a)(1).
In 1993, Customs audited the cruise lines, and exercised its
authority to collect underpayments discovered in the audit. See 19
U.S.C. § 1509(b); 19 C.F.R. § 24.24(h). Those underpayments
include charges for layover stops. Thus, Customs’ actions were not
a reversal of any earlier official position, but merely its reasoned
consideration of the issue presented.
Def.’s Reply to Pl.s’ Reply Mem. in Supp. of Its Mot. for Summ. J. and in Opp’n to Def.’s Cross-
Mot. for Summ. J. at 10-11.
The Court agrees that Carnival should not be held liable for HMT payments on cruises which
made only layover stops at HMT covered ports prior to the issuance of HQ 112511. The Court
concludes that general principles of tax law bear directly on this issue. In International Business
Machine Corp. v. United States, 201 F.3d 1367, 1371-72 (Fed. Cir. 2000), the Federal Circuit
determined that the HMT is an internal revenue tax. See also Citgo Petroleum Corp. v. United
States, 25 CIT __, 104 F. Supp. 2d 106, 107-08 (2000). The Supreme Court has held that:
In the interpretation of statutes levying taxes it is the
established rule not to extend their provisions, by implication, beyond
the clear import of the language used, or to enlarge their operations
so as to embrace matters not specifically pointed out. In case of
doubt they are construed most strongly against the government and in
favor of the citizen.
Consol. Court No. 93-10-00691 Page 9
Gould v. Gould, 245 U.S. 151, 153 (1917) (citations omitted).4 See also Union Pacific Corp. v. The
United States, 5 F.3d 523, 525 (Fed. Cir. 1993) (“[T]he Supreme Court counsels to construe any
reasonable doubts about the meaning of a tax statute in favor of the taxpayer.”). Customs position
on this matter, as stated above, is that the statute unambiguously imposes the HMT on “any port use”
involving “‘loading [and] unloading’ of passengers.” This notion is contrary to the Federal Circuit’s
findings in Princess that: (1) “the language of the statute is not clear and unambiguous about whether
the HMT is to be imposed on stopovers and layovers at HMT-covered ports;” (2) “[the] legislative
history provides some indication that Congress intended for the HMT to apply when a cruise ship
made a stopover or layover in an HMT-covered port, [but] it is not sufficient evidence to indicate
an ‘unambiguous intent;’” and (3) “the regulation itself is ambiguous.” 201 F.3d at 1359. Therefore,
based on the precedent of the Supreme Court and the holdings of the Federal Circuit, the Court
concludes that Carnival is not liable for the HMT assessed on layover stops prior to January 27,
1993, the date on which HQ 112511 was issued.
III. Calculation of the “Value” of the Cruise Fare
The statute imposing the HMT provides that “[t]he amount of the tax imposed . . . on any
port use shall be an amount equal to 0.125 percent of the value of the commercial cargo involved.”
26 U.S.C. § 4461(b). Elsewhere, the HMT statute defines the term “value” in the context of the
4
In Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 (1996), the Supreme Court stated
that “[w]here . . . a court is addressing transactions that occurred at a time when there was no clear
agency guidance, it would be absurd to ignore the agency’s current authoritative pronouncement of
what the statute means.” Id. at 744 n.3. Although Gould and Smiley appear to conflict, this Court
follows Gould in the present action since it deals specifically with the resolution of ambiguity in a
tax statute, which is the precise issue presented.
Consol. Court No. 93-10-00691 Page 10
transportation of passengers as “the actual charge paid for such service or the prevailing charge for
comparable service if no actual charge is paid.” 26 U.S.C. § 4462(a)(5)(B). Customs’ regulation,
19 C.F.R. § 24.24(e)(4)(i), essentially follows the language of the statute, stating that “[t]he fee is
to be based upon the value of the actual charge for transportation paid by the passenger or on the
prevailing charge for comparable service if no actual charge is paid.” In HQ 112511 (Jan. 27, 1993)
Customs addressed what it “consider[ed] ‘transportation costs’ for purposes of 19 C.F.R.
24.24(e)(4)” stating:
In calculating the value of the “actual charge for transportation paid
by the passenger” . . . it was Customs’ position that this should
include those expenditures which comprise the normal fare the cruise
line would charge a passenger for a particular trip, including any
travel agent’s commission and those transportation and lodging costs
included in the overall cruise package in bringing the passenger to
and from the port of embarkation, provided the passenger actually
availed himself of such transportation and lodging. ([HQ] 543896,
dated May 13, 1987). . . .
