HQ 0111234 - Petition for Review on Seattle, Washington, Vessel Repair Entry No. 110-0103957-4 dated November 30, 1989, vessel PRESIDENT HARRISON. Casualty; 19 U.S.C. 1466(d) - United States International Trade Commision Rulings

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HQ 111234

May 2, 1991

VES-13-18 CO:R:IT:C 111234 BEW

CATEGORY: CARRIER

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

RE: Petition for Review on Seattle, Washington, Vessel Repair Entry No. 110-0103957-4 dated November 30, 1989, vessel PRESIDENT HARRISON. Casualty; 19 U.S.C. 1466(d)

Dear Sir:

This is in reference to a memorandum from your office which forwards a petition for relief filed by American President Lines on a partial denial of an application for relief for duties assessed on repairs made to the vessel PRESIDENT HARRISON.

FACTS:

The record reflects that the subject vessel arrived at the port of Seattle, Washington, on November 25, 1989. Vessel repair entry number 110-0103957-4, Customs Form 226, was filed on November 30, 1989, indicating foreign repairs to the ship's starboard gangway and her diesel generator power pack container performed by The Yokohama Engineering Works, Ltd., in Yokohama, Japan.

The petitioner's request for review centers on the cost for damage to the power pac and the starboard gangway alleged to be caused by a "casualty" suffered by the vessel.

American President Lines filed an application for relief on February 13, 1990, following a timely filed request for extension of time. The application asserts that damages to the gangway and power pack resulted from heavy weather. The documentation submitted indicates that the damages occurred between midnight and 6:00 A.M. on October 31, 1989. During this time, the damage report places the wind speed at 45 knots and the height of sea at 25 feet (7.6 meters). The damage report
for the gangway describes a "boarding sea." No documentation was submitted relating to the safety and seaworthiness of the vessel.

In our decision 110931 JBW, dated June 7, 1990, we ruled:

The evidence appears sufficient to support the claim that damages, and consequent repairs, to the gangway and the power pack resulted from the weather conditions described.

As noted above, to claim remission because of stress of weather, the applicant must demonstrate not only that the foreign repairs were compelled by stress of weather, but also that the repairs were necessary for the safety and seaworthiness of the vessel. Such evidence may take the form of a certificate furnished by the master as required by the regulation. The record in this case does not contain certification or any other statement by the master that the repairs were necessary for the safety and seaworthiness of the vessel to enable her to reach her United States port of destination. The application for relief, therefore, must be denied.

The petitioner has submitted additional evidence and an explanation of the damage to the vessel and the safety and seaworthiness of the vessel subsequent to the casualty.

ISSUES:

1. Whether sufficient evidence is presented to establish that the subject repairs were necessitated by a "casualty" which is remissible under the vessel repair statute (19 U.S.C. 1466).

LAW AND ANALYSIS:

Title 19, United States Code, section 1466(a), provides in pertinent part for payment of duty in the amount of 50 percent ad valorem on the cost of foreign repairs to vessels documented under the laws of the United States to engage in the foreign or coastwise trade, or vessels intended to be employed in such trade.

Paragraph (1), subsection (d) of section 1466 provides that duty may also be remitted if good and sufficient evidence is furnished establishing that the vessel was compelled by stress of weather or other casualty to put into a foreign port to make repairs to secure the safety and seaworthiness of the vessel to enable her to reach her port of destination. It is Customs position that "port of destination" means a port in the United States."

The statute thus sets a three-part test which must be met in order to qualify for remission under the subsection, these being:

1. The establishment of a casualty occurrence.

2. The establishment of unsafe and unseaworthy conditions.

3. The inability to reach the port of destination without obtaining foreign repairs.

The term "casualty" as it is used in the statute, has been interpreted as something which, like stress of weather, comes with unexpected force or violence, such as fire, explosion, or collision (Dollar Steamship Lines, Inc. v. United States, 5 Cust. Ct. 28-29, C.D. 362 (1940)). In this sense, a "casualty" arises from an identifiable event of some sort. In the absence of evidence of such a casualty event, we must consider the repair to have been necessitated by normal wear and tear (ruling letter 106159, September 8, 1983).

Customs Regulations require that certain supporting evidence be submitted with an application for relief for damages resulting from stress of weather. This evidence includes photocopies of the relevant parts of the vessel's logs, certification of any claimed casualty by the master or other responsible vessel officer with personal knowledge of the facts, and a certification by the master that the repairs were necessary for the safety and seaworthiness of the vessel to enable her to reach her port of destination in the United States. 19 C.F.R.

In Treasury Decision 78-180, we set out guidelines to be used when relief is requested on the basis that the vessel encountered high winds. T.D. 78-180, 12 Cust. B. & Dec. 382 (1978). We held that winds of force 9 on the Beaufort Scale, a numerical scale rating winds according to ascending velocity from zero (calm) to twelve (hurricane), accompanied by a reasonable description of the conditions and verified as required in the regulations, raise a presumption that damages caused were due to stress of weather. Id. The damage reports filed by the ship's master indicate winds of 45 knots, which represent a force 9 wind. R. de Kerchove, International Maritime Dictionary 52 (2d ed. 1961). Moreover, these reports describe "boarding seas" with heights of 25 feet.

It is clear from the evidence that damage was caused by severe weather conditions and that the vessel was in need of repairs to secure her safety and seaworthiness. Accordingly, the petition is granted

HOLDING:

The evidence presented is sufficient to prove that the foreign repairs performed on the subject vessel were necessitated by a casualty occurrence, thus warranting remission pursuant to 19 U.S.C. 1466. The petition is granted as to the casualty.

Sincerely,

Stuart P. Seidel

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