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

HQ H059122 May 1, 2009 VES-3-02-OT:RR:BSTC:CCI H059122 JLB CATEGORY: Carriers Mr. Erik J. Fiske APL Maritime, Ltd. 6901 Rockledge Drive Suite 200 Bethesda, Maryland 20817 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Fiske: This letter is in response to your correspondence dated April 30, 2009, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the APL CYPRINE constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyage in question involves the transportation of eleven individuals aboard the non-coastwise-qualified APL CYPRINE (“the vessel”). The vessel is entering U.S.-flag service on May 5, 2009 at the port of Charleston, South Carolina and the new crew needs training and assistance. Therefore, seven individuals will embark on May 6, 2009 at Charleston, South Carolina and will disembark at the port of Norfolk, Virginia on May 8, 2009. One of the individuals will be “providing bridge resource management training and navigational training to the Deck Officers to assure familiarity with the ship’s bridge equipment and safe entry into the ports.” Another individual will be providing specialized training for the second officer in the vessel’s navigational equipment. The third individual, the vessel’s technical manager, will “be working with the Engineering Officers to train them in the specifics of the vessel’s equipment and to assist in resolving any mechanical issues raised by the Coast Guard during the Reflag process.” The fourth individual will be installing the vessel’s IT network. Two of the individuals, the vessel’s former Chief Engineer and the former Senior Electrician, will be providing training and familiarization of the vessel’s systems including the electrical systems to their new counterparts. The final individual embarking in Charleston and disembarking in Norfolk is “heading up the project to implement new ship security and anti-piracy measures and to train the new crew in these measures.” One of the eleven individuals will embark the vessel at Charleston, South Carolina on May 6, 2009 and will disembark at Savannah, Georgia on May 7, 2009. This individual will travel aboard the vessel to “trouble shoot and effect necessary repairs of the ship’s engine automation system.” Finally, three individuals will embark at Savannah, Georgia on May 7, 2009 and will disembark at Norfolk, Virginia on May 8, 2009. These three individuals will be “conducting hands on assessment of the vessel’s security as it pertains to Anti-Piracy, conducting Anti-Piracy and ship security training and conducting Anti-Piracy intrusion drills with the crew.” 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 pp. 50. Pursuant to Headquarters Ruling Letter 101699, dated November 5, 1975, it is well settled that "workmen, technicians, or observers transported by vessel between ports of the United States are not classified as ‘passengers’ within the meaning of section 4.50(b) and section 289 [now section 55103] 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 also Headquarters Ruling Letter 116721, dated September 25, 2006. Under the facts presented, all eleven of the individuals would be “directly and substantially” related to the operation and business of the vessel during the voyage and would not be considered “passengers” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). 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