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HQ H024921

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March 24, 2008

VES-3-02-OT:RR:BSTC:CCI H024921 JLB

CATEGORY: CARRIER

Ms. Rose Brooks
CMA SHIPS UK Ltd
75 King William Street - 6th Floor
London
EC4N 7BE
United Kingdom

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

Dear Ms. Brooks:

This letter is in response to your correspondence dated March 18, 2008, in which you request a ruling on whether your coastwise transportation aboard the CMA CGM UTRILLO 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 CMA CGM UTRILLO (“the vessel”). You will embark on March 31, 2008 at Savannah, Georgia and will disembark at the port of Philadelphia, Pennsylvania on April 3, 2008. You will travel aboard the vessel, as technical superintendent, to perform internal International Ship Management (“ISM”) and International Ship and Port Security (“ISPS”) audits as well as a technical inspection.

The inspection will include examining the operating condition of all machinery onboard, addressing any current concerns or problems with the machinery, performing maintenance planning and record keeping. Additionally, you will carry out inspections of the hatch covers and holds, lashing equipment, deck machinery such as winches and windlasses, pilot ladders, accommodation ladders, and ballast tank vent heads. Finally, you will check the administrative records onboard the vessel including the ISM records, maintenance files, certificates and cargo records and will generate a written report to be submitted to the vessel managers.

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 a technical inspection as well as internal ISM and ISPS audits. 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

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