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

HQ H053639 March 9, 2009 VES-3-02-OT:RR:BSTC:CCI H053639 GG CATEGORY: Carriers Mr. Martin Meissner Maritime GmbH An der Kaje 1, 26931 P.O. Box 1163 26925 Elsfleth GERMANY RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR § 4.50(b) Dear Mr. Meissner: This is in response to your correspondence of March 5, 2009, in which you inquire about the coastwise transportation of an individual. Our ruling is set forth below. FACTS The voyage in question involves the transportation of the subject individual, a technical superintendent, aboard two non-coastwise-qualified vessels from Long Beach, California, to Oakland, California. The individual is expected to embark the COSCO PANAMA (the “vessel”) on March 16, 2009 in Long Beach, and disembark in Oakland on March 18, 2009. The individual is also expected to embark the COSCO BRISBANE on March 22, 2009 in Long Beach, and disembark in Oakland on March 25, 2009. The stated purpose for the voyages is “to carry out technical inspection of both vessels,” which consists of checking the overall technical condition of the vessels. Specifically, the individual will inspect the machinery, deck, engine, tanks, and boiler system of each vessel while the vessels are underway. ISSUE Whether the subject individual described above 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: (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 the coastwise trade; and (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. Section 4.50(b), U.S. 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. In the present case, the subject individual will be transported on the vessels for the purpose of conducting technical inspections as described above while the vessels are underway. 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. See CBP Ruling HQ 101699 (November 5, 1975); see also HQ 116721 (September 25, 2006), quoting HQ 101699. Thus, in the present case, to the extent that the individual would be engaged in any shipboard activities while traveling on the foreign vessels 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 see HQ 116659 (May 19, 2006), referencing the “direct and substantial” test). See also, e.g., Customs telex 104712 (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 in this case is directly and substantially connected with the operation and business of the vessels. 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. HOLDING The subject individual described above 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. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch