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HQ H009106





April 2, 2007

VES-3-02-RR:BSTC:CCI H009106 GOB

CATEGORY: CARRIER

Captain W. J. Brasier
Director, Operations
Hapag-Lloyd USA, LLC
401 East Jackson Street
Suite 3200
Tampa, FL 33602

RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR § 4.50(b)

Dear Captain Brasier:

This letter is in response to your correspondence of April 1, 2007 with respect to the coastwise transportation of an individual. Our ruling is set forth below.

FACTS:

As part of the Maritime Security Program, Hapag-Lloyd USA, LLC is replacing its fleet with newer ships, and in the process, the non-coastwise-qualified M/V LIVORNO EXPRESS (the “vessel”) will be transferred to Hapag-Lloyd AG under the Bermuda flag. The new crew will be Indian nationals and part of the process of the transfer is to allow the new operators, Anglo Eastern Ship Managers, the opportunity to become familiar with the vessel. To that end, you ask whether a technical superintendent of Anglo Eastern, also an Indian national, may be transported on the vessel on its voyage from Miami to Houston on April 3, 2007. In Houston, on Friday April 6, 2007, the vessel will be deleted from U.S. registry and the U.S. citizen crew will disembark. At the same time, the vessel will be registered under the Bermuda flag and the Anglo Eastern crew will man the vessel.

ISSUE:

Whether the subject individual is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b)?

LAW AND ANALYSIS:

Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.”

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.

The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that:

(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel-
is wholly owned by citizens of the United States for purposes of engaging in the coastwise traffic; and
has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.

(b) Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.

Section 4.50(b), Customs and Border Protection (“CBP”) Regulations (19 CFR § 4.50(b)) provides as follows:

A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.

You state that the technical superintendent will be transported as described “in order to become familiar with the ship.” In this context, and in accordance with previous Headquarters rulings, workmen, technicians, or observers transported by vessel between ports of the United States are not classified as “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b), 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. HQ 101699, of November 5, 1975; see also HQ 116721, of September 25, 2006, quoting HQ 101699.

Thus, in the present case, to the extent that the individual would be engaged in any shipboard activities while traveling on the non-coastwise-qualified vessel between coastwise ports, that would be “directly and substantially” related to the operation or business of the vessel itself, as would be the case under the facts herein submitted, such individual would not be considered to be a passenger (see HQ 116721, supra; and see HQ 116659, of May 19, 2006, referencing the “direct and substantial” test). See also, e.g., Customs telex 104712, of July 21, 1980, finding that repairmen were not passengers when carried aboard a foreign vessel between U.S. ports “for [the] purpose of repairing vessel en route between such ports."

Upon consideration of this matter, we find that the technical superintendent is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). Therefore, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103.

HOLDING:

The technical superintendent is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). Therefore, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb
Chief

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