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HQ H016781

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September 12, 2007

VES-3-02-RR:BSTC:CCI H016781 CK

CATEGORY: CARRIER

Erik J. Fiske
Risk Manager
APL Maritime, Ltd.
6901 Rockledge Drive
Suite 200
Bethesda, MD 20817

RE: Coastwise transportation; passengers; 46 U.S.C. §55103

Dear Mr. Fiske:

In your letter transmitted by facsimile on September 6, 2007, you requested an auditor be allowed to travel aboard your company’s U.S.-flagged vessel M/V PRESIDENT JACKSON from Savannah, GA to Norfolk, VA. Our ruling on your request follows.

FACTS:

You requested that one auditor be allowed to travel aboard the U.S.-flagged non-coastwise-qualified M/V PRESIDENT JACKSON on a voyage from Savannah, GA to Norfolk, VA. This individual would embark September 17, 2007 at Savannah, GA and disembark in Norfolk, VA on September 19, 2007. The auditor will board the vessel to perform an internal shipboard audit on the vessel’s safety, quality, and environmental management system in order to maintain the company’s document of compliance and the vessel’s safety management certificates pursuant to requirements found in 33 CFR Part 96 and 46 USC Chapter 32. Specifically, the auditor will perform a selective sampling of the vessel’s operating logs, watch standing records, pollution prevention, and security and safety plans to verify the management system is operating as designed and to document any non-compliance.

ISSUE:

Whether the auditor described above would be a passenger under the coastwise passenger statute, 46 U.S.C. §55103.

LAW AND ANALYSIS:

The coastwise passenger statute, 46 U.S.C. §55103(recodified from former 46 U.S.C. App. 289; Pub.L. 109-304 October 6, 2006) provides that no vessel may transport passengers between ports or places in the United States either directly or by way of a foreign port, upon a penalty of $300 for every passenger so transported and landed (see 19 CFR 4.80(b), unless it has been documented for the coastwise trade under chapter 121 of Title 46, United States Code. Under section 55103 (see 19 CFR 4.80a(a)(5)), a “passenger” is any person carried aboard a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business (19 CFR 4.50(b)). In this regard, as resolved in a June 5, 2002, Customs Bulletin notice (Vol. 36, No. 23, p. 50, persons transported on a vessel would be passengers unless they were “directly and substantially” connected with the operation, navigation, ownership, or business of that vessel itself. In the current context, Headquarters ruling (HQ) 116752, of November 3, 2006, is instructive in explaining the operative administrative law applicable in this context, as follows:

[T]he Customs Service [now Customs and Border Protection (CBP)] has repeatedly ruled that if any persons are transported coastwise who are bona fide agents of the line or officers of companies acting as such agents and if such persons while on the voyage are concerned with observing and appraising the facilities offered, such personsare not ‘passengers’ under section 289 [now section 55103] and §4.50(b) (emphasis added) (HQ 103410, of May 5, 1978 (operations manager of freight line transported coastwise aboard freight line’s vessel to observe vessel’s operational pattern thereby deemed connected with operation and business of vessel so as not to be passenger when being transported for this purpose)).

HQ 116752 (emphasis added) (executive chef of cruise line transported aboard its vessel “to monitor and access the standards of [vessel’s culinary operation onboard” found to be connected with that vessel’s operation/business, and not considered passenger).

Further we note that 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 section 4.50(b) and 46 U.S.C. §55103 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 (November 5, 1975); see also HQ 116721 (September 25, 2006, quoting HQ 101699).

Additionally, we have previously held that an auditor aboard ship to examine the safety and security functions on the vessel, interview pertinent personnel as to their activities related to safety and security, and examine records that support the company’s safety management system and vessel security plan to ensure the ship’s personnel are in compliance with both international regulations and company policies and procedures during the transit of the vessel was sufficiently connected to the operation of the vessel to not be considered a passenger for purposes of 46 U.S.C. §55103. HQ H006224, dated February 2, 2007.

In the present case, the auditor boarding the M/V PRESDIENT JACKSON to perform an internal shipboard audit on the vessel’s safety, quality, and environmental management system in order to maintain the company’s document of compliance and the vessel’s safety management certificates pursuant to requirements found in 33 CFR Part 96 and 46 USC Chapter 32 by performing a selective sampling of the vessel’s operating logs, watch standing records, pollution prevention, and security and safety plans to verify the management system is operating as designed and to document any non-compliance is directly and substantially connected to the operation of the vessel and this individual is therefore not a passenger for purposes of 46 U.S.C. §55103.

HOLDING:

Under the facts presented, the auditor described above is not a passenger for purposes of administering 46 U.S.C. §55103. Hence, the proposed coastwise transportation of the auditor aboard the M/V PRESIDENT JACKSON would not be in violation of 46 U.S.C. §55103.

Sincerely,

Glen E. Vereb

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