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

HQ H031595 June 25, 2008 VES-3-02-OT:RR:BSTC:CCI H031595 CK CATEGORY: Carriers David Kramer Team Leader- West Seaspan Ship Management 2600-200 Granville Street Vancouver, BC V6C 1S4 Canada RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Kramer: This letter is in response to your correspondence dated June 23, 2008, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the MV LAHORE EXPRESS and MV DUBAI EXPRESS constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyages in question involve the transportation of one individual aboard the non-coastwise-qualified MV LAHORE EXPRESS and MV DUBAI EXPRESS ("the vessels"). This individual would embark the MV LAHORE EXPRESS on or about June 30, 2008 at Newark, NJ and will disembark at the port of Charleston, SC on July 4, 2008. This individual would then fly back to Newark, NJ to embark the MV DUBAI EXPRESS on or about July 6, 2008 and disembark in the port of Charleston, SC on July 11, 2008. This individual will travel aboard the vessels to perform routine management inspection including: inspection of condition of all running machinery and their efficiency; inspection of the navigation and communication equipment; vessels’ compliance with management procedures and standards; inspection of the safety aspect of the vessels’ in terms of lifesaving appliances and firefighting equipment; inspection of competence of the staff on board; and inspection of the vessels’ compliance with U.S. port regulations as well as with international regulation concerning ports of call. ISSUE Whether the individual described above would be a "passenger" 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 subject individual will travel aboard the vessels to perform routine management inspection of the vessels. Under the facts presented, the individual would be "directly and substantially" related to the operation, navigation, and business of the vessels during the voyage and would not be considered a "passenger" under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individual is not in violation of 46 U.S.C. § 55103. 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 this individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch