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HQ H013700

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July 6, 2007

VES-3-02:RR:BSTC:CCI H013700 ALS

CATEGORY: CARRIER

Mr. Kimo Pierson
Operations Manager
Transmarine Navigation Corporation
677 Ala Moana Boulevard Suite 800
Honolulu, Hawaii 96813

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

Dear Mr. Pierson:

This letter is in response to your request with respect to the coastwise transportation of several individuals. We received your request on July 2, 2007. Our ruling is set forth below.

FACTS:

You ask whether certain individuals may be transported on the non-coastwise qualified SONANGOL NAMIBE (the "vessel"), from Honolulu, Hawaii to Anacortes, Washington. You state the following in regard to the subject individuals:

The specific responsibilities of service Engineers joining the vessel are as follows -

1) Mr. Jxx Hxxx - (Korean National)
He will represent the shipyard Daewoo Ship Building, Korea, who built the ship. He will be overall incharge of all repairs. In addition he will be investigating all the Guarantee Claims made so far by the ship and propose best planned action of shipyard to attend to them in future.

2) Mr. Mxxxxxx Rxxxx and Mr. Lxxx Sxxxxxxxx (German National)

They represent Blohm and Voss, Germany who are the makers of Oil Water Separator. The purpose of their visit is to test the Oil water separator during the voyage and carry out repairs as required to settle the Guarantee Claim on Oil Water separator.

3) Mr. Hxxx Sxxx, Hx and Mr. Sxxxx Ix, Cxxxx (Korean Nationals)

They represent Doosan MAN B&W Deisel Engines, Korea who are the makers of Main Engine. The purpose of their visit is to investigate the high Lubricating oil consumption being experienced onboard during operation. Based on their findings they will propose and carry out repairs to settle the Guarantee Claim made by vessel in this regards.

[In all cases, the names of the individuals have been partially redacted for confidentiality purposes.]

ISSUE:

Whether the subject individuals are "passengers" 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: 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.

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

Section 4.50(b), 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 subject individuals will be transported on the vessel to perform the duties you described in your submission, as noted above in the FACTS section of this letter. 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. See CBP Ruling HQ 101699, (November 5, 1975); see also CBP Ruling HQ 116721 (September 25, 2006), quoting CBP Ruling HQ 101699.

Thus, in the present case, to the extent that the individuals would be engaged in any shipboard activities while traveling on the foreign 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 passengers (see HQ 116721, supra; and CBP Ruling HQ 116659 (May 19, 2006), referencing the "direct and substantial" test).

We find that the proposed activities in this case are directly and substantially connected with the operation and business of the vessel. Therefore, we determine that the subject individuals are not "passengers" within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b). Accordingly, the coastwise transportation of the subject individuals is not in violation of 46 U.S.C. § 55103.

HOLDING:

The subject individuals are not "passengers" within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b). Therefore, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb
Chief

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