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

HQ H062201 June 2, 2009 VES-3-02-OT:RR:BSTC:CCI H062201 LLB CATEGORY: Carriers Mr. Marc G. Schmidt E.R. Schiffart GMBH & CIE Hohe Bleichen 12 D-20354 Hamburg, Germany RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Schmidt: This letter is in response to your correspondence of May 28, 2009, in which you inquire about your coastwise transportation aboard the MAERSK DENVER and the OOCL MALAYSIA. Our decision follows. FACTS The voyages in question involve the transportation of the subject individual aboard the non-coastwise-qualified MAERSK DENVER and the OOCL MALAYSIA (the “vessels”). For the first voyage, the subject individual will embark the MAERSK DENVER in Oakland, California on June 19, 2009 and disembark that vessel in Long Beach, California on June 20, 2009. For the second voyage, the subject individual will embark the OOCL MALAYSIA in Savannah, Georgia on June 25, 2009 and disembark that vessel in Norfolk, Virginia on June 28, 2009. On both voyages, the individual will perform the following audits and inspections: ISM (International Safety Management); Quality System; Environmental Management System, and International Ship and Port Facility Security Code. ISSUE Whether the individual described in the FACTS section above is a “passenger” 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)(2009). 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 that you will be transported on the subject vessels for the purpose of performing various vessel audits and inspections as described in the FACTS section 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 or navigation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. In the present case, to the extent you 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, you would not be considered a passenger. The subject individual is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise travel, as described above, 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