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

HQ H036496 August 27, 2008 VES-3-02-OT:RR:BSTC:CCI H036496 JLB CATEGORY: Carriers Mr. Kenny Wong Operations Manager S5/Norton Lilly International 5080 McLester Street Maersk Control Building, 3rd Floor Elizabeth, New Jersey 07207 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Wong: This letter is in response to your correspondence dated August 25, 2008, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the M/V PRESIDENT TRUMAN constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified M/V PRESIDENT TRUMAN (“the vessel”). Five of the six individuals will embark on August 29, 2008 at New York, New York. These individuals will travel aboard the vessel in order to perform repairs and maintenance on the main and diesel engine and to perform tests on the equipment in the engine room. The sixth individual will embark at Charleston, South Carolina on September 2, 2008 to perform a safety management system audit. Three of the five individuals that embark in New York will disembark September 3, 2008 at Savannah, Georgia with the remaining three individuals disembarking September 5 at Norfolk, Virginia. 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 six individuals would be traveling aboard the non-coastwise-qualified vessel to either repair and perform maintenance on the main and diesel engine, to test the equipment onboard or to perform a safety audit. 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. 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