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

HQ H082941 November 4, 2009 VES-3-02-RR:BSTC:CCI H082941 GOB CATEGORY: Carriers Gill Birchall Bibby Ship Management 105 Duke Street Liverpool, L 1 5JQ United Kingdom RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR § 4.50(b) Dear Ms. Birchall: This letter is in response to your letter of November 3, 2009 with respect to the coastwise transportation of an individual. Our ruling is set forth below. FACTS: You ask whether a marine superintendent may be transported on the non-coastwise-qualified MAERSK TANGIER and the non-coastwise-qualified MAERSK TARRAGONA (the “vessels”) for the purpose of performing an audit to verify compliance with company regulations, ISO 9001:2000 and the International Safety Management (“ISM”) code. The superintendent will embark the MAERSK TANGIER in Norfolk, Virginia on November 15, 2009 and will disembark the MAERSK TANGIER in Miami, Florida on November 18, 2009. The superintendent will then embark the MAERSK TARRAGONA in Miami on November 18, 2009 and will disembark the MAERSK TARRAGONA in Wilmington, North Carolina on November 20, 2009. ISSUE: Whether the subject individual is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 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. The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that: (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- is wholly owned by citizens of the United States for purposes of engaging in the coastwise traffic; and 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. Section 4.50(b), Customs and Border Protection (“CBP”) Regulations (19 CFR § 4.50(b)) provides as follows: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business. You state that the subject individual will be transported on the vessels for the purpose of performing an audit to verify compliance with company regulations, ISO 9001:2000 and the ISM code. 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 CFR § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation, navigation, or business of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699, of November 5, 1975; see also HQ 116721, of September 25, 2006, quoting HQ 101699. Thus, in the present case, to the extent that the individual would be engaged in any shipboard activities while traveling on the non-coastwise-qualified vessels between coastwise ports, that would be “directly and substantially” related to the operation, navigation, or business of the vessels themselves, such individual would not be considered to be a passenger (see HQ 116721, supra; and see HQ 116659, of May 19, 2006, referencing the “direct and substantial” test). See also, e.g., Customs telex 104712, of July 21, 1980, finding that repairmen were not passengers when carried aboard a foreign vessel between U.S. ports “for [the] purpose of repairing vessel en route between such ports." We find that the proposed activity in this case is directly and substantially connected with the operation and business of the vessels. Therefore, we determine that the subject individual is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). Accordingly, the coastwise transportation of such 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 CFR § 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