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

HQ H097296 March 12, 2010 VES-3-02-OT:RR:BSTC:CCI H097296 JLB CATEGORY: Carriers Ms. Nora Pasca Norton Lilly International 249 East Ocean Blvd., Suite 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 March 11, 2010, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the M/V APL NEW YORK 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 M/V APL NEW YORK (“the vessel”). The individual will embark on March 12, 2010 at Los Angeles, California and will be disembarking at Seattle, Washington on March 14, 2010. The individual is the captain’s uncle. 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 p. 50. It is CBP’s longstanding position that the spouse and children of officers of a vessel are not passengers for purposes of the passenger coastwise statute. See General Letter No. 117 (May 20, 1916) from the former Bureau of Navigation. Since CBP’s position only extends to the spouse and children of the officers of the vessel and of the company that owns the vessel, as well as immediate family members of the owner, the captain’s uncle would be considered a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individual is in violation of 46 U.S.C. § 55103. HOLDING The subject individual is 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 in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch