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

HQ H095840 March 3, 2010 VES-3-02:OT:RR:BSTC:CCI H095840 ALS CATEGORY: Carriers Mr. Marc G. Schmidt Quality Manager E.R. Schiffahrt GmbH & CIE. KG c/o Inchcape Shipping Services 100 West Broadway, Suite 330 Long Beach, California 90802 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR 4.50(b) Dear Mr. Schmidt: This letter is in response to your request of February 19, 2010, with respect to your coastwise transportation. Our ruling is set forth below. FACTS: You ask whether you may be transported on the non-coastwise qualified M/V APL CANADA, APL DENMARK, and MAERSK DENVER ("vessels"), from Oakland, California to Los Angeles, California, from Los Angeles, California to Seattle, Washington, and from Miami, Florida to Savannah, Georgia. The individual will embark on March 9, 2010 in Oakland and will disembark in Los Angeles on March 11, 2010, will embark in Los Angeles on March 14, 2010 and will disembark in Seattle on March 18, 2010, and will embark in Miami on March 19, 2010 and will disembark in Savannah on March 20, 2010. The individual will be onboard to conduct audits in accordance with “the International Safety Management Code, the ISO9001:2008 Quality System, and ISO14001:2004 Environmental Management System,” as well as the “International Ship and Port Facility Security Code.” 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: 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. 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 individual will be onboard to conduct audits in accordance with “the International Safety Management Code, the ISO9001:2008 Quality System, and ISO14001:2004 Environmental Management System,” as well as the “International Ship and Port Facility Security 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 or navigation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. CBP Ruling HQ 101699 (November 5, 1975); see also CBP Ruling HQ 116721 (September 25, 2006). The Newark to Norfolk voyage qualifies as a coastwise voyage because the vessel will travel between two ports within the United States. Thus, to the extent that the individual 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 of the vessel itself, as would be the case under the facts herein submitted, you would not be considered to be a passenger (see HQ 116721, supra; and CBP Ruling HQ 116659 (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 is directly and substantially connected with the operation and business of the vessel. Therefore, we determine that the 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