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

HQ H018650 October 18, 2007 VES-3-02-OT:RR:BSTC:CCI H018650 JLB CATEGORY: Carriers Mr. Rocky Daily Vessel Manager Moran-Gulf Shipping Agencies 333 N. Sam Houston Pkwy. East Suite 950 Houston, Texas 77060 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Daily: This letter is in response to your correspondence dated October 16, 2007, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard several vessels constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The subject individuals will be transported aboard four non-coastwise-qualified vessels in order to carry out safety audits and vessel inspections. The first voyage will be aboard the M/T NOBLE SPIRIT. The individuals embarked on October 18, 2007 at Houston, Texas and will disembark at the port of St. Rose, Louisiana on or about October 20, 2007. The second voyage will be aboard the M/T LAS CUEVAS with the individuals embarking and disembarking on October 22, 2007. They will embark at Houston, Texas and will disembark at the port of Corpus Christi, Texas. The third voyage in question involves the subject individuals traveling aboard the M/T SAN FERNAND. They will embark on October 26, 2007 at St. Rose, Louisiana and will disembark at the port of Houston, Texas on or about October 27, 2007. The final voyage will be aboard the M/T AMBASSADOR NORRIS. The individuals will embark on October 29, 2007 at the S.W. Pass pilot station and will disembark at St. Rose, Louisiana on or about October 30, 2007. The individuals will perform safety audits by inspecting navigational equipment and vessel personnel. The vessel inspections are being conducted to address safety issues not carried out during port boardings. ISSUE Whether the individuals described above would be “passengers” 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 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, the individuals would be traveling aboard the non-coastwise-qualified vessels to conduct a safety audit and vessel inspection. Under the facts presented, the individuals would be “directly and substantially” related to the navigation, operation, and business of the vessel during the voyage and would not be considered “passengers” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individuals is not in violation of 46 U.S.C. § 55103. HOLDING The subject individuals 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 is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch