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

HQ H038820 September 19, 2008 VES-3-02:RR:BSTC:CCI H038820 ALS CATEGORY: Carriers Mr. Ron Hanson Western Overseas Corporation 7018 South 220th Street, Building 5 Kent, Washington 98032 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR 4.50(b) Dear Mr. Hanson: This letter is in response to your request with respect to the coastwise transportation of three individuals. We received your request on September 18, 2008. Our ruling is set forth below. FACTS: You ask whether three individuals may be transported on the non-coastwise qualified M/V HORIZON FALCON (the "vessel"), from Tacoma, Washington to Oakland, California. The individuals will embark in Tacoma on September 20, 2008, and will disembark in Oakland on September 22, 2008. The individuals will be on board to attend a “funeral at sea.” ISSUE: Whether the subject individuals are "passengers" within the meaning of 46 U.S.C. § 55103 and 19 CFR 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 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that: 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 is wholly owned by citizens of the United States for purposes of engaging in the coastwise traffic; and 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. Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed. Section 4.50(b), CBP Regulations (19 CFR 4.50(b)) provides as follows: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business. You state that the subject individuals will be on board to attend a “funeral at sea.” 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 46 U.S.C. § 55103 and 19 CFR 4.50(b), 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 CBP Ruling HQ 101699, (November 5, 1975); see also CBP Ruling HQ 116721 (September 25, 2006), quoting CBP Ruling HQ 101699. However, in the present case, and under the facts presented, the subject individuals would not be engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, that would be "directly and substantially" related to the navigation, operation, or business of the vessel itself. Therefore, such individuals would be considered to be passengers (see HQ 116721, supra; and CBP Ruling HQ 116659 (May 19, 2006), referencing the "direct and substantial" test). See also CBP Ruling HQ 226846 (April 24, 1996) (funeral guests considered to be passengers for purposes of 46 U.S.C. § 55103). We find that the proposed activity in this case is not directly and substantially connected with the navigation, operation, or business of the vessel. Therefore, we determine that the subject individuals are "passengers" within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b). Accordingly, the coastwise transportation of the subject individuals is in violation of 46 U.S.C. § 55103. HOLDING: The subject individuals are "passengers" within the meaning of 46 U.S.C. § 55103 and 19 CFR 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