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

HQ H054596 March 17, 2009 VES-3-02-OT:RR:BSTC:CCI H054596 LLB CATEGORY: Carriers Mr. Frank Holloway Transmarine Navigation Corporation 677 Ala Moana Boulevard, Suite 800 Honolulu, Hawaii 96813 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Holloway: This letter is in response to your March 16, 2009, correspondence in which you request "permission" for the individuals mentioned therein to be transported aboard the M/S AURORA and that any penalties associated with the transportation be waived. 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 voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified M/S AURORA ("the “vessel”). The individuals will embark in Honolulu, Hawaii on March 19, 2009 and will be performing in two cabaret shows for the passengers aboard the vessel. The individuals will disembark in San Francisco, California on March 24, 2009. 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 the subject individuals, cabaret performers, will be transported on the vessel for the purpose of entertaining the passengers aboard 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. See HQ 101699 (Nov. 5, 1975); HQ 116721 (Sept. 25, 2006) quoting HQ 101699; see also HQ H018736 (Nov. 1, 2007) (singer); HQ H107747 (Oct. 2, 2007) (pianist, juggler, and singer); HQ H017032 (Sept. 14, 2007) (comedian); HQ H023376 (May 10, 2008)(musicians); and HQ H030346 (June 20, 2008)(dancers). In the present case, to the extent the subject 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 within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, 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 would not be in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch