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

HQ H037921 September 12, 2008 VES-3-02-OT:RR:BSTC:CCI H037921 JLB CATEGORY: Carriers Mr. Leon Sutcliffe Director, Port Operations Carnival Cruise Lines Carnival Place 3655 NW 87 Avenue Miami, Florida 33178-2428 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Sutcliffe: This letter is in response to your correspondence dated September 10, 2008, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the M/S CARNIVAL FASCINATION 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/S CARNIVAL FASCINATION (“the vessel”). The five individuals will embark on September 19, 2008 at Miami, Florida. All of the individuals will disembark in Jacksonville, Florida. The spouse of the captain will disembark on October 13, 2008 while the sibling of the production entertainer will disembark on September 25, 2008. The spouse of the hotel director and the mother and father of the audio visual manager will disembark September 20, 2008. 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. It is CBP’s longstanding position that the spouse and children of officers of a vessel are not passengers since they are connected to the ownership and business of the vessel. See U.S. Customs Service General Letter No. 117 (May 20, 1916); Customs Bulletin of June 5, 2002, Vol. 36, No. 23, at pp. 50. A captain qualifies as an "officer of the vessel," therefore, the spouse of the vessel’s captain may be aboard a non-coastwise-qualified vessel during a coastwise voyage and is not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). See Headquarters Ruling Letter H035755, dated August 15, 2008; Headquarters Ruling Letter H018118, dated October 10, 2007. Consequently, the coastwise transportation of the subject individual is not in violation of 46 U.S.C. § 55103. A hotel director, however, would not be considered to be an officer of the vessel, thus, the spouse of the hotel director would be considered a “passenger” for the purposes of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Additionally, as stated above, CBP’s position only extends to the spouse and children of the officers of the vessel and of the company that owns the vessel, as well as immediate family members of the owner. Accordingly, the sibling of the production entertainer and the parents of the audio visual manager would be considered “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of these four individuals would be in violation of 46 U.S.C. § 55103. HOLDING The spouse of the captain of the vessel 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 such an individual is not in violation of 46 U.S.C. § 55103. The spouse of the hotel director, the sibling of the production entertainer, and the parents of the audio visual manager are “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 in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch