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

HQ H107455 July 20, 2010 VES-3-02-OT:RR:BSTC:CCI H107455 LLB CATEGORY: Carriers Mr. Chris Martin Holland America Line 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 of May 26, 2010, in which you inquire about the coastwise transportation of the individual mentioned therein aboard the M/S AMSTERDAM. Our decision follows. FACTS The voyage in question involves the coastwise transportation of the subject individual aboard the non-coastwise-qualified M/S AMSTERDAM (the “vessel”). The subject individual will embark in Seattle, Washington on May 31, 2010, and disembark the vessel in Skagway, Alaska on June 4, 2010. The subject individual is the Director of the Holland America Line Mariner Loyalty Program (the Program) for Holland America Line and will be transported aboard the vessel for the purpose of “address[ing] the operational needs of passengers and ship staff in regards to this important program and its procedures.” In addition, the subject individual will be working with the vessel’s staff to plan and prepare “Mariner” voyages for 2010 and 2011. The Program is similar to an airline mileage/trip award incentive program. ISSUE Whether the individual described in the FACTS section above is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 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 which provides: (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- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) 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. The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business. 19 C.F.R. § 4.50(b). 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 C.F.R. § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. In the present case, we conclude that these individual is a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). In HQ H067900 (July 23, 2009), CBP held that corporate trainers which would train management and crew on the Holland America Line Mariner Loyalty Program were passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b) because although transporting the corporate trainers aboard the vessel would foster the business interests of the cruise line, it would not connect the corporate trainers directly and substantially with the business of the vessel itself.  Similarly, you propose transporting the Director of the same program, to discuss passenger and staff concerns with the Program as well as plan future award incentives under the Program. According to Holland America Line’s website, the Program is not limited to voyages aboard the M/S AMSTERDAM, but is available to those passengers that travel on any vessel in Holland America Line’s fleet. Accordingly, although transporting the Director of the Program aboard the vessel would foster the business interests of the cruise line, it does not connect such individual directly and substantially with the business of the vessel itself. To the extent that the subject individual would not 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, such individual would be considered a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). HOLDING The subject individual described above is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of the individual would be in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch