U.S. Department of Homeland Security

Washington, DC 20229

U.S. Customs and Border Protection

HQ H258248

October 16, 2014

VES-3-OT:RR:BSTC:CCR H258248 WRB

CATEGORY: Carriers

Mr. Yiannis Fournarakis
Unitized Ocean Transport, Ltd.
18 Pentelis Street
17564 Palaio Faliro
Athens, Greece

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

Dear Mr. Fournarakis:

This is in response to your correspondence of October 14, 2014, in which you inquire about the coastwise transportation of the one individual mentioned therein aboard the M/V CAP DOMINGO. Our decision follows.

FACTS

The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/V CAP DOMINGO (“the vessel”). The individual will embark the vessel in New York, New York, on or about October 19, 2014, and will disembark in Port Everglades, Florida, on or about October 26, 2014. The individual will be carried onboard to evaluate the crew on their familiarization with the onboard Enterprise Resource Planning (ERP) system, train the crew on new modules in the ERP system, familiarize the crew with new technical department forms, inspect the general condition of the vessel’s machinery, and evaluate crew performance of routine maintenance, while the vessel is underway.

ISSUE

Whether the individual described in the FACTS section is a “passenger” 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. The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 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 trade; and
(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.

Section 4.50 (b) of the Customs and Border Protection (“CBP”) Regulations 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.

In the present case, you state that the individual will be carried onboard to evaluate the crew on their familiarization with the onboard Enterprise Resource Planning (ERP) system, train the crew on new modules in the ERP system, familiarize the crew with new technical department forms, inspect the general condition of the vessel’s machinery, and evaluate crew performance of routine maintenance, while the vessel is underway. 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 onboard to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are onboard because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see HQ 116721 (Sept. 25, 2006)(quoting HQ 101699). Furthermore, the shipboard activities engaged in by such aforementioned individuals while traveling on a non-coastwise-qualified vessel between coastwise ports must be “directly and substantially” related to the operation, navigation, ownership, or business of the vessel itself in order for such individuals to not be considered as passengers under these provisions of law.

In the present case, we find that the proposed activities described in your request would be directly and substantially connected to the operation, navigation, ownership, or business of the vessel and we therefore determine that the subject individual is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of the individual in question would not be in violation of 46 U.S.C. § 55103.

HOLDING

The individual described in the FACTS section above 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 individual would not be in violation of 46 U.S.C. § 55103.

Sincerely,

Lisa L. Burley
Chief/Supervisory Attorney-Advisor
Cargo Security, Carriers and Restricted Merchandise Branch
Office of International Trade, Regulations and Rulings

See 33 C.F.R. § 2.22(a)(2)(2014).
HQ 11672 (Sept. 25, 2006); see HQ 116659 (May 19, 2006) (referencing the “direct and substantial” test).

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