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HQ H003597




November 29, 2006

VES-3-02-RR:BSTC:CCI H003597 CK

CATEGORY: CARRIER

John Livingston
Norton Lilly International
952 Houston Northcutt Blvd.
Suite 100
Mt. Pleasant, SC 29464

Dear Mr. Livingston:

In your letter transmitted by facsimile on November 21, 2006, you requested as an agent for Maersk Lines, that a manager be allowed to travel aboard the foreign-flagged vessel M/V MAERSK GAIRLOCH from Charleston, S.C. to Newark, N.J. You supplemented your request with an email with further details and noted that the manager in question requests permission to also be a guest on the M/V DIRCH MAERSK, also a foreign-flagged vessel, on its coastwise voyage from Charleston to Newark. Our ruling on your request follows.

FACTS:

Mr. Clifford Proctor, in the role of technical manager for both the M/V MAERSK GAIRLOCH and the M/V DIRCH MAERSK visits each vessel under his company’s (A.P. Moller Maersk) management every year to perform a management meeting and inspection. It also serves as an opportunity to meet the ships staff and to introduce himself. As noted above, the management meeting and inspection will take place while the aforementioned vessels are in transit between Charleston, S.C. and Newark, N.J.

The management meeting is an annual event when Mr. Proctor or one of his colleague's will attend the vessel to discuss the following subjects with the Captain, Chief Engineer, Chief officer and 2nd Engineer: A) Vessel budget
B) Vessel stores and spare gear issues.
C) Technical issues onboard and
D) Vessel specified issues, (details not yet advised)

The inspection referenced above is of the general condition of the vessel and will include the engine room, bridge, accommodation area, cargo deck area and where possible ballast tanks.

ISSUE:

Whether the technical group manager described above would be a passenger under the coastwise passenger statute, 46 U.S.C. §55103 (formerly 46 U.S.C. App. 289).

LAW AND ANALYSIS:

The coastwise passenger statute, the former 46 U.S.C. App. 289 recodified at 46 U.S.C. §55103, pursuant to P.L. 109-304 (October 6, 2006) 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). Under section 55103 (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 personsare not ‘passengers’ under section 289 [now section 55103] 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 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 conducting a management meeting and inspecting the general condition of the vessel including the engine room.

HOLDING:

Under the facts presented, since the technical group manager would be transported coastwise aboard first, the M/V MAERSK GAIRLOCH and second, the M/V DIRCH MAERSK to conduct a management meeting and to inspect the vessel’s general condition, as detailed above, 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. §55103.

Sincerely,

Glen E. Vereb

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