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HQ H004502

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December 15, 2006

VES-3-02-RR:BSTC:CCI H004502 rb

CATEGORY: CARRIER

Ms. B. Wright, Maersk Agent
Maersk Pacific Ltd.
2500 Navy Way
Terminal Island, CA 90731-7554

RE: Coastwise transportation; passengers; Defense Department employees; repairman; 46 U.S.C. 55103 (formerly, 46 U.S.C. App. 289)

Dear Ms. Wright:

In your December 14, 2006, letter, transmitted by facsimile, you request that certain persons (5 officials from the United States Department of Defense; and a repairman) be permitted to travel aboard Maersk Line Ltd.’s vessel, S/L CHARGER, from Los Angeles to Oakland, CA, embarking on December 18, 2006. Our decision on your request follows.

FACTS:

A vessel line’s container ship is scheduled to sail from Los Angeles to Oakland, CA, embarking on December 18, 2006. Five officials of the United States Department of Defense, while en route aboard the vessel, would be engaged in conducting a survey to compile information about a typical container ship in furtherance of developing future security measures in this regard. These personnel are stated to be on official business of the United States Government and have been authorized at the vessel line’s highest level to ride aboard the ship.

In addition, it is stated that a repairman would need to travel aboard the vessel to repair the fuel oil system. To this end, it is noted that the repairman would be engaged in observing the active operation of the fuel oil system, and then undertaking to repair the system, also while the vessel is en route from Los Angeles to Oakland.

ISSUE:

Whether the subject persons (Defense Department officials; repairman) would be passengers under the coastwise passenger statute, 46 U.S.C. 55103 (formerly, 46 U.S.C. App. 289).

LAW AND ANALYSIS:

The coastwise passenger statute, 46 U.S.C. 55103 (recodified from former 46 U.S.C. App. 289; Pub. 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. 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 such 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.

Against this backdrop, with reference to the U.S. Defense Department officials who, while traveling aboard the vessel, would be engaged in performing a survey to compile information about a typical container ship in furtherance of developing future security measures in this regard, such officials would clearly be connected with the operation and/or business of the vessel itself, and would thus not be considered to be passengers under these circumstances. Compare, e.g., Headquarters ruling (HQ) 114115, dated October 7, 1997 (U.S. Government personnel from Departments of State and Transportation, among others, not considered passengers when attending counter-terrorism conference while traveling aboard vessel, where conference had certain stated goals all aimed at preventing shipboard terrorist activity and developing coordinated responsive actions to such activity: “In this sense, the activities of the proposed conference attendees is [sic] inexorably and immediately tied to the business of the vessel [itself]”).

In addition, the workman who would need to travel aboard the vessel to repair its fuel oil system while en route would also not be a passenger, as this repairman would likewise clearly be connected with the operation of the vessel under these circumstances (see HQ 113949, of May 14, 1997 (repairman remaining aboard vessel to complete repairs to vessel’s tenders (shore launches) not passenger within the meaning of § 4.50(b) “because the repairman is connected with the operation of the vessel”). See also, e.g., HQ 116743, of October 27, 2006 (“workmen, technicians, or observers...not classified as passengers...if they are required to be on board to contribute to the accomplishment of the operation or navigation of the vessel during the voyage”), and citing Customs telex 104712, of July 21, 1980 (repairmen not passengers when carried aboard vessel between U.S. ports “for purpose of repairing vessel en route between such ports“).

HOLDING:

Under the facts presented in this case, neither the Defense Department officials nor the repairman would be passengers under 46 U.S.C. 55103 (formerly 46 U.S.C. App. 289) while being carried aboard the vessel for the described purposes. Thus, their transportation aboard the vessel for such purposes would not be in violation of 46 U.S.C. 55103.

Sincerely,

/S/ Glen E. Vereb

Glen E. Vereb

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