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

HQ H018857 October 26, 2007 VES-3-02-RR:BSTC:CCI H018857 CK CATEGORY: Carriers Denny A. Garner Norton Lilly International 9009-1 Regency Square Blvd Jacksonville, FL 32211 RE: Coastwise transportation; passengers; 46 U.S.C. §55103 Dear Mr. Garner: In your letter transmitted by facsimile on October 23, 2007, you requested that a technical superintendent from Astro Shipmanagement, Inc. be allowed to travel aboard the non-coastwise-qualified vessel M/V CHIJIN from Jacksonville, FL to Baltimore, MD. Our ruling on your request follows. FACTS: You requested that one technical superintendent from Astro Shipmanagement, Inc. be allowed to travel aboard the non-coastwise-qualified M/V CHIJIN on a voyage from Jacksonville, FL to Baltimore, MD. This individual would embark November 7, 2007 in Jacksonville and disembark in Baltimore on November 10, 2007. The technical superintendent will board the vessel to perform routine maintenance inspection and ISM and ISPS internal audits. ISSUE: Whether the technical superintendent described above would be a passenger 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). See also, H016883, dated September 12, 2006, wherein we found that an auditor aboard ship to perform ISM/ISPS internal shipboard audits was not a passenger for purposes of section 4.50(b) and 46 U.S.C. §55103. In the present case, the technical superintendent from Astro Shipmanagement, Inc. boarding the M/V CHIJIN to perform routine maintenance inspections and ISM and ISPS internal audits is directly and substantially connected to the operation and business of the vessel and this individual is therefore not a passenger for purposes of 46 U.S.C. §55103. HOLDING: Under the facts presented, the technical superintendent described above is not a passenger for purposes of administering 46 U.S.C. §55103. Hence, the proposed coastwise transportation of this individual aboard the M/V CHIJIN would not be in violation of 46 U.S.C. §55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers & Immigration Branch