HQ H014688 - Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR 4.50(b) - United States International Trade Commision Rulings

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HQ H014688

July 30, 2007

VES-3-02:OT:RR:BSTC:CCI H014688 ALS

CATEGORY: CARRIER

Mr. Sanjiv Sehgal
Operations Manager
Wilhelmsen Technical & Operational Solutions 1 Kim Seng Promenade
Great World City West Tower
Singapore 237994

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

Dear Mr. Sehgal:

This letter is in response to your request of July 17, 2007, with respect to the coastwise transportation of a certain individual. Our ruling is set forth below.

FACTS:

You ask whether a certain individual may be transported on the non-coastwise qualified M/V GRUS, M/V TARONGA, M/V TAMESIS, AND M/T FRONT CENTURY (“vessels"). The individual will embark on the GRUS on August 1, 2007 in Portland, Oregon and disembark in Long Beach, California on August 5, 2007. The individual will embark on the TARONGA on August 6, 2007 in Baltimore, Maryland and disembark on August 9, 2007 in Savannah, Georgia. The individual will embark on the TAMESIS on August 12, 2007 in Baltimore and disembark on August 15, 2007 in Savannah. The individual will also embark on the FRONT CENTURY on August 16, 2007 in New Orleans, Louisiana and disembark on August 20, 2007 in New Orleans.

You state that the individual will embark on these vessels “for the purpose of audits and training during the coming weeks” and that “these audits are carried out to verify the ships’ compliance with IMO’s International Safety Management (ISM) Code and the company’s additional requirements for safety management.” You also note that your company conducts “training for the crew during these ship visits.”

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:

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), 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 individual will embark on these vessels “for the purpose of audits and training during the coming weeks” and that “these audits are carried out to verify the ships’ compliance with IMO’s International Safety Management (ISM) Code and the company’s additional requirements for safety management.” You also note that your company conducts “training for the crew during these ship visits.” 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. CBP Ruling HQ 101699 (November 5, 1975); see also CBP Ruling HQ 116721 (September 25, 2006).

Thus, in the present case, to the extent that the individual would be engaged in any shipboard activities while traveling on the foreign vessels 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 CBP Ruling HQ 116659 (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."

We find that the proposed activity in this case is directly and substantially connected with the operation and business of the vessels. Therefore, we determine that the subject individual is not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b). Accordingly, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103.

We note that the voyage in which the individual will be embarking and disembarking in New Orleans would not constitute coastwise movement, as the individual will not be transported between different coastwise points as contemplated under section 55103. Therefore, the proposed transportation of the subject individual from New Orleans and back to New Orleans on a non-coastwise-qualified vessel would not be a violation of section 55103.

HOLDING:

The subject individual 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.

The proposed transportation of the subject individual from New Orleans and back to New Orleans on a non-coastwise-qualified vessel would not be a violation of 46 U.S.C. § 55103 as it does not constitute movement between different coastwise points as contemplated under section 55103.

Sincerely,

Glen E. Vereb

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