VES-3-02-OT:RR:BSTC:CCI H052998 JLB
CATEGORY: Carriers
Mr. Brett Walker
Inchcape Shipping Services
9000 Regency Square Blvd., Suite 206
Jacksonville, Florida 32211
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)
Dear Mr. Walker:
This letter is in response to your correspondence dated February 26, 2009, in which you request a ruling on whether the coastwise transportation of the individual mentioned therein aboard the ANDROMEDA LEADER 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 ANDROMEDA LEADER (“the vessel”). The individual will embark on March 5, 2009 at Jacksonville, Florida and will disembark at the port of Newark, New Jersey on or about March 9, 2009. As part of a University of Miami, Rosenstiel School of Marine and Atmospheric Science (“RSMAS”) research project, an infrared sea surface skin temperature radiometer (“ISAR”) will be installed on volunteer vessels provided by NYK Lines. The project is funded by the National Aeronautics and Space Administration(“NASA”) and the National Oceanographic and Atmospheric Administration (“NOAA”) to provide accurate sea surface temperature data to compare and calibrate satellite instruments that are making identical measurements from space. The purpose of the project is to provide more accurate marine weather and ocean forecasts. Two individuals, a student scientist and a technician, will board the vessel in Jacksonville to install such a system on the upper deck of the vessel with the technician disembarking before the voyage. The subject individual, a student scientist, will then travel aboard the vessel to monitor the newly installed system.
ISSUE
Whether the use of a non-coastwise-qualified vessel to transport the subject individual and equipment as described above is in violation of the coastwise laws?
LAW AND ANALYSIS
The Jones Act, former 46 U.S.C. App. § 883 recodified as 46 U.S.C.
§ 55102, pursuant to P.L. 109-304 (October 6, 2006), states that “a vessel may not provide any part of the transportation of merchandise by water, or by land and water, between points in the United States to which the coastwise laws apply, either directly or via a foreign port” unless the vessel was built in and documented under the laws of the United States and owned by persons who are citizens of the United States. (See also 19 C.F.R. §§ 4.80, 4.80b). 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.
Pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” However, merchandise does not include the equipment of a vessel so long as it is used by that vessel. Such articles have been defined as those which are “…necessary and appropriate for the navigation, operation or maintenance of the vessel and for the comfort and safety of the persons on board.” See Treasury Decision (“T.D.”) 49815(4), March 13, 1939. U.S. Customs and Border Protection (“CBP”) Regulations promulgated under the authority of 46 U.S.C. § 55102 provide that a coastwise transportation of merchandise takes place when merchandise laden at a coastwise point is unladen at another coastwise point, regardless of origin or ultimate destination. See 19 C.F.R. § 4.80b(a).
You state that the ISAR is transported aboard the volunteer vessel for the purpose of measuring the sea surface temperature data to compare and calibrate satellite instruments that are making identical measurements from space. Insofar as such a system is not necessary for the navigation, operation, or business of the vessel itself, it is not considered to be vessel equipment, thus, it constitutes merchandise pursuant to 19 U.S.C. § 1401(c). See Headquarters Ruling Letter H020051, dated December 4, 2007 (scientific equipment carried aboard a vessel as part of the NOAA’s Volunteer Observing Ship program to collect data about marine forecasting, climate modeling and safety at sea does not constitute vessel equipment). Accordingly, the coastwise transportation of such a system would be in violation of 46 U.S.C. § 55102.
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). 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, 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.
Under the facts presented, the subject individual would be traveling aboard the non-coastwise-qualified vessel to monitor a newly installed system that measures ocean temperature aboard the volunteer vessel. Specifically, the research project involves collecting data that is used to provide more accurate marine weather and ocean forecasts. These activities do not connect the individual directly and substantially with the business, operation, or navigation of the vessel itself. Rather, it appears that the research activity is connected to the operation of all commercial shipping vessels. See Headquarters Ruling Letter H015735, dated August 17, 2007 (the transportation of individuals conducting environmental research by collecting water samples along commercial shipping lanes to determine whether vessels have conducted proper mid-ocean ballast water exchanges is in violation of 46 U.S.C. § 55103). To the extent that the subject individual would not be engaging in any shipboard activities while traveling on the non-coastwise-qualified vessel between coastwise ports, that would be “directly and substantially” connected to the operation or business of the vessel itself, the individual would 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 would be in violation of 46 U.S.C. § 55103.
HOLDING
The system transported aboard the vessel is merchandise within the meaning of 19 U.S.C. § 1401(c). Consequently, the coastwise transportation of such a system is in violation of 46 U.S.C. § 55102. The subject individual is 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 in violation of 46 U.S.C. § 55103.
Sincerely,
Glen E. Vereb, Chief
Cargo Security, Carriers and Immigration Branch