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

HQ H035839 August 18, 2008 VES-3-02-RR:BSTC:CCI H035839 CK CATEGORY: Carriers Mr. Randy Dedon TMC Shipping Company P.O. Box 45212 Dept. 482 Baton Rouge, LA 70895 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Ms. Dedon: This is in response to your correspondence of August 17, 2008, in which you inquire about the coastwise transportation of the eight (8) individuals mentioned therein aboard the M/V SHANGHAI VENTURE. Our decision follows. FACTS The voyage in question involves the transportation of an eight (8) man working crew aboard the non-coastwise-qualified M/V SHANGHAI VENTURE (the “vessel”) from Baton Rouge, LA to Tampa, FL. The eight (8) individuals are expected to embark in Baton Rouge, LA on August 18, 2008 and will clean and prepare the cargo holds for loading. The eight (8) individuals will disembark in Tampa, FL. on August 21, 2008. ISSUE Whether the eight (8) 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 eight (8) man working crew will be transported on the vessel for the purpose of cargo hold cleaning in order to prepare the holds for the next load. 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); HQ H021837 (January 14, 2008); HQ H027837, dated May 9, 2008; H030539, dated June 11, 2008; and HQ H035255, dated August 8, 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 eight (8) 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