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

HQ H018935 November 2, 2007 VES-3-02-OT:RR:BSTC:CCI H018935 LLB CATEGORY: Carriers Mr. Julius Calcagno, Jr. General Steamship Corporation Limited 3636 North Causeway Boulevard, Suite 201 Metairie, Louisiana 70002 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Calcagno: This letter is in response to your correspondence of October 24 and 26, 2007, in which you inquire about the coastwise transportation of four individuals mentioned therein aboard the M/V FULL WEALTH. Our decision follows. FACTS The voyage in question involves the transportation of the subject individuals currently aboard the non-coastwise-qualified M/V FULL WEALTH (the “vessel”) from New Orleans, Louisiana to Tampa, Florida and from Tampa returning to New Orleans. The individuals are performing cargo hold cleaning operations during the subject voyage and will be staying aboard the vessel during its stop in Tampa. The subject individuals will disembark in New Orleans on or about November 2, 2007. ISSUE Whether the use of a non-coastwise qualified vessel in the voyage described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. 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). In addition, 19 C.F.R. § 4.80a(b)(1) provides that there is a violation of the coastwise laws if a passenger is on a voyage solely to one or more coastwise ports and the passenger disembarks or goes temporarily ashore at a coastwise port. In this regard, we note that the terms “embark” and “disembark” for purposes of § 4.80a, are defined in paragraph (a)(4) of that section, which provide: Embark means a passenger boarding the vessel for the duration of a specific voyage and disembark means a passenger leaving a vessel at the conclusion of a specific voyage. The terms embark and disembark are not applicable to a passenger going ashore temporarily at a coastwise port who reboards the vessel and departs with it on sailing from the port. (emphasis in original). The regulatory history to 19 C.F.R. § 4.80a(a)(4), as amended provides, in pertinent part: The terms “embark” and “disembark” are trade words of art which normally mean going on board a vessel for the duration of a specific voyage and leaving a vessel at the conclusion of a specific voyage. In this normal context the words do not contemplate temporary shore leave for any specific number of hours during a voyage. It has been determined that the use of the terms in the statutory language “so transported and landed” means [] final and permanent disembarking . . . Customs Regulations Amendments Relating to Passengers on Foreign Vessels Taken on Board and Landed in the United States, 50 Fed. Reg. 26981 (July 1, 1985)(internal Attorney General Opinion citations omitted); Treas. Dec. 85-109. Thus, based on the regulatory history to 19 C.F.R. § 4.80a, a passenger is considered “disembarked” from a vessel when the passenger “finally and permanently” leaves the vessel at the conclusion of the specific voyage. Based on the facts you provided, the coastwise laws are inapplicable to the subject individuals’ voyage. Although the subject individuals will embark the vessel at New Orleans, Louisiana, a U.S. port, the individuals are disembarking at the same U.S. port, i.e., New Orleans without going ashore temporarily at the vessel’s intervening stop in Tampa. Therefore, these individuals will not be in violation of the coastwise laws insofar as their transportation does not involve disembarkation at a coastwise port other than the port of embarkation. Nevertheless, the individuals would not be considered passengers. You state that the subject individuals will be transported on the vessel for the purpose of cargo hold cleaning. 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 the 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 the individuals will be engaged in cargo hold cleaning during the voyage, we find that such 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 such individuals is not in violation of 46 U.S.C. § 55103. HOLDING The use of a non-coastwise qualified vessel in the voyage described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch