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HQ H027615

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May 6, 2008

VES-3-02-OT:RR:BSTC:CCI H027615 JLB

CATEGORY: CARRIER

Ms. Hetty A. Fernandez
Operations Agent
NSA Agencies Inc.
261 North Joachim Street
Mobile, Alabama 36603

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

Dear Ms. Fernandez:

This letter is in response to your correspondence dated May 6, 2008, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the M/V UBC TORONTO constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows.

FACTS

The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/V UBC TORONTO (“the vessel”). The individual embarked on May 6, 2008 at Mobile, Alabama and will disembark at the port of New Orleans, Louisiana on or about May 9, 2008. The individual will travel aboard the vessel, as a superintendent, to perform a quarterly inspection. This inspection will include examination of the propulsion equipment in the engine room such as the main engine, the propeller shaft and the steering gear.

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, the individual would be traveling aboard the non-coastwise-qualified vessel to perform a quarterly inspection of the propulsion equipment in the engine room. Under the facts presented, the individual would be “directly and substantially” related to the operation and navigation 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, the coastwise transportation of the subject 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 an individual is not in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb, Chief

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