Coastwise transportation; passengers; 46 U.S.C. §55103

HQ H006264 February 5, 2007 VES-3-02-RR:BSTC:CCI H006264 CK CATEGORY: Carriers Capt. Howard A. Newtoff Royal Caribbean International 1050 Caribbean Way Miami, FL 33132 RE: Coastwise transportation; passengers; 46 U.S.C. §55103 Dear Capt. Newtoff: In your letter transmitted by facsimile on February 1, 2007, you requested that 496 contractors and various Royal Caribbean International (RCI) workers be allowed to travel aboard your company’s foreign-flagged vessel RHAPSODY OF THE SEAS during a round trip voyage between Galveston, TX and a shipyard in Mobile, AL. Our ruling on your request follows. FACTS: You requested that 496 contactors and various RCI workers be allowed to travel aboard the foreign-flagged RHAPSODY OF THE SEAS on a round trip voyage between Galveston, TX and a shipyard in Mobile, AL. The request is for the period of February 9, 2007 and February 18, 2007. A spreadsheet is attached to the request setting forth the 496 workers and their purpose for being aboard the vessel, which includes: cabin refurbishment; water fountain work; restaurant refurbishment; facilities consultants and refurbishment; floorlayers; installation of galley equipment; wood floor restoration; cleaning and polishing of sculptures and windows; upholstery cleaning; installation of dry cleaning machines; tile installation; renewal of exhaust gas boilers; various electric work; piping; engine work; davit inspection; safety training; tender boat repair; maintenance and refurbishment; rerouting ballast line and steam valves; settling tanks; VDR inspection; repair of the small steam heating coils and replace stainless steel dripping pans; closed-circuit TV installation; replace bed frames and mattresses; HVAC; ship manager; director fleet; various managers and logistic coordinators; inspections; propulsion maintenance; training officer; PBD upgrade; POS system upgrade; wireless upgrade; I-café upgrade; front desk; server health check; deployment of systems; technicians, project managers; and directors; satellite upgrade; encore upgrade; cabling team; UPS installation team; casino cabling; audio engineers and technicians; costumers; and managers and inspections. ISSUE: Whether the contractors and other individuals described above would be passengers under the coastwise passenger statute, 46 U.S.C. §55103. LAW AND ANALYSIS: The coastwise passenger statute, 46 U.S.C. §55103(recodified from former 46 U.S.C. App. 289; Pub.L. 109-304 October 6, 2006) provides that no 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), unless it has been documented for the coastwise trade under chapter 121 of Title 46, United States Code. Under section 55103 (see 19 CFR 4.80a(a)(5)), 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)). In this regard, as resolved in a June 5, 2002, Customs Bulletin notice (Vol. 36, No. 23, p. 50, persons transported on a vessel would be passengers unless they were “directly and substantially” connected with the operation, navigation, ownership, or business of that vessel itself. In the current context, Headquarters ruling (HQ) 116752, of November 3, 2006, is instructive in explaining the operative administrative law applicable in this context, as follows: [T]he 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 [now section 55103] 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)). HQ 116752 (emphasis added) (executive chef of cruise line transported aboard its vessel “to monitor and access the standards of [vessel’s culinary operation onboard” found to be connected with that vessel’s operation/business, and not considered passenger). Further we note that 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 section 4.50(b) and 46 U.S.C. §55103 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. HQ 101699 (November 5, 1975); see also HQ 116721 (September 25, 2006, quoting HQ 101699), and HQ H005405, January 17, 2007. By contrast, “[p]ersons who are on board a vessel solely to perform functions after the vessel’s arrival at its destination have consistently been held to be passengers within the meaning of section 4.50(b)” (HQ 104260, of October 16, 1979 (emphasis added)). Accord, HQ 103318, of April 5, 1978; HQ 105761, of August 27, 1982. See also HQ 116721, supra (stevedores when transported aboard vessel to lade cargo at coastwise destination were passengers under former section 289). In the present case, the contractors and RCI employees described above are directly and substantially connected to the operation or business of the vessel, based on their shipboard activities described above, and are not passengers for purposes of 46 U.S.C. §55103. However, we note that this ruling is limited to the information supplied and the timeframe requested, February 9, 2007 to February 18, 2007. In other words, those contractors and employees who boarded the ship prior to February 9, 2007 and who will remain aboard beyond February 18, 2007, and those whose purpose on being aboard the ship was not submitted are outside the scope of this ruling. HOLDING: Under the facts presented, the contractors and RCI employees described above are not passengers for purposes of administering 46 U.S.C. §55103. Hence, the proposed coastwise transportation of these workers aboard the RHAPSODY OF THE SEAS would not be in violation of 46 U.S.C. §55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers & Immigration Branch