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HQ H019332

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November 5, 2007

VES-3-02-OT:RR:BSTC:CCI H019332 JLB

CATEGORY: CARRIER

Mr. Jonathan Henson
Ship Vetting Program Manager
Maersk Line, Ltd.
One Commercial Place
20th Floor
Norfolk, Virginia 23510-2103

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

Dear Mr. Henson:

This letter is in response to your correspondence dated November 2, 2007, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the MAERSK OHIO and MAERSK IOWA constitute a violation of 46 U.S.C. § 55103. Our ruling on your request follows.

FACTS

The voyages in question involve the transportation of the subject individuals aboard the non-coastwise-qualified MAERSK OHIO and MAERSK IOWA. Two individuals will embark the MAERSK OHIO on November 12, 2007 at Newark, New Jersey and will disembark at the port of Charleston, South Carolina on November 16, 2007. Then two individuals will embark the MAERSK IOWA on November 26, 2007 at Newark, New Jersey and will disembark at the port of Charleston, South Carolina on November 30, 2007. The individuals will travel aboard the vessels in order to conduct internal International Safety Management (“ISM”) audits as required by international convention and U.S. regulations.

ISSUE

Whether the individuals described above would be “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b)?

LAW AND ANALYSIS

The coastwise passenger statute, former 46 U.S.C. App. § 289 recodified as 46 U.S.C. § 55103, pursuant to P.L. 109-304 (October 6, 2006), states that no foreign vessel shall transport passengers “between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port,” under a penalty of $300 for each passenger so transported and landed. See also 19 C.F.R. § 4.80(b)(2). 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.

Under 46 U.S.C. § 55103, a “passenger” is any person carried aboard a vessel “who is not connected with the operation of the vessel, her navigation, ownership, or business.” See also 19 C.F.R. § 4.50(b). In this regard, U.S. Customs and Border Protection (“CBP”) provides a strict interpretation of “passenger” defining the term as persons transported on a vessel unless they are "directly and substantially" connected with the operation, navigation, ownership or business of that vessel itself. See Customs Bulletin of June 5, 2002, Vol. 36, No. 23, at pp. 50.

Pursuant to Headquarters Decision 101699, dated November 5, 1975, it is well settled that "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 section 289 [now section 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." See also Headquarters Decision 116721, dated September 25, 2006. In the present case, the individuals would be traveling aboard the non-coastwise-qualified vessels to conduct internal ISM audits. Under the facts presented, the individuals would be “directly and substantially” related to the operation and business of the vessels during the voyage and would not be considered “passengers” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individuals is not in violation of 46 U.S.C. § 55103.

HOLDING

The subject individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb, Chief

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