HQ 0110883 - Protest No. 27049-001015, PRESIDENT KENNEDY V-1 - United States International Trade Commision Rulings

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HQ 110883

July 9, 1990

VES-13-18-CO:R:P:C 110883 KVS

Category: CARRIER

Chief, Technical Branch
Pacific Region
1 World Trade Center
Suite 705
Long Beach, CA 90831

RE: Protest No. 27049-001015, PRESIDENT KENNEDY V-1

Dear Sir:

Your memorandum dated February 26, 1990, forwarded a protest regarding vessel repair entry no. C27-0034954-4. Our findings are set forth below.

FACTS:

The PRESIDENT KENNEDY is one of three C-10 or "Panamax" vessels (so named because their configurations include a beam too wide to transit the Panama Canal) built for American President Lines, Ltd. (APL) by Howaldstwerke-Deutsche Werft AG (HDW) in Kiel, West Germany. The subject vessel was delivered to APL on July 15, 1988, and had work performed shortly thereafter in foreign shipyards. Specifically, the Satcom antenna Saturn-35 was repaired on two occasions, the HF transceiver was repaired, engine equipment was checked, a bridge base station radio was installed, and repairs were made to the SNA.91 radio. Subsequent to the completion of the aforementioned work, the subject vessel arrived in the United States at San Pedro, California, on August 22, 1988.

A vessel repair entry covering the voyage in question was filed on August 22, 1989. APL's letter of March 3, 1989, incorporates by reference a letter dated December 13, 1988, from Mr. Robert E. Weeks, Marine Customs Coordinator, APL, to the Chief, Liquidation Branch, U.S. Customs Service, San Francisco, which advances the arguments that certain foreign work performed on the PRESIDENT KENNEDY was pursuant to a new vessel construction warranty which extended one year from the date of
delivery and therefore was not subject to duty. In support of this claim a copy of the construction contract (including the warranty provision) was submitted. However, no application for relief was filed to cover the particular entry in question. In view of the failure to submit an application, the entry was forwarded for liquidation, which took place on December 2, 1988.

A protest (with copies of the invoices and job control forms) was filed on March 14, 1989, 102 days after the date of liquidation.

ISSUE:

Whether a protest requesting relief from vessel repair duties may be considered by Customs on its merits when the protest was filed 102 days after the date of liquidation.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466, provides, in pertinent part, that the equipment purchased for and the repairs made in a foreign country upon a vessel documented under the laws of the United States to engage in the foreign or coasting trade or intended to be employed in those trades shall be subject to the payment of an ad valorem duty of 50 percent of the cost of that equipment and those repairs. The Customs Regulations issued under section 1466 are found in section 4.14, Customs Regulations (19 CFR 4.14).

Title 19, United States Code, section 1514, provides, in pertinent part, for the filing of a protest within 90 days after the notice of liquidation.

In Penrod Drilling Co. v. United States, Slip Op. 89-168, decided December 13, 1989 (Customs Bulletin dated January 3, 1990, p. 37), the Court of International Trade considered the time limits pertaining to vessel repair protests. The Court ruled that a protest filed 8 days after the 90 day statutory period and a protest sent by overnight express on the 89th day of the statutory period but received by Customs on the 91st day were properly denied as untimely filed.

In this case, the protest for entry C27-0034954 was not filed until 12 days after the 90 day statutory period. On the basis of Penrod, supra, the protest must be denied.

HOLDING:

A protest requesting relief from vessel repair duties may not be considered by Customs on its merits when it was filed 102 days after the date of liquidation.

Accordingly, the protest is denied.

Sincerely,

B. James Fritz

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