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

HQ H056993 April 8, 2009 VES-3-02-OT:RR:BSTC:CCI H056993 CK CATEGORY: Carriers Mr. Jack Engle Maersk Line, Ltd. One Commercial Place, 20th Floor Norfolk, VA 23510 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Engle: This is in response to your correspondence dated April 8, 2009, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the MAERSK WISCONSIN 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, an employee of SpecTec, USA, aboard the non-coastwise-qualified MAERSK KENTUCKY (“the vessel”). This individual will embark on April 17, 2009 at Port Elizabeth, New Jersey and disembark in Houston, Texas on or about April 23, 2009. This individual will travel aboard the vessel to provide technical expertise and training to the crew on the newly installed machinery history database and peripherals associated with this Maersk Line, Limited-provided software, and will ensure the ship can replicate through the new LAN to shoreside management and support staff in the course of the business of ship management and operations. 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. 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, this individual will travel aboard the vessel to provide technical expertise and training to the crew on the newly installed machinery history database and peripherals associated with this Maersk Line, Limited-provided software, and will ensure the ship can replicate through the new LAN to shoreside management and support staff in the course of the business of ship management and operations. Under the facts presented, this individual 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, the coastwise transportation of the subject individual is not 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, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch