HQ 0112736 - Protest No. 1303-4-000122; Baltimore, Maryland, Vessel Repair Entry No. 1303-82-101299-2, dated May 18, 1992; M/T MONA, Voyage M202; casualty; 19 U.S.C. 1466(d)(1); 19 CFR 4.14 - United States International Trade Commision Rulings

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HQ 112736

October 4, 1993

VES-13-18 CO:R:IT:C 112736 BEW

CATEGORY: CARRIER

Chief, Residual Liquidation and Protest Branch U.S. Customs Service
6 World Trade Center
New York, New York 10048-0945

RE: Protest No. 1303-4-000122; Baltimore, Maryland, Vessel Repair Entry No. 1303-82-101299-2, dated May 18, 1992; M/T MONA, Voyage M202; casualty; 19 U.S.C. 1466(d)(1); 19 CFR 4.14

Dear Sir:

This is in response to your transmittal of May 14, 1993, that forwards a memorandum dated February 19, 1986, which transmitted protest No. 1303-4-000122, concerning vessel repair entry No. 1303-82-1010299-2, relating to the M/T/ MONA, Voyage M202. We have reviewed our records and we find no record of receiving this protest. Therefore, it appears that a ruling was never issued on this protest. Our findings are set forth below.

FACTS:

The M/T MONA is an United States-flag vessel owned by Steamship Company Mona, Inc. The record shows that the subject vessel arrived in the port of Baltimore, Maryland, on May 18, 1982, after having undergone repairs in the ports of Ponta Delgada, Azores, on February 16, 1982, Port Said, Egypt, on March 15, 1982, and Karachi, Pakistan, on April 11, 1982. An application for relief was not filed. On August 22, 1983, a petition for relief was filed alleging that the subject repairs were necessary due to "casualty". Your office treated the petition as an application and on December 14, 1983, denied the application on the basis that it was untimely filed. The entry was liquidated on April 6, 1984, and a protest was timely filed on April 14, 1984.
The protestant claims that the subject invoices relate to the repairs necessary because of a casualty. It claims that the repairs were of an emergency nature and necessary for the safe operation of the vessel. The documents show that repairs were made to the evaporator motor, auxiliary generator, the main motor exciter and the force draft fan bearing. The protestant has submitted the vessel engineer's log book and a statement from the Chief, Engineer in support of it contentions. The failure of the main motor was described as a "burning."

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 that 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 that, 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 "secure the safety and seaworthiness of the vessel to enable her to reach her port of destination" (19 U.S.C. 1466(d)(1)). 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 from duties on repairs 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.

We have reviewed the invoices submitted with the protest. It is clear from the evidence that the vessel was in need of repairs due to a breakdown of the vessel's main motor. Further, it is clear from the evidence that the vessel was in need of repairs to secure her safety and seaworthiness, however, the evidence is insufficient to show what actually caused the breakdown of the subject items. Absent clear proof of an identifiable event to show an unexpected force or violence, such as fire, explosion, or collision resulting in damage, such cost of repairs is not remissible (see C.I.E. 1826/58). The documentation submitted is insufficient to support a finding of a casualty as provided in section 1466(d)(1). Despite the description of the engine failure as a "burning" by the protestant, it has become quite clear that the damage was due not to an identifiable event of some sort which caused the damage but to wear and tear. Pursuant to C.I.E. 919/60 remission of duty assessed on the cost or repairs is not warranted under section 1466 where the repairs are maintenance in nature.

HOLDING:

The evidence presented is insufficient to substantiate that the subject repairs were necessitated by a casualty. The foreign work for which the protestant seeks remission is therefore dutiable under 19 U.S.C. 1466. The district director should deny the protest in full. A copy of this decision should be attached to the Customs Form 19 and forwarded to the protestant as part of the notice of action on the protest.

Sincerely,

Arthur P. Schifflin

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