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

HQ H087075 December 8, 2009 VES-3-02-OT:RR:BSTC:CCI H087075 JLB CATEGORY: Carriers Mr. Octavio Sanchez Manager Port Operations Crystal Cruises 2049 Century Park East, Suite 1400 Los Angeles, California 90067 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Sanchez: This letter is in response to your correspondence dated December 7, 2009, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the CRYSTAL SERENITY 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 CRYSTAL SERENITY (“the vessel”). The individual will embark on January 4, 2010 at Miami, Florida and will disembark at the port of Key West, Florida on January 10, 2010. The individual, the Vice President of Food and Beverage, will travel aboard the vessel to coordinate, participate and supervise a Master Sommelier training class for specialized food and beverage staff, finalize set-up of menu selections, coordinate final wine and food provisioning and purchasing, and conduct meetings with Food and Beverage senior staff to plan staffing requirements. 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 General Letter No. 117, dated May 20, 1916, officers of the company owning a vessel, and, if a corporate owner, the members of its board of directors, would, by virtue of their positions as such, be connected with the ownership or business of that vessel so as not to be passengers while being carried aboard. See Headquarters Ruling Letter H003860, dated December 12, 2006. 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 Headquarters Ruling Letter 101699, dated November 5, 1975; Headquarters Ruling Letter 116721, dated September 25, 2006. In the present case, the individual, the Vice President of Food and Beverage, would be traveling aboard the non-coastwise-qualified vessel to coordinate, participate and supervise a Master Sommelier training class for specialized food and beverage staff, finalize set-up of menu selections, coordinate final wine and food provisioning and purchasing, and conduct meetings with Food and Beverage senior staff to plan staffing requirements. Under the facts presented, the 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 an individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch