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HQ 115057





June 27, 2000

VES-11-10 RR:IT:EC 115057 RSD

CATEGORY: CARRIER

Port Director
U.S. Customs Service
40 South Gay Street
Baltimore, Maryland 21202

RE: Application for Refund of Special Tonnage Tax & Light Money for the Maltese Vessel M/V TEVAL; Certificate of Registry; 46 App. U.S.C. 121 & 128; 19 CFR § 4.20-4.24

Dear Sir or Madam:

This is in reference to your memorandum dated May 22, 2000, forwarding a petition dated May 11, 2000, from John Sippel, counsel for Thomas Miller (Americas) Inc., agents for Evergreen America Corporation, Charterers of the M/V TEVAL. The petition requests a refund of the special tonnage tax and light money assessed for failure to produce a valid Certificate of Registry at the time of the M/V TEVAL’s entry at the port of Baltimore.

FACTS:

The M/V TEVAL is a container vessel owned by TEVAL Shipping Company, Ltd. of Valetta, Malta. On August 10, 1999, the TEVAL arrived at the port of Baltimore. At that time, the vessel was chartered to Evergreen America Corporation (“Evergreen Lines”). On October 1, 1997, the Malta Maritime Authority issued a certificate of Malta Registry for the TEVAL, which was valid through July 31, 1998. A renewal certificate valid through July 31, 1999, was issued on July 9, 1998.

During the early morning hours of August 10, 1999, the TEVAL arrived at the port of Newark, New Jersey. At that time, according to a document from the representatives of the Phax Services Co. Ltd. a renewal certificate of a Malta Registry for the TEVAL was being processed for issuance. The U.S. Customs Officer in Newark allowed the TEVAL to sail to Baltimore without assessing any special tonnage tax or light money charges. On the same date, a Renewal of Certificate Malta Registry valid through July 31, 2000 was issued. The Teval arrived in Baltimore on August 11, 1999. After boarding the vessel, because Maltese Registry was aboard the vessel, the Customs officer in Baltimore assessed $15,284.00 in special tonnage tax and light money

Evergreen submitted an application for a refund of the special tonnage tax and light money to the Customs officer in Baltimore. On April 11, 2000, your office denied the application for refund of the special tonnage tax and light money assessed on the TEVAL.

ISSUE:

May the Customs Service refund special tonnage tax and light money assessed for failure to produce a valid vessel registry at the time of entry, when timely application for refund is made and the applicant duly submits a vessel registry valid for the date of the entry of the vessel?

LAW AND ANALYSIS:

United States law assesses special tonnage tax and light money in the amount of one dollar per ton on vessels not of the United States. 46 App. U.S.C. §§ 121 & 128. Pursuant to 46 App. U.S.C. § 141, upon satisfactory proof that no discriminatory duties of tonnage or imposts are imposed in the ports of another nation upon United States vessels, “...foreign discriminating duties of tonnage and impost within the United States are suspended and discontinued, so far as respects the vessels of such foreign nation....” The nations for which such proof has been supplied are listed in section 4.22 of the Customs Regulations. Malta is one of those nations.

The regulations pertaining to tonnage tax, special tonnage tax, and light money are found in sections 4.20 to 4.24 of the Customs Regulations. The procedures and requirements for obtaining a refund of tonnage taxes and light money are in section 4.24. Under that section, an application for refund must be made within one year from the date of payment. Paragraph (e) of section 4.24 provides that such an application must include:

...a certificate by the owner or ... agent that payment of tonnage tax at the applicable rate has been or will be made for each entry of the vessel on a voyage on which that rate is applicable before the end of the current tonnage year, exclusive of any payment which has been refunded or which may be refunded as a result of such application.

Only the original of a vessel registry, tonnage certificate, or official amendment or endorsement of either shall be accepted by Customs at the time of arrival of the vessel for the purpose of establishing the nationality and tonnage of the vessel, unless the vessel is a vessel of Lebanon (Customs Directive 3100-03, September 22, 1986). When the owner or agent of a vessel that has been assessed special tonnage tax and light money timely submits the original vessel document to the port director of the port where the assessment was made, the special tonnage tax and light money may be refunded. If it is impractical, infeasible, or inconvenient for the vessel owner or agent to submit the original document to Customs, the vessel owner or agent may submit to Customs a photostatic copy of the original document, signed and certified to be a true copy by an appropriate official of the government of registry of the vessel.

In this case, the vessel agent has timely applied for a refund of the special tonnage tax and light money levied on the M/V TEVAL with the port director in Baltimore. In support of its request, the agent has provided Customs with a Certificate of the Maltese Registry, which was issued on August 10, 1999, a day before the vessel entered the port of Baltimore. A photocopy of the certificate of Malta Registry, which is date stamped “10th August 1999”, is contained in the record. As pointed out above, Customs has determined that the vessel owner or agent may submit to Customs a photostatic copy of the original document, signed and certified to be a true copy by an appropriate official of the government of registry of the vessel. Accordingly, we find that this evidence satisfactorily establishes that the M/V TEVAL was a vessel of Malta when it entered at Newark and Baltimore on August 10 and 11, 1999.

Although your decision denying a refund of the special tonnage tax and light money cites 19 U.S.C. 1436 and 19 CFR 4.22, we believe that those provisions, which relate to presenting false or forged documents, are not applicable to this case. There is no indication that the master presented false or forged documents when the vessel made entry. Therefore, because it has been established that the M/V TEVAL was a vessel of Malta upon its entry at the port of Baltimore on August 11, 1999, and because Malta is a country included on the list of countries whose vessels are exempt from the payment of special tonnage tax and light money under section 4.22 Customs Regulations (19 CFR 4.22), we conclude that the special tonnage taxes and light money assessed against the TEVAL should be refunded.

HOLDING:

Special tonnage tax and light money assessed because the vessel under consideration did not present a valid document of registry when it was entered may be refunded on the basis of the applicant’s submission of a
photocopy of the original Certificate of Registry for the vessel signed by the Registrar of Maltese Ships to the Port Director of Customs in Baltimore.

Sincerely,


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