HQ 0112228 - Vessel Repair Entry No. 718-0000418-7 dated May 6, 1992; GREEN LAKE, V-32; Application; casualty; heavy weather; evidence - United States International Trade Commision Rulings

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HQ 112228

September 24, 1992

VES-13-18 CO:R:IT:C 112228 BEW

CATEGORY: CARRIER

Deputy Regional Director
Commercial Operations
Pacific Region
One World Trade Center
Long Beach, California 90831-0700

RE: Vessel Repair Entry No. 718-0000418-7 dated May 6, 1992; GREEN LAKE, V-32; Application; casualty; heavy weather; evidence

Dear Sir:

This is in reference to your memorandum of May 6, 1992, which transmitted an application for relief from duties filed by Central Gulf Lines, Inc., in relation to the above-referenced vessel repair entry, dated February 28, 1992. The entry and the application were timely filed. The vessel arrived at the port of Portland, Oregon, on February 26, 1992.

FACTS:

The GREEN LAKE is a U.S.-flag vessel owned by Central Gulf Lines, Inc. The record shows that the shipyard work in question was performed on the subject vessel at the Maritime Engineering a.s, in Toyohashi, Japan, during the period of February 11 through February 14, 1992.

The entire vessel repair entry involves a potential duty of $31,096.18.

The applicant requests review for remission of duty on the following items:

Item # Vendor

03 Maritime Engineering - overhead crane

04 Maritime Engineering - cylinder liner

10 Maritime Engineering - impeller/seals

The application states that the vessel encountered severe weather conditions while enroute to Toyohashi, Japan, resulting in heavy weather damage to both the overhead crane and freshwater generator pump. It states that the overhead crane repair became necessary immediately to ensure safe placement of the main engine cylinder liner and other essential parts in the vessel's main engine room. It states that the cylinder liner was placed on board timely to avoid a potentially dangerous situation should another casualty occur. It states that the fresh water generator pump began to fail during the rough weather encountered at sea. This equipment is responsible for the purification of water, necessary for safe use and sanitary crew consumption. The applicant has also submitted copies of relevant pages from the ship's log containing the sea conditions on February 4, 5, and 7, 1992, and an undated page of the ship's log.

ISSUE:

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 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, this 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, spontaneous explosion of such dimensions as to be immediately obvious to ship's personnel, 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).

In addition, if the above requirements are satisfied by evidence, the remission is restricted to the cost of the minimal repairs necessary to enable the vessel to reach her port of destination. Repair costs beyond that minimal amount are not subject to remission.

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. ?4.14(d)(1)(iii)(D)-

Treasury Decision 78-180, sets 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)). It was held that evidence of winds of force 9 on the Beaufort Scale, a numerical scale rating winds according to ascending velocity from zero (calm) to twelve (hurricane), verified as required in the regulations, and accompanied by a reasonable description of the conditions, raise a presumption that severe weather conditions caused the damage. (See also Rene de Kerchove, International Maritime Dictionary 52 (2nd Ed. 1961).

The applicant claims that the invoices submitted relate to the repairs necessary because of a casualty.

The file contains copies of internal documents relating to storm damage. These documents amount to reports of the presence of damage, but provide no evidence as to how the damage occurred. The evidence is insufficient to support a finding that the vessel encountered heavy weather conditions during the period of February 4 through February 11, 1992. In addition, the evidence is insufficient to show what actually caused the alleged damage which we presume occurred prior to February 11 through February 14, 1992, the dates on which the subject foreign repair work was performed. Absent clear proof of an identifiable event to show the cause of the alleged damage, the cost of repairs is not remissible (see C.I.E. 1826/58).

HOLDING:

The evidence presented is insufficient to substantiate that the subject repairs were necessitated by a casualty. The foreign work for which the applicant seeks relief is dutiable under 19 U.S.C. 1466.

Sincerely,

B. James Fritz
Chief

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