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

HQ H037024 September 3, 2008 VES-3-02-OT:RR:BSTC:CCI H037024 JLB CATEGORY: Carriers Mr. Yogendra Singh Seaspan Ship Management 2600 - 200 Granville St.Vancouver, BC V6C 1S4 Canada RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Singh: This letter is in response to your correspondence dated September 2, 2008, in which you request a ruling on whether your coastwise transportation aboard the SANTOS EXPRESS constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyage in question involves your transportation aboard the non-coastwise-qualified SANTOS EXPRESS (“the vessel”). You will embark on September 5, 2008 at Veracruz, Mexico and will disembark at the port of New Orleans, Louisiana on September 10, 2008. As the technical superintendent, you will travel aboard the vessel to inspect the navigation and communication equipment, the safety equipment including the lifesaving and fire fighting equipment, and the condition of all the machinery. You will also ensure that the vessel is in compliance with the management procedures and standards, as well as with U.S. port regulations, U.S. Coast Guard requirements and international regulations. Finally, you will inspect the competence of the staff onboard and supervise any repairs performed by the crew or local contractors. 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, you would be traveling aboard the non-coastwise-qualified vessel to perform an internal audit. Under the facts presented, you would be “directly and substantially” related to the operation and business of the vessel 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, your coastwise transportation is not in violation of 46 U.S.C. § 55103. HOLDING You are not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, your coastwise transportation is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch