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

HQ H067689 July 8, 2009 VES-3-02-OT:RR:BSTC:CCI H067689 JLB CATEGORY: Carriers Mr. Chris Martin Manager, Port Operations Holland America Line, Inc. 300 Elliott Avenue West Seattle, Washington 98119 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Martin: This letter is in response to your correspondence dated July 6, 2009, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the M/S RYNDAM, STATENDAM, VOLENDAM, and MAASDAM constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/S RYNDAM, STATENDAM, VOLENDAM, and MAASDAM (“the vessels”). The individual embarked the M/S RYNDAM on July 5, 2009 at Ketchikan, Alaska and will disembark at the port of Sitka, Alaska on July 8, 2009. Then the individual will embark the STATENDAM on July 8, 2009 at Juneau, Alaska and disembark at Seward, Alaska on July 12, 2009. Next, he will embark the VOLENDAM on July 13, 2009 at Ketchikan, Alaska and will disembark at Vancouver, British Columbia on July 15, 2009. Finally, the individual will embark the MAASDAM on July 17, 2009 at Quebec, Canada and will disembark July 21, 2009 at Charlottetown, Prince Edward Island, Canada. During all the voyages, the individual, a technician, will travel aboard to repair any problems with the watertight door systems. ISSUES (1) Whether the use of the non-coastwise-qualified vessels in the voyages described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103? (2) If so, 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. In the present case, the coastwise passenger statute is inapplicable to the subject individual’s last two voyages. In Headquarters Ruling Letter H016892, dated September 12, 2007, U.S. Customs and Border Protection held that individuals embarking at a U.S. port and disembarking at a foreign port were not in violation of the coastwise laws since their transportation does not involve disembarkation at a coastwise port. Based on the facts presented, during the third voyage, the subject individual will embark at Ketchikan, Alaska, a U.S. port, and will be disembarking at the port of Vancouver, British Columbia, a foreign port. Consequently, the individual will not be in violation of the coastwise statutes insofar as his transportation does not involve disembarkation at a coastwise port. During the fourth voyage, the individual will be embarking in Quebec, a foreign port and disembarking in a foreign port, Charlottetown, Prince Edward Island. Thus, the individual is not in violation of the coastwise statutes since his transportation does not involve embarkation or disembarkation at a coastwise port. 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, 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. In the present case, the individual would be traveling aboard the non-coastwise-qualified vessels to repair any problems with the watertight door systems. Under the facts presented, the individual would be “directly and substantially” related to the operation and business of the vessels 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. HOLDINGS The use of the non-coastwise-qualified vessels in the last two voyages described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. As to the first two voyages, 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 an individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch