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

HQ H030653 June 16, 2008 VES-3-02-OT:RR:BSTC:CCI H030653 CK CATEGORY: Carriers Mr. Ben Sotto Norton Lilly International 5080 McLester Street Maersk Control Building, 3rd Floor Elizabeth, NJ 07207 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Sotto: This letter is in response to correspondence dated June 12, 2008, from J.P. Samartzis Maritime Enterprises Co. S.A., in which a request for a ruling was made on whether the coastwise transportation of the individuals mentioned therein aboard the MV HANJIN KAOHSIUNG constitutes a violation of 46 U.S.C. § 55103. Our ruling on this request follows. FACTS: The voyage in question involves the transportation of three individuals aboard the non-coastwise-qualified MV HANJIN KAOHSIUNG ("the vessel"). The three individuals would embark on June 17, 2008 at New York, NY and two will disembark at the port of Charleston, SC on June 20, 2008. The third individual will continue on with vessel to Europe. The individuals will travel aboard the vessel to inspect the vessel’s steel plate conditions prior to the vessel’s scheduled dry-docking later this summer. ISSUE: Whether the individuals described above would be "passengers" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b)? LAW AND ANALYSIS: The coastwise passenger statute, former 46 U.S.C. App. § 289 recodified as 46 U.S.C. § 55103, pursuant to P.L. 109-304 (October 6, 2006), states that no foreign vessel shall transport passengers "between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port," under a penalty of $300 for each passenger so transported and landed. See also 19 C.F.R. § 4.80(b)(2). 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. Under 46 U.S.C. § 55103, a "passenger" is any person carried aboard a vessel "who is not connected with the operation of the vessel, her navigation, ownership, or business." See also 19 C.F.R. § 4.50(b). In this regard, U.S. Customs and Border Protection ("CBP") provides a strict interpretation of "passenger" defining the term as persons transported on a vessel unless they are "directly and substantially" connected with the operation, navigation, ownership or business of that vessel itself. See Customs Bulletin of June 5, 2002, Vol. 36, No. 23, at pp. 50. Pursuant to Headquarters Decision 101699, dated November 5, 1975, it is well settled that "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 section 289 [now section 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." See also Headquarters Decision 116721, dated September 25, 2006. In the present case, the three individuals will travel aboard the vessel to inspect the vessel’s steel plate conditions prior to the vessel’s scheduled dry-docking later this summer. Under the facts presented, the individuals would be "directly and substantially" related to the operation and business of the vessel during the voyage and would not be considered "passengers" under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individuals is not in violation of 46 U.S.C. §55103. We note that the third individual, who is not disembarking in the United States, is not within the purview of this ruling as that individual is not engaged in a voyage "between ports or places in the United States” as per 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