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

HQ H047935 December 30, 2008 VES-3-02-OT:RR:BSTC:CCI H047935 JLB CATEGORY: Carriers Mr. Kimo Pierson Transmarine Navigation Corporation 677 Ala Moana Blvd., Suite 800 Honolulu, Hawaii 96813 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Pierson: This letter is in response to your correspondence dated December 29, 2008, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the TORM ROSETTA 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 TORM ROSETTA (“the vessel”). The individuals are the wife and son of the vessel’s captain. They embarked on December 13, 2008 at Honolulu, Hawaii with the intention of disembarking in Singapore. However, the vessel was diverted to Long Beach, California and due to school commitments, the captain’s wife and son wish to disembark at the port of Long Beach on or about January 1, 2009. 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 p. 50. It is CBP’s longstanding position that the spouse and children of officers of a vessel are not passengers for purposes of the passenger coastwise statute. See General Letter No. 117 (May 20, 1916) from the former Bureau of Navigation. A captain qualifies as an "officer of the vessel," therefore, the spouse and children of the vessel’s captain may be aboard a non-coastwise-qualified vessel during a coastwise voyage and are not "passengers" 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 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 individuals is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch