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HQ H003146

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November 15, 2006

VES-3-02-RR:BSTC:CCI H003146 rb

CATEGORY: CARRIER

James C. Bell, Jr., Port Manager
Norton Lilly International
3800 Poplar Hill Road, Suite AA
Chesapeake, VA 23321

RE: Coastwise transportation; Technical group manager/contractor; 46 U.S.C. App. 289

Dear Mr. Bell:

In your letter transmitted by facsimile on November 9, 2006, to U.S. Customs and Border Protection (CBP) in Norfolk, VA, you requested, as agent for Maersk Lines, that a contractor (technical group manager) be allowed to travel aboard the vessel, MV SEALAND RACER, from Norfolk, on November 12, 2006, to Miami, FL, the port of disembarkation. CBP in Norfolk forwarded your request to our office for disposition, on November 13, 2006. Our ruling on your request follows.

FACTS:

A technical group manager contracted by a vessel line was to be transported aboard its foreign vessel from Norfolk, VA, on November 12, 2006, to Miami, FL, the port of disembarkation. While en route from Norfolk to Miami, the contractor was to be engaged in checking the vessel’s navigation equipment and inspecting its engine department, these being tasks which the manager could not complete for the vessel line while its vessel was at dockside in Norfolk.

ISSUE:

Whether the contractor (technical group manager) would be a passenger under the coastwise passenger statute, 46 U.S.C. App. 289.

LAW AND ANALYSIS:

The coastwise passenger statute, 46 U.S.C. App. 289, provides that no foreign vessel may transport passengers between ports or places in the United States either directly or by way of a foreign port, upon a penalty of $300 for every passenger so transported and landed (see 19 CFR 4.80(b), adjusting the penalty to $300 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990). Under section 289 (see 19 CFR 4.80a(a)(5)), a “passenger” is any person carried aboard a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business (19 CFR 4.50(b)). In this regard, as resolved in a June 5, 2002, Customs Bulletin notice (Vol. 36, No. 23, p.50), persons transported on a vessel would be passengers unless they were “directly and substantially” connected with the operation, navigation, ownership, or business of that vessel itself. In the current context, Headquarters ruling (HQ) 116752, of November 3, 2006, is instructive in explaining the operative administrative law applicable in this context, as follows:

[T]he Customs Service [now Customs and Border Protection (CBP)] has repeatedly ruled that if any persons are transported coastwise who are bona fide agents of the line or officers of companies acting as such agents and if such persons while on the voyage are concerned with observing and appraising the facilities offered, such persons... are not ‘passengers’” under section 289 and § 4.50(b) (emphasis added) (HQ 103410, of May 5, 1978 (operations manager of freight line transported coastwise aboard freight line’s vessel to observe vessel’s operational pattern thereby deemed connected with operation and business of vessel so as not to be passenger when being transported for this purpose)).

HQ 116752 (emphasis added) (executive chef of cruise line transported aboard its vessel “to monitor and access the standards of [vessel’s] culinary operation onboard” found to be connected with that vessel’s operation/business, and not considered passenger). Similarly, in the present case, the contractor (technical group manager) would be connected to the operation and/or business of the vessel itself, and would not be a passenger, when engaged during such transportation on behalf of the vessel line in checking the vessel’s navigation equipment and inspecting its engine department.

HOLDING:

Under the facts presented, since the contractor (technical group manager) would be transported coastwise aboard the vessel in this case to check/inspect the vessel’s navigation equipment and its engine department while en route, the technical group manager would thereby necessarily be connected with the operation and/or business of that vessel itself. Hence, the group manager would not be a passenger when so transported, and the transportation would not be in violation of 46 U.S.C. App. 289.

Sincerely,

/S/ Glen E. Vereb

Glen E. Vereb
Chief

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