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

HQ H113696 July 9, 2010 VES-3-02-OT:RR:BSTC:CCI H113696 CK CATEGORY: Carriers Mr. Sal di Francia ATT Infrared Services 3540 W. Sahara Avenue Suite 121 Las Vegas, NV 89102 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. di Francia: This letter is in response to your correspondence dated July 3, 2010, in which you request a ruling on whether your coastwise transportation aboard the M/V NEW DELHI EXPRESS 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 M/V NEW DELHI EXPRESS ("the vessel"). You would embark on July 17, 2010 at the port of Newark, New Jersey, travel with the vessel to Norfolk, Virginia and Savannah, Georgia, before disembarking at the port of Charleston, South Carolina on July 23, 2010. You will travel aboard the vessel to perform a machinery survey of the ship’s propulsion systems for mechanical and electrical testing. You will measure machinery vibration on all bearings for rotating equipment and scan electrical systems such as switchboards and motor measuring temperature for overloaded circuits. ISSUE: Whether 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 Decision 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 Decision 116721, dated September 25, 2006. In the present case, you will travel aboard the vessel to perform a machinery survey on the ship’s propulsion system. 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