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

HQ H060511 May 13, 2009 VES-3-02-RR:BSTC:CCI H060511 CK CATEGORY: Carriers Mr. Stuart M. Novak Vice President, Marine Operations Holland America Line Inc. 300 Elliott Avenue West Seattle, WA 98119 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Novak: This is in response to your correspondence of May 12, 2009, in which you inquire about the coastwise transportation of the individuals mentioned therein aboard the M.S. ROTTERDAM. Our decision follows. FACTS: The voyage in question involves the transportation of four individuals aboard the non-coastwise-qualified M.S. ROTTERDAM (the “vessel”) from Ft. Lauderdale, Florida to New York, New York. These individuals are expected to embark on May 13, 2009 and disembark in New York on May 16, 2009. The four individuals, employees of Grand Bahamas Shipyard, will ride onboard the vessel to inspect the vessel and gather dimensional and geographical information so that a series of coordination drawings may be prepared. These drawings will be used to support and plan the drydocking of the vessel that is scheduled to occur in November 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 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 individuals, employees of Grand Bahamas Shipyard, will ride onboard the vessel to inspect the vessel and gather dimensional and geographical information in order to prepare a series of coordination drawings. These drawings will be used to support and plan the drydocking of the vessel that is scheduled to occur in November 2009. Under the facts presented, 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