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HQ 113235





March 20, 1995

VES 13-18 CO:R:IT:C 113235 BEW

CATEGORY: CARRIER

Port Director
United States Custom Service
Vessel Repair Liquidation Unit, Room 303
423 Canal Street
New Orleans, Louisiana 70130-2341

RE: Protest No. 1801-94-100035, Tampa Bay, Florida, Vessel Repair Entry No. C18-0019737-3, dated January 20, 1994; TUG MARLIN, casualty; 19 U.S.C. 1466(d)(1); 19 C.F.R. 4.14

Dear Sir:

This is in response to your transmittal of September 19, 1994, which transmitted protest No. 1303-4-000122, concerning vessel repair entry No. C 18-00019737-3, relating to the TUG MARLIN. Our findings are set forth below.

FACTS:

The TUG MARLIN is an United States-flag vessel owned by Penn Maritime, Inc. The record shows that the subject vessel arrived in the port of Port Manatee, Tampa, Florida, on January 1, 1994, after having undergone repairs in the port of Tampico, Mexico, during the period January 5, through January 7, 1994. We note that neither an application nor a petition for relief was filed. The entry was liquidated on July 15, 1994, and a protest was timely filed on August 22, 1994, in Tampa, Florida.

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 bow ram ( hydraulic jack bow of the tug). The Protestant has submitted the vessel daily log book and a statement from the Chief Engineer in support of its contentions. The protestant claims that the repairs were of an emergency nature and would have prevented the vessel from safely proceeding to the United States or to sea had they not been performed. It further claims that the unit in question operates as an integrated vessel under a Bludworth locking device. The bow ram that was repaired is the key to holding the tug to the barge. 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), (19 U.S.C. 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. §§4.14(d)(1)(iii)(D)-(F)).

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 ram bow. 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 repair work performed, 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. Accordingly, the protest is denied.

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.

In accordance with §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 new billing (the equivalent of the reliquidation of an entry) in accordance with the decision must be accomplished prior to 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, Freedom of Information Act and other public Access channels.

Sincerely,

Arthur P. Schifflin
Chief

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