HQ 0110518 - Protest No. 27048-002893; Vessel Repair Entry No. C27- 0021080-3 dated November 16, 1986; Date of Arrival: November 16, 1986; Port of Arrival: Long Beach, California; Vessel Name: M/V SEALAND INNOVATOR; Voyage No. 67 - United States International Trade Commision Rulings

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HQ 110518

June 18, 1990

VES-13-18 CO:R:P:C 110518 BEW

CATEGORY: CARRIER

Chief, Technical Branch
Pacific Region
One World Trade Center
Long Beach, California 90831

RE: Protest No. 27048-002893; Vessel Repair Entry No. C27- 0021080-3 dated November 16, 1986; Date of Arrival: November 16, 1986; Port of Arrival: Long Beach, California; Vessel Name: M/V SEALAND INNOVATOR; Voyage No. 67

Dear Sir:

Reference is made to the above-captioned protest seeking reliquidation on the basis of foreign shipyard work having been performed pursuant to a warranty recognizable under the decision of the Court of International Trade in the case of Sea-Land Service, Inc. v. United States, 683 F. Supp. 1404 (1988). The notice of liquidation is dated March 25, 1988. The protest dated July 12, 1988, was filed July 15, 1988.

FACTS:

The vessel was taken abroad for the purpose of having a mid- body addition inserted in order to lengthen the vessel by some one-hundred (100) feet. This was accomplished and the vessel was redelivered to Sea-Land by the shipyard on June 3, 1985. The work was performed under a construction contract which was identical for twelve (12) Sea-Land vessels which were modified at nearly the same time. The standard contract contained a warranty clause (Article XI WARRANTY OF QUALITY), containing two time elements, which read as follows:

(b) Guarantee Period. The guarantee of the contractor shall expire:

(i) for defects in design, material or workmanship which the owner might discover by the exercise of due diligence: twelve (12) months from the date of redelivery of the CONVERTED VESSEL.

(ii) for defect in material or workmanship which could not be discovered by the exercise of the owner`s due diligence (i. e. , latent defects): twenty-four (24) months from the date of redelivery of the CONVERTED VESSEL.
The warranty provisions are conditioned upon timely written notice being given by the owner to the shipyard within 20 days following the expiration of the warranty period.

ISSUE:

Whether the court-established elements for filing a timely protest are present in this case, as detailed in the case of Penrod Drilling Co., v. United States, 727 F.Supp. 1463 (CIT 1989).

LAW AND ANALYSIS:

In the case of Penrod Drilling Co., v. United States, 727 F.Supp. 1463 (CIT 1989), the Court addressed the issue of whether a protest of duties was timely filed. The Court held that the importer was on notice of liquidation of entries, for purpose of deciding whether protest was timely filed, on the date that the notice of liquidation was posted in the customhouse, and not on the date of its receipt of notice in Customs Service Bill (19 U.S.C. 1514(c)(2)(A). The court stated that the importer bears the burden of examining all notices posted in the customhouse to determine whether its goods have been liquidated, and to protest timely. It stated the importer had an obligation to file timely protest of duties and that its obligation under the statute did not end upon delivery of the requisite documents to a mail carrier service within sufficient time to reach Customs. The Court further stated that Bulletin notice is a statutorily mandated notice, and absent evidence to the contrary there is a presumption of regularity which attaches to government acts. "It is presumed that public officials perform their duties in a manner consistent with law...." Commonwealth Oil Refining Co. v. United States, 60 CCPA 162, 167, C.A.D. 1105, 480 F.2d 1352, 1357 (1973).

Following liquidation, a protest may be filed against the decision to treat an item or a repair as dutiable under 19 U.S.C. 1466(a) (19 C.F.R. 4.14). Under the provisions of title 19 United States Code, section 1514, such protest of duties shall be filed within 90 days from the notice of liquidation.

In the subject case, the entry was liquidated on March 25, 1988. Customs received the protest on July 15, 1988, the one- hundredth tenth day (110th) day after the notice of liquidation. The statute plainly requires filing within ninety days. Therefore, the protest is untimely and the relief requested is denied.

HOLDING:

The date of liquidation generally is the bulletin notice of liquidation, and a timely protest of duties must be filed with the Customs service within 90 days of this date. Accordingly, the protest is untimely filed.

Sincerely,

Stuart P. Seidell

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