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

HQ H042437 October 31, 2008 VES-3-02-OT:RR:BSTC:CCI H042437 LLB CATEGORY: Carriers Mr. Levar O. Kennings Norwegian Cruise Line 7665 Corporate Drive Miami, Florida 33126 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Kennings: This letter is in response to your correspondence dated October 22, 2008, in which you inquire about the coastwise transportation of the 51 individuals mentioned therein aboard the M/S NORWEGIAN SPIRIT. Our decision follows. FACTS The voyages in question involve the transportation of the 51 subject individuals aboard the non-coastwise-qualified M/S NORWEGIAN SPIRIT (the “vessel”). Thirty-nine of the individuals will embark in New Orleans, Louisiana on October 31, 2008, disembark in Mobile, Alabama on or about November 21, 2008 and will prepare the vessel for drydocking. Specifically, 37 of the 39 of the individuals, including welders, painters, insulators, carpenters, electricians, and engineers, will demolish passenger cabins, the video arcade, flooring, and seating, and prepare the engine areas for installation of a new main engine. The remaining two of the 39 individuals will audit the contractor's work to the vessel's engine and hotel spaces and conduct quality assurance audits of the foregoing work. Nine individuals, eight of which will be upgrading software, and one of which will be repairing the vessel's video arcade, will embark in Mobile between November 9, 2008 and November 21, 2008, and disembark in New Orleans on November 23, 2008. Three of the individuals, "Logistics Supervisors", will embark in New Orleans on October 31, 2008, transit to Mobile, Alabama, return with the vessel to New Orleans and disembark the vessel on November 23, 2008. The Logistics Supervisors are responsible for supervising the security and storage of all equipment during the drydock period as well as when the vessel is in transit ISSUE Whether the individuals described in the FACTS section above are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 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. See 33 C.F.R. § 2.22(a)(2)(2008). The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 which provides: (a) 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- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) 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. (b) Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed. The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business. 19 C.F.R. § 4.50(b). You state that 51 subject individuals will be transported on the vessel for various purposes involving preparation for drydocking, auditing the contractor's work during and after the drydocking period, upgrading software, repairing the vessel's video arcade, and securing and storing equipment during transit, as described 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 C.F.R. § 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. HQ 101699 (Nov. 5, 1975); HQ 116721 (Sept. 25, 2006) quoting HQ 101699; see H041836 (Oct. 17, 2008), H010659 (May 4, 2007), and HQ H035184 (Aug. 11, 2008) (holding that individual transported for the purposes of installing computer software/hardware and training the crew there on was not a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b); see also, HQ H018093 (Oct. 9, 2007) and H027918 (May 16, 2008) (preparing for drydock). In the present case, to the extent the 51 individuals 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 itself, as would be the case under the facts herein submitted, such individuals would not be considered passengers. We find that the 51 individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of these 51 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 individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch