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HQ H020655

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December 10, 2007

VES-3-02-OT:RR:BSTC:CCI H020655 LLB

CATEGORY: CARRIER

Mr. Leto Lirio
General Steamship Corporation
445 West Weber Street, Suite 232
Waterfront Building
Stockton, California 95203

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

Dear Mr. Lirio:

This letter is in response to your correspondence of December 7, 2007, in which you inquire about the coastwise transportation of the individual mentioned therein aboard the M/V UNION RANGER. Our decision follows.

FACTS

The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/V UNION RANGER (the “vessel”). The individual will embark in Sacramento, California on December 19, 2007, for the purpose of supervising the vessel’s crew during cargo hold cleaning operations. The foregoing project is expected to be completed on or about December 25, 2007, at which point the subject individual will disembark in Portland, Oregon or Vancouver, Canada.

ISSUE

Whether the individual described in the FACTS section above is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 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. See 33 C.F.R. § 2.22(a)(2)(2007). 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. which provides:

(a) 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- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) 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. (b)Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.

The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide:

A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business.

19 C.F.R. § 4.50(b). Further, the CBP regulations provide that if a passenger is on a voyage to one or more coastwise ports and a nearby foreign port or ports (but at no other foreign port) and the passenger disembarks at a coastwise port other than the port of embarkation, there is a violation of the coastwise law. See 19 C.F.R. § 4.80a(a)(1)-(3) (defining “coastwise port”, “nearby foreign port”, and “distant foreign port”, respectively). The terms “embark” and “disembark” are defined in 19 C.F.R. § 4.80a(a)(4). We note, Vancouver, Canada, is a “nearby foreign port”. See 19 C.F.R. § 4.80a(a)(2) (stating that “[n]earby foreign port means any foreign port in North America . . .”).

You state that the subject individual will be transported on the vessel for the purpose of supervising the vessel’s crew during cargo hold cleaning operations. 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 C.F.R. § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699.

In the present case, to the extent 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 itself, as would be the case under the facts herein submitted, such individual would not be considered a passenger. See HQ 116721, supra; and see HQ 116659 (May 19, 2006) (referencing the “direct and substantial” test); see also, e.g., Customs telex 104712 (July 21, 1980) (finding that repairman 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 activity in this case is directly and substantially connected with the operation and business of the vessel. Therefore, we determine that the subject individual is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 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 C.F.R. § 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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