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HQ H022139

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January 18, 2008

VES-3-02-OT:RR:BSTC:CCI H022139 JLB

CATEGORY: CARRIER

Mr. Marcello Provedel
Fillette, Green Shipping Services (USA) Corp. 3333 West Kennedy Boulevard
Suite 207
Tampa, Florida 33609

RE: Coastwise Transportation; 46 U.S.C. § 55103

Dear Mr. Provedel:

This letter is in response to your correspondence dated January 18, 2008, in you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the M/V ATLANTIC EXPRESS constitutes a violation of 46 U.S.C. § 55103. Additionally, you want to know whether three crewmembers may get off a non-coastwise-qualified vessel at Tampa, Florida and rejoin the vessel at Houston, Texas. Our ruling on your request follows.

FACTS

The M/V ATLANTIC EXPRESS (“the vessel”) will be discharging bauxite in Tampa, Florida and will be loading a full cargo of wheat in Houston, Texas. Consequently, a cleaning crew of four cleaners was engaged to clean the vessel’s cargo holds during the voyage from Tampa to Houston. Since the vessel is only certified to carry a maximum of thirty-two people and there are currently thirty-one crewmembers onboard, three crewmembers need to be removed from the ship for the voyage. The vessel owners propose to take three crewmembers off the vessel in Tampa and fly them to Houston to meet the ship. Subsequently, the three individuals will board the vessel for its voyage to Balboa, Panama.

ISSUE

Whether the proposed arrangement described above constitutes a violation of 46 U.S.C. § 55103?

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 four individuals would be traveling aboard the non-coastwise-qualified vessel to clean the cargo holds. Under the facts presented, the individuals would be “directly and substantially” related to the operation and business of the vessel 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.

The second issue is whether the three crewmembers may get off a non-coastwise-qualified vessel at Tampa, Florida and rejoin the vessel at Houston, Texas. As permanent crewmembers, the three individuals are outside of the scope of the coastwise passenger statute as they are not “passengers” as that term is defined in 19 C.F.R. § 4.50(b). Furthermore, they will be listed on the inward foreign manifest. Pursuant to 19 C.F.R. § 4.7, “the master of every vessel arriving in the United States and required to make entry shall have on board his vessel a manifest, as required by section 431, Tariff Act of 1930 (19 U.S.C. 1431)” and that manifest should include the crew list, Customs and Immigration Form I-418. Accordingly, the crewmembers rejoining the vessel in Houston, Texas does not constitute a violation of 46 U.S.C. § 55103.

HOLDING

The subject individuals, the cleaning crew, 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 an individual is not in violation of 46 U.S.C. § 55103. Additionally, the subject crewmembers are outside the scope of 46 U.S.C. § 55103, therefore, the proposed arrangement is not in violation of the coastwise passenger statute.

Sincerely,

Glen E. Vereb, Chief

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