HQ H015648 - Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR 4.50(b) - United States International Trade Commision Rulings

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HQ H015648

August 15, 2007

VES-3-02:OT:RR:BSTC:CCI H015648 ALS

CATEGORY: CARRIER

Mr. M. Jose Antony
Chief Engineer
Barber Ship Management
17th Floor, 1 Sentral Building
Jalan Travers
Kuala Lumpur Sentral
50470 Kuala Lumpur, Malaysia

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

Dear Mr. Antony:

This letter is in response to your request of August 11, 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/T FREJA SPRING ("vessel"), from Boston, Massachusetts to New Haven, Connecticut. The individual will embark on or about August 15, 2007 in Boston and disembark in New Haven on or about August 17, 2007. You state that the individual will be onboard to perform the following tasks:

A complete inspection of the decks and engine room including all equipment together with the Captain and Chief Engineer. Inspection of a few available tanks like ballast tanks to gauge the condition of the internals and make plans with the captain and chief engineer for maintenance and upkeep for the next 4-6 months. Discuss with the Captain and Chief Engineer various company procedures regarding the safe operation of the vessel. Discuss with the crew any problems faced by crewmembers. Take photographs of the various areas in order that the management company can inform the owners of any specific additional requirements. Check that the vessel staff follows all the MARPOL requirements regarding pollution of the environment. A review of the navigation procedures being followed onboard to ensure that safe procedures are adhered to. A review of all the documentation as per the ISM [International Safety Management] for safe operations of the vessel. A review of the planned maintenance system on board.

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 be onboard to perform the tasks delineated 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. 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 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 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 activities are directly and substantially connected with the operation and business of the vessel and are required to be performed during the voyage of the vessel in question. 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.

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.

Sincerely,

Glen E. Vereb
Chief

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