HQ 0113036 - Vessel Repair; Protest No. 531-94-100007 Vessel Repair Entry No. C21-0000157-0 & C21-0000158-8 Date of Arrival: March 2, 1993 - United States International Trade Commision Rulings

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HQ 113036

June 1, 1994

VES-13-18-CO:R:IT:C 113036 DEC

CATEGORY: CARRIER

Regional Director
Commercial Operations Division
423 Canal Street
New Orleans, Louisiana 70130-2341

RE: Vessel Repair; Protest No. 531-94-100007 Vessel Repair Entry No. C21-0000157-0 & C21-0000158-8 Date of Arrival: March 2, 1993
Port of Arrival: Beaumont, Texas
Vessel: ITB STRONG AMERICAN V-140

Dear Sir:

This ruling is in response to your memorandum dated February 25, 1994, which forwards a protest from the assessment of vessel repair duties that was filed in connection with the above- referenced vessel.

FACTS:

The protestant states that the integrated tug-barge STRONG AMERICAN encountered heavy swells and rough seas (force eight winds on the Beaufort scale) while it was traveling en route to Bremerhaven, Germany from January 24-26, 1993. The protestant claims that since the damaged area was between the tug and the barge, the extent of the damage was not readily visible while the vessel was at sea. Once in Bremerhaven, it was determined that the repairs were required to insure the safe operation of the integrated tug-barge. The vessel operator has submitted the pertinent invoices, vessel logs, and additional documents in support of its claim that the repairs were required because of the occurrence of a casualty.

ISSUE:

Whether sufficient evidence is provided to substantiate the claim that the repairs were necessitated by weather-related damage and should, therefore, be exempt from vessel repair duties.

LAW AND ANALYSIS:

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

Title 19, United States Code, subsection 1466(d)(1), states that the Secretary of the Treasury is authorized to remit or refund such duties if the owner or master of the vessel provides good and sufficient evidence that the vessel was compelled by stress of weather or other casualty to put into such foreign port to make repairs to secure the safety and seaworthiness of the vessel to enable her to reach her port of destination.

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. See Headquarters Ruling 106159 (Sept. 8, 1983).

Customs regulations require that certain supporting evidence be submitted with a request for relief for damages resulting from stress of weather. This evidence includes photocopies of the relevant parts of the vessel's logs, certifications 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) - (F) (1992).

In Treasury Decision 78-180, Customs established 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). Customs held that winds of force nine 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 (see Rene de Kerchove, International Maritime Dictionary 52 (2nd Ed. 1961)).

Customs finds that the repairs performed on the tug STRONG were due to the heavy swells and rough seas that the STRONG encountered January 24-26, 1993, while the vessel was en route to Bremerhaven, Germany. While the winds were short of the force nine guideline, Customs is satisfied that the invoices and supporting evidence demonstrate that the STRONG suffered a weather-related casualty. Accordingly, the protestant's request for remission of vessel repair duty based on a claim of casualty to the STRONG is granted.

However, the repairs that were performed upon the barge AMERICAN are not entitled to remission based on a claim of casualty. The protestant has not provided sufficient corroborating evidence to support the Chief Mate's affidavit. Headquarter Ruling 111607 (Jun. 26, 1991). The Chief Mate's affidavit does not provide verification of the vessel operator's claim that the repairs to the AMERICAN were due to the stress of weather. The Chief Mate merely states that a board blocked the vent pipe in the number three starboard wing tank which apparently caused damage to the tank top. Since the record does not contain any corroborating evidence in support of the vessel operator's claim that the damage to the AMERICAN was due to a casualty, Customs finds this item dutiable.

HOLDING:

The protestant's claim for remission of vessel repair duty is granted with respect to the tug STRONG based on a finding that the tug suffered a casualty.

The protestant's claim for remission of vessel repair duty is denied with respect to the barge AMERICAN based on insufficient corroborating evidence of a casualty.

Accordingly, this protest is granted, in part, and denied, in part.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, LEXIS, Freedom of Information Act and other public access channels.

Sincerely,

Arthur P. Schifflin

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