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

HQ H059856 May 8, 2009 VES-3-02-OT:RR:BSTC:CCI H059856 CK CATEGORY: Carriers Mr. Raj Dewan Standards & Procedures, Manager Seaspan Ship Management Ltd. 2600-200 Granville Street Vancouver, V6C 1S4, Canada RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Dewan: This letter is in response to your correspondence dated May 6, 2009, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the M.V. RIO DE JANIERO EXPRESS constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS: The voyage in question involves the transportation one individual aboard the non-coastwise-qualified M.V. RIO DE JANIERO EXPRESS ("the vessel"). This individual will embark on or about May 11, 2009 in Houston, Texas and will disembark in New Orleans, Louisiana on or about May 15, 2009. This individual will travel aboard the vessel to carry out a routine inspection, which includes: inspecting the condition of all running machinery and their efficiency; an inspection of the navigation and communication equipment; inspecting the vessel’s compliance with management procedures and standards; an inspection of the vessel’s safety features including lifesaving and firefighter equipment; an inspection of the crew; and an inspection of the vessel’s compliance with U.S. port regulations as well as international regulations for the vessel’s other ports of call. ISSUE: Whether the individual described above would be a "passenger" 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 Decision 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 Decision 116721, dated September 25, 2006. In the present case, the individual will travel aboard the vessel to carry out a routine inspection, detailed in the FACTS portion of this ruling. Under the facts presented, the individual would be "directly and substantially" related to the operation and business of the vessel during the voyage and would not be considered a "passenger" under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individual is not in violation of 46 U.S.C. § 55103. HOLDING: The subject individual is not a "passenger" 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