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

HQ H028457 May 16, 2008 VES-3-02:RR:BSTC:CCI H028457 ALS CATEGORY: Carriers Mr. Jim Peters Wilhelmsen Ships Service 3220 Blume Drive, Suite 195 Richmond, California 94806 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR 4.50(b) Dear Mr. Peters: This letter is in response to your request with respect to the coastwise transportation of an individual. We received your request on May 15, 2008. Our ruling is set forth below. FACTS: You ask whether a certain individual may be transported on the non-coastwise qualified M/V HANSA FLENSBURG (the "vessel"), from Oakland, California to Tauranga, New Zealand, with temporary stops in between in Seattle, Washington, New Westminster, Canada, and Long Beach, California. It is possible that the subject individual might temporarily go ashore during the temporary stops. You state that the individual will be on board to “repair and overhaul… two auxiliary engines during the voyage,” which consists of “dissembling… the cylinder covers, conn rods, and cylinder liners, and replacing same with spares.” ISSUE: Whether the subject individual is a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 CFR 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 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that: 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 is wholly owned by citizens of the United States for purposes of engaging in the coastwise traffic; and 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. Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed. Section 4.50(b), CBP Regulations (19 CFR 4.50(b)) provides as follows: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business. Section 4.80a(b)(3), CBP Regulations (19 CFR 4.80a(b)(3)) provides as follows: If the passenger is on a voyage to one or more coastwise ports and a distant foreign port or ports (whether or not the voyage includes a nearby foreign port or ports) and the passenger disembarks at a coastwise port, there is no violation of the coastwise law provided the passenger has proceeded with the vessel to a distant foreign port. As noted above, the individual will be embarking at a coastwise point (Oakland, California), staying on board (with possible temporary shore leave or disembarkation) at another coastwise point (Seattle, Washington), then staying on board during a stop at a nearby foreign port (New Westminster, Canada), then staying on board (with possible temporary shore leave or disembarkation) during a stop at another coastwise point (Long Beach, California) before proceeding with the vessel to a distant foreign port (Tauranga, New Zealand). Pursuant to section 4.80a(b)(3), the subject individual may disembark at either Seattle or Long Beach without violation of section 55103, provided that the individual proceeds with the vessel to Tauranga. Thus, it is immaterial whether or not the individual is considered a passenger pursuant to section 4.50(b) in this case. However, to the extent that the individual would be engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, whether directly or via a nearby foreign port, that would be "directly and substantially" related to the operation or business of the vessel itself, as would be the case under the facts herein submitted, such individual would not be considered to be a passenger (see HQ 116721, supra; and CBP Ruling HQ 116659 (May 19, 2006), referencing the "direct and substantial" test). We find that the proposed activity in this case is directly and substantially connected with the operation and business of the vessel. Therefore, we determine that the subject individual is not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b). Based on the foregoing, the coastwise transportation of the subject individual is not in violation of 46 U.S.C. § 55103. HOLDING: The coastwise movement of the subject individual as described above is not a violation of 46 U.S.C. § 55103 pursuant to 19 CFR 4.80a(b)(3). The subject individual is not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 CFR 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