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

HQ H072244 August 17, 2009 VES-3-02-OT:RR:BSTC:CCI H072244 JLB CATEGORY: Carriers Mr. Gill Birchall Bibby Ship Management Limited 105 Duke Street Liverpool, L1 5JQ United Kingdom RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Birchall: This letter is in response to your correspondence dated August 17, 2009, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the MAERSK TARRAGONA and the MAERSK TANGIER 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 MAERSK TARRAGONA and MAERSK TANGIER (“the vessels”). The individual will embark the MAERSK TANGIER on August 19, 2009 at Miami, Florida and will disembark at the port of Norfolk, Virginia on August 23, 2009. The individual will then embark the MAERSK TARRAGONA on August 26, 2009 at Miami, Florida and will disembark at the port of Savannah, Georgia on August 27, 2009. Bibby Ship Management Limited is in the process of taking over the technical management of the vessels and as part of the takeover process is sending the individual, one of their representatives, aboard. The individual will facilitate the introduction and installation of the Safety Management System, and the Security Plan as well as perform initial training in the systems so that the crew can easily access the pertinent parts. 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 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 install the Safety Management System and the Security Plan, as well as to perform initial training in the systems and conduct crew training. 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. 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 an individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch