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HQ H019611





November 15, 2007

VES-3-02-OT:RR:BSTC:CCI H019611 JLB

CATEGORY: CARRIER

Mr. Per Arild Hallgren-Andresen
Vessel Manager/Superintendent
Barber Ship Management Snd. Bhd.
17th Floor, 1 Sentral Building
Jalan Travers
Kuala Lumpur Sentral
50470 Kuala Lumpur, Malaysia

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

Dear Mr. Hallgren-Andresen:

This letter is in response to your correspondence dated November 13, 2007, in which you request a ruling on whether your coastwise transportation aboard the M/V MOSEL ACE constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows.

FACTS

The voyage in question involves your transportation aboard the non-coastwise-qualified M/V MOSEL ACE ("the vessel"). You will embark on November 25, 2007 at Charleston, South Carolina and will disembark at the port of Baltimore, Maryland on November 28, 2007. You have stated you will travel aboard the vessel, as superintendent, in order to conduct a complete inspection of the vessel's condition and to ensure compliance with the MARPOL requirements regarding pollution of the environment and the International Safety Management ("ISM") procedures for safe operation of the vessel. In addition, you will review and discuss the safety and maintenance of the vessel with the captain and the chief engineer to provide a report to the vessel owners.

ISSUE

Whether the individual described above would be a "passenger" 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, you would be traveling aboard the non-coastwise-qualified vessel to conduct an inspection and review the maintenance and safety of the vessel. Under the facts presented, you would be "directly and substantially" related to the operation and business of the vessel during the voyage and would not be considered a "passenger" under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, your coastwise transportation is not in violation of 46 U.S.C. § 55103.

HOLDING

You are not a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, your coastwise transportation is not in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb, Chief
Cargo Security, Carriers and Immigration Branch

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