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

HQ H017412 September 21, 2007 VES-3-02-OT:RR:BSTC:CCI H017412 JLB CATEGORY: Carriers Sascha Kruse Quality and Safety Officer Hanseatic Shipping (Deutschland) GmbH & Co. KG Brandstwiete 120457 Hamburg Germany RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Kruse: This letter is in response to your email correspondence dated September 20, 2007, in which you request a ruling on whether your coastwise transportation mentioned therein aboard the M/V NYK COSMOS constitutes a violation of 46 U.S.C. § 55103. You supplemented your request with an email on September 21, 2007 containing further details about the functions the individual will perform while aboard. Our ruling on your request follows. FACTS The voyage in question involves you, the quality and safety officer, being transported aboard the non-coastwise-qualified M/V NYK COSMOS (“the vessel”). You will embark on September 29, 2007 at New York, New York and disembark at the port of Savannah, Georgia on or about October 5, 2007. You will travel aboard the vessel as a quality and safety officer in order to conduct a routine annual inspection of the condition of the vessel. You will perform a full check of the vessel’s condition including conducting checks of the necessary certificates, life saving and fire equipment, and all deck and engine equipment. ISSUE Whether the quality and safety officer described above would be a “passenger” 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, Customs Bulletin notice, dated June 5, 2002, 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 Headquarters Decision 116659, dated May 19, 2006; see also Headquarters Decision H005913, dated January 26, 2007. Pursuant to Headquarters Decision 101699, dated November 5, 1975, it is well settled that "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 section 289 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." See also Headquarters Decision 116752, dated November 3, 2006, quoting HQ 116721. In the present case, you, as the quality and safety officer, would be traveling aboard the non-coastwise-qualified vessel to carry out a routine annual inspection. Under the facts presented, you would be “directly and substantially” related to the operation of the vessel during the voyage and would not be considered a “passenger” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, your coastwise transportation is not in violation of 46 U.S.C. § 55103. HOLDING The quality and safety officer 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 an individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch