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

HQ H014770 August 6, 2007 VES-3-02-OT:RR:BSTC:CCI H014770 LLB CATEGORY: Carriers Mr. Atul Agarwal C/O Eurasia Ship Management (Shanghai) Co. Ltd. Unit A & K, 23rd Floor, 588 Pudong South Road, Pudong, Shanghai PR China 200120 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Agarwal: This letter is in response to your correspondence of August 1, 2007, in which you inquire about the coastwise transportation of the individual mentioned therein aboard the MSC DEBRA. Our decision follows. FACTS The voyage in question involves your transportation aboard the non-coastwise-qualified MSC DEBRA (the “vessel”). You will embark in New York, New York on or about August 11, 2007, for the purpose of, inter alia, inspecting the vessel in order to prepare repair and work plans; train the crew on your company’s safety management system; and implementing a vessel maintenance plan. The foregoing responsibilities are expected to be completed on or about August 15, 2007, at which point the subject individual will disembark in Freeport, Bahamas. ISSUE Whether the individual described in the FACTS section above is a “passenger” 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). Further, the CBP regulations provide that if a passenger is on a voyage to one or more coastwise ports and a nearby foreign port or ports (but at no other foreign port) and the passenger disembarks at a coastwise port other than the port of embarkation, there is a violation of the coastwise law. You state that you will be transported on the vessel for the purpose of inspecting the vessel in order to prepare repair and work plans; train the crew on your company’s safety management system; and implementing a vessel maintenance plan. 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. HQ 101699(Nov. 5, 1975); see also HQ 116721(Sept. 25, 2006) quoting HQ 101699. In the present case, to the extent you 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, you would not be considered a passenger. We find that the proposed activity in this case is directly and substantially connected with the operation and business of the vessel. Therefore, we determine that you would not be a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, any coastwise transportation would not be in violation of 46 U.S.C. § 55103. We note that any transportation directly from New York to Freeport does not constitute coastwise trade. HOLDING The subject individual is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103. Furthermore, any transportation of the individual directly from New York to Freeport does not constitute coastwise trade. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch