Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); HQ H018859 (Nov. 13, 2007).

HQ H119740 August 24, 2010 VES-3-OT:RR:BSTC:CCI H119740 LLB CATEGORY: Carriers Mr. Paul Sogotis Pacific Coast Maritime Agencies, Inc. 340 Golden Shore, Suite 260 Long Beach, California 90802 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); HQ H018859 (Nov. 13, 2007). Dear Mr. Sogotis: This is in response to your correspondence of August 18, and 23, 2010, in which you inquire about the coastwise transportation of marine mammal monitors aboard non-coastwise qualified vessels. Our decision follows. FACTS: The voyage in question involves the transportation of the subject individuals currently aboard the non-coastwise-qualified CS GLOBAL SENTINEL (“the vessel”). The individuals embarked in Long Beach, California and will disembark in Port Hueneme, California on August 29, 2010. The vessel will be laying cable during the voyage. The vessel carrier has hired the subject individuals to monitor when marine mammals approach the vessel and warn the pilot of such so that the pilot may stop the vessel or change the vessel’s course of navigation. ISSUE: Whether the individuals described in the FACTS section above are “passengers” 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. Section 4.50 (b) of the Customs and Border Protection (“CBP”) Regulations 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. 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 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 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. Furthermore, the shipboard activities engaged in by such aforementioned 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.  In HQ H018859 (Nov. 13, 2007), CBP determined shipboard ecologists that were relaying the locations of whales to the vessels’ bridge, while also conducting a study on the whales, were not passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). CBP reasoned that insofar as the ecologists were communicating to the pilot when a whale strike was imminent thereby allowing the pilot to decide on an alteration of course or speed (relative to other factors), such activity directly and substantially connected the individuals to the navigation of the vessel. Similarly, in the present case, you state that the subject individuals will monitor when marine mammals approach the vessel and warn the pilot of such so that the pilot may stop the vessel or change the vessel’s course of navigation. We find that the proposed activities described in your request would be directly and substantially connected with the navigation 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 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of the individuals in question would not be in violation of 46 U.S.C. § 55103. HOLDING: The individuals described in the FACTS section above are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individuals would not be in violation of 46 U.S.C. § 55103. Sincerely, George Frederick McCray Supervisory Attorney-Advisor/Chief Cargo Security, Carriers and Immigration Branch Office of International Trade, Regulations & Rulings