HQ 110914: Vessel repair; cleaning; scavenger air spaces; piston; insufficient evidence; survey Vessel: SEA-LAND ACHIEVER V-10 Vessel Repair Entry No. 514-3003724-5 Date of Arrival: March 31, 1989 Port of Arrival: Newark, New Jersey

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 110914

                         October 4, 1990


VES-13-18-CO:R:P:C  110914 KVS

CATEGORY:  Carriers

Chief
Residual Liquidation and Protest Branch
6 World Trade Center
New York, NY  10048-0954

RE:  Vessel repair; cleaning; scavenger air spaces; piston;
     insufficient evidence; survey
     Vessel:  SEA-LAND ACHIEVER V-10
     Vessel Repair Entry No. 514-3003724-5
     Date of Arrival:  March 31, 1989
     Port of Arrival:  Newark, New Jersey

Dear Sir:

     This is in response to your memorandum of March 2, 1990,
which forwards for our consideration a petition for review filed
in connection with the SEA-LAND ACHIEVER, vessel repair entry no.
514-3003724-5.  Our findings are set forth below.

FACTS:

     The ACHIEVER, an American-flag vessel, underwent foreign
shipyard operations in Algeciras, Spain, on March 9, 1989.  The
work encompassed the cleaning of the vessel scavenger air spaces
as well as work done on the number 2 piston.  Subsequent to these
operations, the vessel arrived at the United States at Newark,
New Jersey, on March 31, 1989 and made formal entry in a timely
manner.

     The petitioner filed an application for relief from vessel
repair duties on May 30, 1989.  The vessel owner was notifed of
Customs decision denying the application in part in a letter
dated October 18, 1989.  The petition for review currently under
consideration was timely filed on November 6, 1989.

ISSUE:

     Whether the foreign shipyard work performed aboard the
subject vessel is non-dutiable pursuant to 19 U.S.C. 1466, where



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the invoice and supporting documentation do not provide a clear
description of the work performed and where no segregation of
charges has been made.

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
engaged, intended to engage, or documented under the laws of the
United States to engage in the foreign or coastwise trade.

     However, the Customs Service held in C.I.E. 51/61 (dated
January 19, 1961) that cleaning operations are not subject to
duty unless performed in preparation for, or as an integral part
of repairs.  The petitioner asserts that Nico Spain, S.A. invoice
#000835 should be held non-dutiable as cleaning within the
meaning of C.I.E. 51/61.

     The scavenger air spaces on Sulzer Diesel Engines are
subject to the accumulation of carbon deposits.  This is a
potential fire hazard and should be maintained according to the
Sulzer maintenance manual specifictions.  Therefore, the removal
of carbon deposits can be viewed as a maintenance function, which
the Customs Service has found to be dutiable.  In T.D. 43322
(dated April 2, 1929), which discussed the dutiability of
maintenance painting, the court stated:

          It is a matter of common knowledge that the
          words "maintain" and "maintenance" are
          frequently used in the sense of keeping a
          thing in good condition by means of
          "repairs."  For example, to maintain a
          highway, ordinarily, means to keep it in a
          proper state of repair.  Obviously,
          "maintenance," whether used in connection
          with a ship or other thing, means to keep or
          preserve in a good condition.  This may, and
          frequently does, involve the making of
          repairs.

     Disposition of the issue currently before us, however, does
not necessitate a finding that the cleaning of the scavenger air
spaces constitutes maintenance.  In describing the work
undertaken aboard the subject vessel, Nico Spain, S.A. invoice
#000835 states only that the work was carried out "as per
enclosed signed copy of time-sheet."  The attached time sheet
indicates that, in addition to the cleaning of the scavenger air
spaces, other work was also completed.  Specifically, the time
sheet carries the entry "Assistance Piston Number 2."  Based upon
this brief notation, we are unable to conclude whether the
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assistance given to piston number 2 encompassed dutiable or non-
dutiable operations.

     However, the Customs Service has held that where the costs
of dutiable and non-dutiable items are not segregated, but are
grouped together, duty will be assessed on the entire cost (see
C.I.E. 565/55, C.I.E. 1325/58 and C.D. 1836).  Since no
segregation of charges has been made, we find the entire amount
listed on Nico Spain invoice #000835 to be dutiable.

     The petitioner also asserts that A.B.S. Invoice #8403917
should be non-dutiable.  In support of its position, the
petitioner asserts that the invoice is non-dutiable because the
A.B.S. inspector's report states that the survey completed was a
"continuous survey" and that had there been any damages, the
A.B.S. report would have so stated.

     The Customs Service has held that where periodic surveys are
undertaken to meet the specific requirements of a classification
society, insurance carrier, etc., the cost of the surveys is not
dutiable even when dutiable repairs are effected as a result
thereof.  However, in the liquidation process Customs should go
beyond the mere labels of "continuous" or "ongoing" before
deciding whether a part of an ongoing maintenance and repair
program labeled "continuous" or "ongoing" is dutiable.
Although, if the survey is to ascertain the extent of damage
sustained, or to ascertain if the work is adequately completed,
the costs are dutiable as part of the repairs which are
accomplished pursuant to the holdings in C.I.E. 429/61 (dated
April 28, 1961), C.S.D. 79-2 (dated October 3, 1978), and C.S.D.
79-277 (dated March 21, 1979).

     In the case under consideration, the survey performed was
not in the nature of a general survey, which we held to be non-
dutiable in C.I.E. 429/61.  Instead, the only item surveyed was
the No. 2 Cylinder, part of which is piston no. 2, the subject of
the "assistance" held dutiable above.

     Given these facts, we are unable to conclude that the survey
was not performed for the purpose of checking the effectiveness
of the dutiable "assistance" rendered and we find the cost to be
dutiable.  Accordingly, the petition for relief is denied.









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HOLDING:

     In the absence of a clear description of the work performed
aboard the subject vessel, and where no segregation of charges is
provided, the entire amount of charges for foreign shipyard
operations is dutiable pursuant to 19 U.S.C. 1466.

                                Sincerely,




                                B. James Fritz
                                Chief
                                Carrier Rulings Branch