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

HQ H044437 November 21, 2008 VES-3-02-OT:RR:BSTC:CCI H044437 LLB CATEGORY: Carriers Mr. David Kramer Seaspan Ship Management 2600-200 Granville Street Vancouver, British Columbia Canada V6C 164 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Kramer: This letter is in response to your correspondence dated November 14, 2008, in which you request "permission" for the subject individuals mentioned therein to transit aboard the M/V LAHORE EXPRESS and the M/V DUBAI EXPRESS. We are construing your correspondence as a request for a ruling to determine whether the coastwise laws, specifically 46 U.S.C. § 55103, and the regulations promulgated under that statute, 19 C.F.R. § 4.50(b), apply to the factual scenario you present. Our decision follows. FACTS The first voyage in question involves the transportation of the subject individuals, vessel superintendents, aboard the non-coastwise-qualified M/V LAHORE EXPRESS (the “vessel”) from Newark, New Jersey to Charleston, South Carolina. The individuals will embark on November 22, 2008 and will be conducting several inspections, as described below. The vessel superintendents will perform the following: inspections of running machinery; navigation and communications equipment; compliance with management procedures and standards and U.S. and international regulations; lifesaving appliances and firefighting equipment; and competence of staff onboard. The inspections are expected to be completed on or about November 28, 2008, at which time the subject individuals will disembark in Charleston. The second voyage in question involves the transportation of the foregoing vessel superintendent aboard the non-coastwise-qualified M/V DUBAI EXPRESS (the “vessel”) from Newark, New Jersey to Charleston, South Carolina. The individual will embark in Newark on November 29, 2008 and will be conducting the same inspections conducted for the M/V LAHORE EXPRESS as described above. The inspections will be completed on or about December 4, 2008, at which time the subject individual will disembark in Charleston. ISSUE Whether the individuals described in the FACTS section 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 the subject individuals will be transported on the subject vessels for the purpose of conducting inspections of the vessel, as described 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 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); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. In the present case, to the extent the individuals are engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, that is “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 such 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 such 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