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HQ H024168




March 10, 2008

VES-3-02-RR:BSTC:CCI H024168 CK

CATEGORY: CARRIER

Ms. Bea Wright
APM Terminals
2500 Navy Way
Terminal Island, CA 90731

RE: Coastwise transportation; passengers; 46 U.S.C. §55103

Dear Ms. Wright:

This letter is in response to your correspondence dated March 3, 2008, in which you request a ruling on whether the coastwise transportation the individuals mentioned therein aboard the SL INTREPID constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows.

FACTS:

You requested that four technicians from Sperry Marine be allowed to travel aboard the non-coastwise-qualified SL INTREPID on a voyage from Long Beach, CA to Oakland, CA. These individuals would embark March 10, 2008 at Long Beach, CA and disembark on or about March 11, 2008 in Oakland, CA. The four technicians will be attending the vessel to do radar installation.

ISSUE:

Whether the individuals described above would be passengers under the coastwise passenger statute, 46 U.S.C. §55103.

LAW AND ANALYSIS:

The coastwise passenger statute, 46 U.S.C. §55103 (recodified from former 46 U.S.C. App. 289; Pub.L. 109-304 October 6, 2006) provides that no vessel may transport passengers between ports or places in the United States either directly or by way of a foreign port, upon a penalty of $300 for every passenger so transported and landed (see 19 CFR 4.80(b), unless it has been documented for the coastwise trade under chapter 121 of Title 46, United States Code. Under section 55103 (see 19 CFR 4.80a(a)(5)), a “passenger” is any person carried aboard a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business (19 CFR 4.50(b)). In this regard, as resolved in a June 5, 2002, Customs Bulletin notice (Vol. 36, No. 23, p. 50, persons transported on a vessel would be passengers unless they were “directly and substantially” connected with the operation, navigation, ownership, or business of that vessel itself. In the current context, Headquarters ruling (HQ) 116752, of November 3, 2006, is instructive in explaining the operative administrative law applicable in this context, as follows:

[T]he Customs Service [now Customs and Border Protection (CBP)] has repeatedly ruled that if any persons are transported coastwise who are bona fide agents of the line or officers of companies acting as such agents and if such persons while on the voyage are concerned with observing and appraising the facilities offered, such personsare not ‘passengers’ under section 289 [now section 55103] and §4.50(b) (emphasis added) (HQ 103410, of May 5, 1978 (operations manager of freight line transported coastwise aboard freight line’s vessel to observe vessel’s operational pattern thereby deemed connected with operation and business of vessel so as not to be passenger when being transported for this purpose)).

HQ 116752 (emphasis added) (executive chef of cruise line transported aboard its vessel “to monitor and access the standards of [vessel’s culinary operation onboard” found to be connected with that vessel’s operation/business, and not considered passenger).

Further we note that 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 section 4.50(b) and 46 U.S.C. §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. HQ 101699 (November 5, 1975); see also HQ 116721 (September 25, 2006, quoting HQ 101699) and HQ H22148 (January 18, 2008) (A captain riding the vessel to advise and supervise on the tank cleaning and back loading operation of a vessel was not a “passenger.”)

In the present case, the four technicians form Sperry Marine will be attending the vessel for radar installation. The above-described individuals are directly and substantially connected to the navigation, operation and business of the vessel and are not passengers for purposes of 46 U.S.C. §55103.

HOLDING:

Under the facts presented, the four technicians described above are not passengers for purposes of administering 46 U.S.C. §55103. Hence, the proposed coastwise transportation aboard the SL INTREPID would not be in violation of 46 U.S.C. §55103.

Sincerely,

Glen E. Vereb

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