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HQ H018377




October 12, 2007

VES-3-02-RR:BSTC:CCI H018377 CK

CATEGORY: CARRIER

Joerg Flechsig
Johnson Controls Systems & Service Gmbh
Merkurring 33-35
22143 Hamburg

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

Dear Mr. Flechsig:

In your letter email of October 12, 2007, you requested that your employee be allowed to travel aboard the non-coastwise-qualified CMS HOECHST from New York, NY to Savannah, GA. Our ruling on your request follows.

FACTS:

You requested that your employee be allowed to travel aboard the non-coastwise-qualified CMS HOECHST on a voyage from New York, NY TO Savannah, GA. This individual would embark on or about October 18, 2007 at New York, NY and disembark on or about October 22, 2007 in Savannah, GA. Your employee will be aboard the vessel to repair the air conditioning plant, which will include exchanging some defective stop valves and inspecting the air conditioning compressors.

ISSUE:

Whether your employee 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).

In the present case, your employee who is boarding the vessel to repair the air conditioning plant including exchanging defective stop valves and inspecting the air conditioning compressors 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, your employee described above is not a passenger for purposes of administering 46 U.S.C. §55103. Hence, the proposed coastwise transportation of this individual aboard the CMS HOECHST would not be in violation of 46 U.S.C. §55103.

Sincerely,

Glen E. Vereb

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