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

HQ H119058 August 16, 2010 VES-3-02-OT:RR:BSTC:CCI H119058 CK CATEGORY: Carriers Mr. Christopher Jenkins Norton Lilly International 15201 east Freeway, Suite 209 Channelview, Texas 77530 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Jenkins: This letter is in response to your correspondence dated August 13, 2010, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the M/V NORTHERN DIVERSITY 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 M/V NORTHERN DIVERSITY (“the vessel”). The individual will embark on August 16, 2010 at Houston, Texas and will disembark at the port of New Orleans, Louisiana on or around August 18, 2010. This individual will travel aboard the vessel to perform an inspection that includes: inspecting the integrity of the hull; inspecting the shipboard machinery; inspecting Marpol, life saving and safety appliances; review the ISM implementation; meet with the crew and create a maintenance plan for the vessel; and prepare lists of spares and stores. 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. 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 onboard to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are onboard because of a necessary vessel ownership or business interest during the voyage. (See HQ 101699, of November 5, 1975; see also HQ 116721, of September 25, 2006, quoting HQ 101699)  Furthermore, the shipboard activities engaged in by such aformentioned individuals while traveling on a non-coastwise-qualified vessel between coastwise ports must be “directly and substantially” related to the operation, navigation, ownership, or business of the vessel itself in order for such individuals to not be considered as passengers under these provisions of law. (See HQ 116721, supra; and see HQ 116659, of May 19, 2006, referencing the “direct and substantial” test) In the present case, we find that the proposed activities described in your request would be directly and substantially connected with the operation of the vessel and we therefore 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 the individual in question would not be 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 individual is not in violation of 46 U.S.C. § 55103. Sincerely, George F. McCray Chief Cargo Security, Carriers and Immigration Branch