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

HQ H020822 December 13, 2007 VES-3-02-RR:BSTC:CCI H020822 CK CATEGORY: Carriers Steve Kofinas Program Manager Maersk Line Ltd. One Commercial Place 20th Floor Norfolk, VA 23510-2103 RE: Coastwise transportation; passengers; 46 U.S.C. §55103 Dear Mr. Kofinas: In your request of December 12, 2007, you seek to have one individual travel aboard the non-coastwise-qualified vessel M/V SEALAND ACHIEVER on a voyage from Charleston, SC to Houston, TX. Our ruling on your request follows. FACTS: You requested that one individual form Condition Analyzing, Corp. be allowed to travel aboard the non-coastwise-qualified M/V SEALAND ACHIEVER on a voyage from Charleston, SC to Houston, TX. This individual would embark on or about December 15, 2007 at Charleston, SC and disembark on or about December 19, 2007 in Houston, TX. The Condition Analyzing, Corp. employee is joining the vessel to do a vibration analysis of the equipment including the main engine. ISSUE: Whether the individual 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 employee from Condition Analyzing, Corp. will board the M/V SEALAND ACHIEVER to do a vibration analysis of the equipment including the main engine. The Condition Analyzing Corp. employee 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 individual described above is not a passenger for purposes of administering 46 U.S.C. §55103. Hence, the proposed coastwise transportation of the Condition Analyzing Corp. employee aboard the M/V SEALAND ACHIEVER would not be in violation of 46 U.S.C. §55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers & Immigration Branch