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

HQ H023903 March 6, 2008 VES-3-02-OT:RR:BSTC:CCI H023903 LLB CATEGORY: Carriers Mr. Paul Walsh Norton Lilly International Conley Terminal 940 East First Street Boston, Massachusetts 02127 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Walsh: This letter is in response to your correspondence of February 26, 2008, in which you request a "waiver of the Jones Act." Insofar as your inquiry involves the coastwise transportation of the individual mentioned therein and not merchandise, we are construing your inquiry as a ruling request to determine the applicability of the Passenger Services Vessel Act, codified at 46 U.S.C. § 55103, to the facts you have provided to this office. Our decision follows. FACTS The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/V COSCO MELBOURNE (the "vessel") from Boston, Massachusetts to Charleston, South Carolina. The subject individual will embark in Boston on March 26, 2008, for the purpose of performing an ISM (International Safety Management) inspection and an ISPS (International Ship's Personnel Safety) inspection. The inspections are expected to be completed on March 28, 2008, at which time the subject individual will disembark in Charleston. ISSUE Whether the individual described in the FACTS section above is a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). 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. § 551031 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). You state that the subject individual will be transported on the vessel for the purpose of performing an ISM (International Safety Management) and an ISPS (International Ship's Personnel Safety) inspection. 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 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 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. In the present case, to the extent the individual 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 individual would not be considered a passenger.2 The subject individual is not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise travel, as described above, is not in violation of 46 U.S.C. § 55103.3 HOLDING The subject individual is not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch 1 Recodified by Pub. L. 109-304, enacted on October 6, 2006. 2 See HQ 116721, supra; and see HQ 116659 (May 19, 2006) (referencing the "direct and substantial" test); see also, e.g., Customs telex 104712 (July 21, 1980) (finding that repairman were not passengers when carried aboard a foreign vessel between U.S. ports "for [the] purpose of repairing vessel en route between such ports."). 3 We note that our determination is based only on the voyage as it is described in the "FACTS" section herein.