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

HQ H071417 August 12, 2009 VES-3-02-OT:RR:BSTC:CCI H071417 CK CATEGORY: Carriers Mr. Waldemar Karniewicz Quality Manager Quality & Nautical Department E.R. Schiffahrt GmbH & Cie. KG Hohe Bleichen 12 D-20354 Hamburg RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Karniewicz: This letter is in response to your correspondence dated August 10, 2009, in which you request a ruling on whether your coastwise transportation aboard the APL SWEDEN constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyage in question involves your transportation aboard the non-coastwise-qualified APL SWEDEN (“the vessel”). You will embark on August 20, 2009 at Oakland, California and will disembark at the port of San Pedro, California on August 24, 2009. You will travel aboard the vessel to perform an International Ship Management (“ISM”) audit, Quality System audit, and an Environmental Management System audit. ISSUE Whether the you 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 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, you would be traveling aboard the non-coastwise-qualified vessel to perform an ISM audit, Quality System audit, and an Environmental Management System audit. Under the facts presented, you 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, your coastwise transportation is not in violation of 46 U.S.C. § 55103. HOLDING You are not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, your coastwise transportation is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch