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

HQ H039616 September 30, 2008 VES-3-02:OT:RR:BSTC:CCI H039616 ALS CATEGORY: Carriers Mr. Waldemar Karniewicz Quality Manager E.R. Schiffahrt GmbH & CIE. Hohe Bleichen 12 D-20354 Hamburg, Germany RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR 4.50(b) Dear Mr. Karniewicz: This letter is in response to your request of September 29, 2008, with respect to the coastwise transportation of an individual. Our ruling is set forth below. FACTS: You ask whether the individual may be transported on the non-coastwise qualified MAERSK DENVER and CMA CGM YANTIAN ("vessels"), from Newark, New Jersey to Norfolk, Virginia (aboard the MAERSK DENVER), and from Seattle, Washington to Vancouver, Canada (aboard the CMA CGM YANTIAN). The individual will embark on the MAERSK DENVER on October 8, 2008 in Newark and will disembark in Norfolk on October 11, 2008. The individual will embark on the CMA CGM YANTIAN on October 13, 2008 in Seattle and will disembark in Vancouver on October 15, 2008. The individual will be on board both vessels to “carry out audits according to the International Safety Management Code, the ISO9001:2000 Quality System and ISO14001 [ISO is “International Standard Organization] Environmental Management System.” The individual will also “verify that the [vessels] meets the requirements of the International Ship and Port Facility Security Code.” ISSUE: Whether the subject individual is a "passenger" 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), Customs and Border Protection (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 individual will be on board both vessels to perform the activities described in the second paragraph in the FACTS section above. 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 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. CBP Ruling HQ 101699 (November 5, 1975); see also CBP Ruling HQ 116721 (September 25, 2006). The Newark to Norfolk voyage qualifies as a coastwise voyage because the vessel will travel between two ports within the United States. Thus, with regard to the Newark to Norfolk voyage, to the extent that the individual 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 of the vessel itself, as would be the case under the facts herein submitted, such individual would not be considered to be a passenger (see HQ 116721, supra; and CBP Ruling HQ 116659 (May 19, 2006), referencing the "direct and substantial" test). See also, e.g., Customs telex 104712, of July 21, 1980, finding that repairmen were not passengers when carried aboard a foreign vessel between U.S. ports "for [the] purpose of repairing vessel en route between such ports." We find that the proposed activity with regard to the Newark to Norfolk voyage is directly and substantially connected with the operation and business of the vessel. Therefore, we determine that the subject individual is not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b). Accordingly, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103. As for the other subject voyage, you state that the subject individual will be disembarking in Vancouver, Canada after having embarked in Seattle. As a foreign location, Vancouver is not a coastwise point. Based on a plain reading of section 55103, it is well settled that there is no coastwise violation when a passenger embarks at a coastwise point and disembarks at a foreign destination. See 19 CFR 4.80 and 4.80a; see also CBP Ruling HQ H023513 (February 21, 2008). Thus, such an itinerary does not constitute coastwise transportation. Therefore, given that the subject individual will not be transported coastwise, there is no violation of section 55103 with regard to the Seattle to Vancouver voyage. HOLDING: With regard to the Newark, New Jersey to Norfolk, Virginia voyage, the subject individual is not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b). Therefore, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103. With regard to the Seattle, Washington to Vancouver, Canada voyage, the subject individual is not transported coastwise within the meaning of 46 U.S.C. § 55103. Therefore, the transportation of such individual from Seattle, Washington to Vancouver, Canada is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch