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

HQ H009580 April 12, 2007 VES-3-02-OT:RR:BSTC:CCI H009580 LLB CATEGORY: Carriers Mr. LeVar O. Kennings Manager, Port Operations Norwegian Cruise Line 7665 Corporate Center Drive Miami, FL 33126 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Kennings: This letter is in response to your correspondence of April 11, 2007, in which you inquire about the coastwise transportation of the two individuals mentioned therein aboard the M/S NORWEGIAN WIND. Our decision follows. FACTS The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified M/S NORWEGIAN WIND (the “vessel”) from Kona, Hawaii to Honolulu, Hawaii. The individuals are expected to embark in Kona on April 24, 2007 and disembark in Honolulu on April 27, 2007. The individuals will be assisting the onboard accounting department with transitioning financial accountability from Norwegian Cruises to another cruise operator. 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 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 the individuals will be transported on the vessel for the purpose of assisting the onboard accounting department with transitioning financial accountability from Norwegian Cruises to another cruise operator. 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 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(Nov. 5, 1975); see also HQ 116721(Sept. 25, 2006) quoting HQ 101699; HQ H008038 (Mar. 9, 2007)(holding that Quality Assurance Manager responsible for audit hotel operations was not a passenger for purposes of 46 U.S.C. § 55103). In the present case, to the extent that these two 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 individuals would not be considered passengers. Based upon the fact that these two individuals will be engaged in overseeing the transition of the onboard accounting operations of the vessel during the voyage, as described herein, we find that these individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of these two individuals is not in violation of 46 U.S.C. § 55103. HOLDING The two individuals described herein 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 those two individuals is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch