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HQ H023066




February 14, 2008

VES-3-02-OT:RR:BSTC:CCI H023066 LLB

CATEGORY: CARRIER

Mr. William Hill
APL Maritime, Ltd.
6901 Rockledge Drive, Suite 200
Bethesda, Maryland 20817-1822

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

Dear Mr. Hill:

This letter is in response to your correspondence of February 8, 2008, which was forwarded to this office by Mr. Desmond Michael of Norton Lilly International on the same date, and your electronic mail messages of February 12, 13, and 14, 2008. In your correspondence and electronic mail messages, you inquire about the coastwise transportation of the six individuals mentioned therein aboard the PRESIDENT POLK. Our decision follows.

FACTS

The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified PRESIDENT POLK (the “vessel”) between the following U.S. cities according to the following itinerary and will embark and disembark the vessel as indicated below.

New York, New York February 14, 2008
Charleston, South Carolina February 17, 2008 Savannah, Georgia February 18, 2008
Norfolk, Virginia February 20, 2008

One of these individuals transported aboard the vessel will install and upgrade the infrasonic soot cleaning system.

This individual will embark in New York on February 14, 2008 and disembark in Charleston on February 17, 2008. Two individuals will install and test the electronic chart display and information system. These two individuals will embark in Savannah on February 18, 2008 and disembark in Norfolk on February 20, 2008. The remaining three individuals will be transported aboard the vessel for the purpose of performing maintenance and calibrations on the main engine. These three individuals will embark in New York on February 14, 2008 and disembark in Savannah on February 18, 2008.

ISSUE

Whether the individuals described in the FACTS section above are “passengers” 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).

You state that the subject individuals will be transported on the vessel for the purpose of main engine maintenance and to install an infrasonic soot cleaning system and electronic chart display and information system on the vessel as described above. 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 individuals 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 individuals would not be considered passengers. 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.”). As such, we find that such individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of such 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,

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