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HQ H014778




August 3, 2007

VES-3-02-OT:RR:BSTC:CCI H014778 LLB

CATEGORY: CARRIER

Mr. Bradley Wyatt
952 Houston Northcutt Boulevards
Suite 100
Mount Pleasant, SC 29464

RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a; 50 Fed. Reg. 26981; disembark

Dear Mr. Wyatt:

This letter is in response to your July 24, 2007, correspondence, and your supplemental correspondences, in which you inquire about the coastwise transportation of the five individuals mentioned therein aboard the CP NAVIGATOR. Our decision follows.

FACTS

The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified CP NAVIGATOR (the “vessel”). Three individuals embarked in Bremerhaven, Germany on July 27, 2007. You indicate in your August 2, 2007, correspondence with this office that another individual will embark in Charleston, South Carolina on August 4, 2007 and another individual will embark in Houston, Texas. All of the individuals will disembark in Antwerp, Belgium. The foregoing individuals will be transported for the purpose of learning how to navigate and operate the vessel so that they will prepared to take over operations of the vessel as the new crew when the vessel is reflagged in Houston.

ISSUE

Whether the use of a non-coastwise qualified vessel in the voyage described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103.

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. which provides:

(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- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) 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.

The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide:

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

19 C.F.R. § 4.50(b). Further, the CBP regulations provide that if a passenger is on a voyage to one or more coastwise ports and a distant foreign port or ports (whether or not the voyage includes a nearby foreign port or ports) See 19 C.F.R. § 4.80a(a)(1)-(3)(defining “coastwise port”, “nearby foreign port”, and “distant foreign port”, respectively). The terms “embark” and “disembark” are defined in 19 C.F.R. § 4.80a(a)(4), infra. and the passenger disembarks at a coastwise port, there is no violation of the coastwise law provided the passenger proceeds with the vessel to a distant foreign port. 19 C.F.R. § 4.80a(b)(3).

In this regard, we note that the terms “embark” and “disembark” for purposes of § 4.80a, are defined in paragraph (a)(4) of that section, which provide:

Embark means a passenger boarding the vessel for the duration of a specific voyage and disembark means a passenger leaving a vessel at the conclusion of a specific voyage. The terms embark and disembark are not applicable to a passenger going ashore temporarily at a coastwise port who reboards the vessel and departs with it on sailing from the port.

(emphasis in original). The regulatory history to 19 C.F.R. § 4.80a(a)(4), as amended provides, in pertinent part:

The terms “embark” and “disembark” are trade words of art which normally mean going on board a vessel for the duration of a specific voyage and leaving a vessel at the conclusion of a specific voyage. In this normal context the words do not contemplate temporary shore leave for any specific number of hours during a voyage. It has been determined that the use of the terms in the statutory language “so transported and landed” means [] final and permanent disembarking . . .

Customs Regulations Amendments Relating to Passengers on Foreign Vessels Taken on Board and Landed in the United States, 50 Fed. Reg. 26981 (July 1, 1985)(internal Attorney General Opinion citations omitted); Treas. Dec. 85-109. Thus, based on the regulatory history to 19 C.F.R. § 4.80a, a passenger is considered “disembarked” from a vessel when the passenger “finally and permanently” leaves the vessel at the conclusion of the specific voyage.

Based on the foregoing, the coastwise laws are inapplicable to the subject individuals’ voyage. With regard to the three individuals that embarked in Bremerhaven, their disembarkation in Antwerp would make the coastwise laws inapplicable to their voyage insofar as their transportation aboard the vessel will be between two foreign ports. With regard to the remaining two individuals, e.g. the individuals embarking in Charleston and Houston, those individuals will also be disembarking in Antwerp, and as such, will not be in violation of the coastwise laws insofar as their transportation is between a coastwise port and a distant foreign port. See 19 C.F.R. § 4.80a(b)(3), supra.

Nevertheless, to the extent you state that all of the subject individuals would be transported on the vessel for the purpose of learning how to navigate and operate the vessel so that they will prepared to take over operations of the vessel as the new crew, they would not be considered passengers. 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 C.F.R. § 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 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. To the extent that the subject 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, navigation, or business itself, the subject individuals would not be considered passengers. See HQ 116721, supra; and see HQ 116659(May 19, 2006)(referencing the “direct and substantial” test); see also, e.g., Customs telex 104712 (July 21,1980)(finding that repairman were not passengers when carried aboard a foreign vessel between U.S. ports “for [the] purpose of repairing vessel en route between such ports.”).

HOLDING

The use of a non-coastwise qualified vessel in the voyage described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb
Chief

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