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

HQ H027837 May 9, 2008 VES-3-02-RR:BSTC:CCI H027837 CK CATEGORY: Carriers Mr. Ted C. Lee, Jr. Mid-Gulf/South Atlantic Manager NSA Agencies, Inc. 261 North Joachim Street Mobile, AL 36603 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Lee: This is in response to your correspondence of May 7, 2008, in which you inquire about the coastwise transportation of the five individuals mentioned therein aboard the M/V HELLENIC SKY. Our decision follows. FACTS The voyage in question involves the transportation of a five man working crew aboard the non-coastwise-qualified M/V HELLENIC SKY (the “vessel”) from Mobile, AL to New Orleans, LA. The five individuals are expected to embark in Mobile, AL on or about May 10, 2008 and will perform cargo hold cleaning operations during the subject voyage so that the vessel may pass inspection in order to pick up its grain cargo in New Orleans, LA. The cargo hold cleaning includes removing residue coal cargo and stains from the cargo holds, bulkheads, side shell plating, and tank tops. The five individuals will disembark in New Orleans, LA on or about May 12, 2008. ISSUE Whether the five man working crew described in the FACTS section above are “passengers” 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. § 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). You state that the five man working crew will be transported on the vessel for the purpose of cargo hold cleaning. The vessel will need to pass grain inspections upon arrival in New Orleans, LA before it may load its next grain cargo. 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 H017327, dated September 19, 2007 and HQ 116721(Sept. 25, 2006) quoting HQ 101699. See also, HQ H015504 (August 10, 2007) and HQ H021837 (January 14, 2008) (working crews aboard vessels to clean holds prior to loading new merchandise in next port not classified as “passengers.”). 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 five man working crew will be engaged in cleaning the holds of the vessel 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 subject individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch