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

HQ H019724 November 19, 2007 VES-3-02-RR:BSTC:CCI H019724 CK CATEGORY: Carriers Lionel DSouza Operations Manager S5/Norton Lilly International 952 Houston Northcutt Blvd, Suite 100 Mount Pleasant, SC 29464 RE: Coastwise transportation; passengers; 46 U.S.C. §55103 Dear Mr. DSouza: In your email letter of November 14, 2007, you requested that one manager/superindent be allowed to travel aboard the non-coastwise-qualified vessel MOSEL ACE on a voyage from Charleston, SC to Baltimore, MD. Our ruling on your request follows. FACTS: You requested that one manager/superintendent employed by Barber Ship Manaement Snd Bhd of Kuala Lumpur, Malaysia be allowed to travel aboard the non-coastwise-qualified MOSEL ACE on a voyage from Charleston, SC to Baltimore, MD. This manager/superintendent would embark on or about November 23, 2007 at Charleston, SC and disembark on or about November 27, 2007 in Baltimore, MD. The manager/superintendent will board the vessel to: Inspect the decks and engine room including all equipment. Inspect some of the ballast tanks in order to plan maintenance and upkeep. Discuss safety operations with the Captain and Chief Engineer. Consult with the crew. Take photographs for discussions on needed additions with the vessel owners. Verify compliance with MARPOL requirements regarding pollution and environment. Review navigation procedures for safety compliance. ISM documentation review. Review the planned maintenance system on board. ISSUE: Whether the manager/supervisor 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). In the present case, the manager/supervisor will board the MOSEL ACE to complete a variety of tasks such as reviewing safety procedures, consult with the officers and crew, inspect the vessel and documentation and prepare plans for vessel maintenance. The manager/supervisor is directly and substantially connected to the operation and business of the vessel and is not a passenger for purposes of 46 U.S.C. §55103. HOLDING: Under the facts presented, the manager/supervisor described above is not a passenger for purposes of administering 46 U.S.C. §55103. Hence, the proposed coastwise transportation of the manager/supervisor aboard the MOSEL ACE would not be in violation of 46 U.S.C. §55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers & Immigration Branch