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

HQ H017792 October 5, 2007 VES-3-02-OT:RR:BSTC:CCI H017792 JLB CATEGORY: Carriers Mr. Jonas R. Lyborg NSB Niederelbe Schiffahrtsgesellschaft mbH & Co. KG P.O. Box 448 Fairhope, Alabama 36533 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Lyborg: This letter is in response to your correspondence dated September 27, 2007, in which you request a ruling on whether your coastwise transportation aboard the CMA CGM JAMAICA constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyage in question involves your transportation aboard the non-coastwise-qualified CMA CGM JAMAICA (“the vessel”). You will embark on October 24, 2007 at Savannah, Georgia and will disembark at the port of Newark, New Jersey on or about October 27, 2007. You have stated that you will travel aboard the vessel in order to carry out an International Ship Management (“ISM”) and an International Ship and Port Security (“ISPS”) audit, inspection and training. You will also conduct a complete vessel and crew inspection. ISSUE Whether the individual 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 would be traveling aboard the non-coastwise-qualified vessel to conduct an ISM and ISPS audit, inspection and training as well as perform a complete vessel and crew inspection. Under the facts presented, you would be “directly and substantially” related to the operation and business 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 You are not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, your coastwise transportation is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch