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

HQ H029169 May 23, 2008 VES-3-02-OT:RR:BSTC:CCI H029169 JLB CATEGORY: Carriers Ms. Nora Pasca Norton Lilly International 249 E. Ocean Blvd., Ste. 200 Long Beach, California 90802 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Ms. Pasca: This letter is in response to your correspondence dated May 23, 2008, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the M/V APL CHINA 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 individuals aboard the non-coastwise-qualified M/V APL CHINA (“the vessel”). The individuals will embark on May 28, 2008 at Long Beach, California and will disembark at the port of San Francisco, California on May 29, 2008. One of the individuals will travel aboard the vessel to perform International Ship Management (“ISM”) and International Ship and Port Security (“ISPS”) audits. This individual will also train the crew on navigation, vessel safety and security. The second individual is the spouse of the vessel’s chief engineer. 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. CBP has long held that immediate family members (i.e. a spouse and children) of officers of a vessel are not passengers since they are connected to the ownership and business of the vessel. See U.S. Customs Service General Letter No. 117 (May 20, 1916); Customs Bulletin of June 5, 2002, Vol. 36, No. 23, at pp. 50. In Headquarters Decision H007256, dated February 26, 2007, we held that a chief engineer qualifies as an "officer of the vessel"; therefore, his spouse may be aboard a non-coastwise qualified vessel during a coastwise voyage and is not a "passenger" under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Pursuant to Headquarters Decision 101699, dated November 5, 1975, it is also 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, the second individual would be traveling aboard the non-coastwise-qualified vessel to perform ISM and ISPS audits as well as conduct training for the crew on navigation, vessel safety and security. Under the facts presented, the individual would be “directly and substantially” related to the operation, business, and navigation 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, 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