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HQ H017706




September 26, 2007

VES-3-02-RR:BSTC:CCI H017706 CK

CATEGORY: CARRIER

Scott C. Hansler
Marine Operations Manager
Moran Shipping Agencies, Inc.
88 Black Falcon Avenue, Suite 275
Boston, MA 02210

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

Dear Mr. Hansler:

In your email letter of September 26, 2007, you requested that two technicians be allowed to travel aboard Holland America Line’s non-coastwise-qualified vessel MS VEENDAM on a roundtrip voyage from Boston, MA to New York, NY back to Boston, MA. Our ruling on your request follows.

FACTS:

You requested that two technicians be allowed to travel aboard the non-coastwise-qualified MS VEEDAM on a voyage from Boston, MA to New York, NY, back to Boston, MA. These two technicians would embark September 27, 2007 at Boston, MA transit with the vessel to New London, Ct. (September 28, 2007) and thence to New York, NY (September 29, 2007) where the ship will debark all paying passengers and embark new paying passengers. The ship will then transit to Newport RI (September 30, 2007) and to Boston on October 1, 2007 for a port of call where the technicians will debark the vessel. The two technicians will board the vessel to repair a damaged propulsion transformer.

ISSUE:

Whether the technicians 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).

In the present case, the two technicians will board MS VEENDAM to repair a damaged propulsion transformer on board. These technicians are directly and substantially connected to the operation of the vessel and are not passengers for purposes of 46 U.S.C. §55103.

HOLDING:

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

Sincerely,

Glen E. Vereb

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