Upon further review of this matter, Customs remains of the
opinion that the “transportation costs” for passengers of cruise vessels
includes all “embarkation-to-disembarkation” costs as reflected on
passenger tickets, including commissions paid to travel agents, port
taxes, charges for pilotage, U.S. Customs and U.S. Immigration and
Naturalization services, wharfage, and “suite amenities” provided
they are contracted and paid for prior to the commencement of the
voyage (i.e., included in the cost of the ticket). However, after
numerous discussions with representatives of the cruise industry,
Customs is now of the opinion that the costs of land-based lodging
and connecting air transportation are not to be included in Customs’
calculation of the transportation costs under consideration regardless
of whether a passenger avails himself of such transportation and
lodging. Although this position represents a divergence from [HQ]
543896 cited above, Customs believes this revised position
constitutes an equitable resolution of this matter. . . .
In HQ 112844 (Oct. 28, 1993) Customs reaffirmed its conclusions in HQ 112511 except with regard
Consol. Court No. 93-10-00691 Page 11
to travel agents’ commissions, on which it concluded that:
[T]he inclusion of the entire amount of a travel agent’s commission
in the calculation of the aforementioned transportation costs without
regard to whether any portion of such commission is attributable to
the costs of land-based lodging and connecting air transportation is
inconsistent with our position that the transportation costs include all
“embarkation-to-disembarkation” costs. Accordingly, accurate
apportionment of travel agents’ commissions clearly distinguishing
that portion of the commissions attributable to land-based lodging and
connecting air transportation will result in the exclusion of any such
costs from Customs’ calculation of the “value of the actual charge for
transportation paid by the passenger” for purposes of [19 C.F.R. §]
24.24(e)(4).
Carnival argues that Customs’ interpretation is inconsistent with the statute, relevant caselaw,
and the Internal Revenue Service’s interpretations of similar taxes, and contends that charges for
services, amenities, and “pass through” charges should be excluded from the fare amount on which
the HMT is imposed. See Pl.s’ Mot. for Partial Summ. J. at 27-37. Customs, on the other hand,
argues that the Court must defer to its interpretation of the statute. See Def.’s Mem. in Supp. of its
Cross-Mot. for Summ. J. and in Opp’n to Pl.s’ Renewed Mot. for Partial Summ. J. at 4-8.
The Court concludes that when the disputed language is read in the context of the entire
statute, the intent of Congress is clear.5 One of the fundamental aspects of the HMT is that it is
assessed based on “value” rather than tonnage or simply as an equal assessment on all vessels using
a port. In the case of commercial cargo, a shipment of gold would be charged more HMT than a
shipment of lead. Therefore, when 26 U.S.C. § 4462(a)(5)(B) defines “value” in the context of the
transportation of passengers for hire as “the actual charge paid for such service” it follows that the
5
“Where the intent of Congress is clear, that is the end of the matter; for the court, as well
as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467
U.S. 837, 842 (1984).
Consol. Court No. 93-10-00691 Page 12
phrase “such service” refers to the shipboard service that the passenger is buying. In the case of a
cruise, the passenger is buying services and amenities as well as transportation. Calculating the
HMT on basic transportation costs alone would essentially render the tax a flat fee assessed per
passenger.
It is also consistent with the statute to include the percentage of any travel agent commission
that is attributable to making shipboard arrangements as part of the overall shipboard service.
Nevertheless, it is inconsistent to include, as Customs has, port taxes and Customs and Immigration
and Naturalization Service charges in the cruise “value.” While these are passed along to the
passenger as part of the cruise fare, they are not part of the cruise service, but are additional charges
imposed by the relevant government agencies. Thus the Court concludes that the HMT for passenger
cruise ships is properly calculated based on the costs included in the cruise fare, excluding costs for
air transportation to the port of embarkation and land-based services, the percentage of travel agents’
commissions attributable to the air transportation and land-based services, port taxes, and Customs
and Immigration and Naturalization Service charges. Accordingly, Carnival is entitled to a refund
to the extent that it paid the HMT on amounts that should have been excluded from the cruise
“value.”
IV. Conclusion
For the forgoing reasons Carnival’s motion for partial summary judgment is granted in part
as to (1) the retroactive application of HQ 112511, regarding the assessment of the HMT for layover
stops, (2) the inclusion of “port taxes” and charges for “U.S. Customs and U.S. Immigration and
Consol. Court No. 93-10-00691 Page 13
Naturalization services,” and (3) the inclusion of charges for airfare and certain land-based services
and commissions prior to the issuance of HQ 112511 and HQ 112844. Customs’ motion for
summary judgment is granted as to all other issues presently before the Court. The parties shall
confer with each other (i) in an effort to reach a stipulation on the amount of a final judgment in this
matter and (ii) regarding such additional proceedings as may be necessary in this action, and shall
submit a status report to the Court on the results of their conference within 60 days.
________________________________________
R. KENTON MUSGRAVE, JUDGE
Dated: July 31, 2002
New York, New York