HQ 111585: Vessel Repair; Casualty; Heavy Weather; Modification; 19 U.S.C. 1466; 19 C.F.R. 4.14; M/V GALVESTON BAY; Entry No. 559-1237215-2.

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 111585

                        October 11, 1991

VES-13-18   CO:R:IT:C  111585  JBW

CATEGORY:   Carriers

Deputy Assistant Regional Commissioner
Classification and Value Division
ATTN:  Regional Vessel Repair Liquidation Unit
6 World Trade Center
New York, New York 10048-002980

RE:  Vessel Repair; Casualty; Heavy Weather; Modification; 19
     U.S.C. 1466; 19 C.F.R. 4.14; M/V GALVESTON BAY; Entry No.
     559-1237215-2.

Dear Sir:

     This letter is in response to your memorandum dated March
15, 1991, which forwards for our review the application for
relief filed in conjunction with the above-referenced vessel
repair entry.

FACTS:

     The record reflects that the subject vessel, the M/V
GALVESTON BAY, arrived at the port of Boston, Massachusetts, on
December 26, 1990.  Vessel repair entry, number 559-1237215-2,
was filed on the same day as arrival.  The entry reflects that
foreign shipyard work was performed to the vessel in Rotterdam
between December 16, 1990, and December 17, 1990.  Specifically,
the vessel was required to have repairs made to correct damages
to the pilot hoist ladder, port and starboard gangways, and
intake louvers in the emergency diesel space that resulted from
heavy weather encountered by the vessel on December 4, 1990, and
December 12, 1990.  The vessel also had its existing starboard
side accommodation ladder repaired and extended.

ISSUES:

     (1)  Whether the evidence submitted demonstrates that the
repairs performed to the ship's pilot hoist ladder, port and
starboard gangways, and intake louvers in the emergency diesel
space were necessitated by stress of weather and were necessary
to secure the safety and seaworthiness of the vessel.

     (2)  Whether the repair and extension of the ship's
starboard side accommodation ladder constitute a modification
that is not subject to duty under 19 U.S.C. 1466.

LAW AND ANALYSIS:

     Title 19, United States Code, section 1466, 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 foreign or
coastwise trade, or vessels intended to engage in such trade.
The statute provides for the remission of the above duties in
those instances where good and sufficient evidence is furnished
to show that foreign repairs were compelled by "stress of weather
or other casualty" and were 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).

     Customs Regulations require that certain supporting
evidence be submitted with an application for relief for damages
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) (1991).  The applicant submits invoices and a
statement by the master as to the claimed heavy weather.
However, without the other corroborative evidence--in particular
the vessel's log and the certification by the master that the
repairs were necessary for the safety and seaworthiness of the
vessel--the applicant fails to meet the evidentiary requirements
for heavy weather claims established by regulation.  This claim
must therefore be denied, and the costs related to the repairs of
the pilot hoist ladder, port and starboard gangways, and intake
louvers in the emergency diesel space are therefore dutiable.

     The applicant also seeks relief for the repair and extension
of the ship's starboard side accommodation ladder, which the
applicant claims is a modification.  In its application of the
vessel repair statute, the Customs Service has held that
modifications, alterations, or additions to the hull and fittings
of a vessel are not subject to vessel repair duties.  Over the
course of years, the identification of work constituting
modifications on the one hand and repairs on the other has
evolved from judicial and administrative precedent.  In
considering whether an operation has resulted in a modification
that is not subject to duty, the following elements may be
considered:

     1.   Whether there is a permanent incorporation into the
          hull or superstructure of a vessel (see United States
          v. Admiral Oriental Line, 18 C.C.P.A. 137 (1930)),
          either in a structural sense or as demonstrated by the
          means of attachment so as to be indicative of the
          intent to be permanently incorporated.  This element
          should not be given undue weight in view of the fact
          that vessel components must be welded or otherwise
          "permanently attached" to the ship as a result of
          constant pitching and rolling.  In addition, some
          items, the cost of which is clearly dutiable, interact
          with other vessel components resulting in the need,
          possibly for that purpose alone, for a fixed and stable
          juxtaposition of vessel parts.  It follows that a
          "permanent attachment" takes place that does not
          necessarily involve a modification to the hull and
          fittings.

     2.   Whether in all likelihood an item under consideration
          would remain aboard a vessel during an extended lay-up.

     3.   Whether, if not a first time installation, an item
          under consideration constitutes a new design feature
          and does not merely replace a part, fitting, or
          structure that is performing a similar function.

     4.   Whether an item under consideration provides an
          improvement or enhancement in operation or efficiency
          of the vessel.

     The Customs Service has held that the decision in each case
as to whether an installation constitutes a nondutiable addition
to the hull and fittings of the vessel depends to a great extent
on the detail and accuracy of the drawings and invoice
descriptions of the actual work performed.  Even if an article is
considered to be part of the hull and fittings of a vessel, the
repair of that article, or the replacement of a worn part of the
hull and fittings, is subject to vessel repair duties.

     The question of whether the extensions of the accommodation
ladders are modifications was considered by this office in
Headquarters Ruling Letter 110703, dated January 23, 1990.  This
office determined that the proposed extensions of the
accommodation ladders constitute modifications, with the caveat
that the conclusions reached in the letter were subject to entry
and invoices consistent with the facts upon which those
conclusions were based.  The work described in the D. van de
Wetering B.V. invoice relating to the extension is generally
consistent with the facts of the earlier information letter; we
therefore conclude that such work constitutes a modification to
the vessel that is not subject to duty.  We note, however, that
item 1 of the D. van de Wetering B.V. invoice describes repairs
to the existing starboard accommodation ladder that were made in
preparation to the modification.  We find this cost to be
dutiable.

HOLDING:

     (1)  The applicant failed to meet the evidentiary
requirements to establish that repairs to the pilot hoist ladder,
port and starboard gangways, and intake louvers in the emergency
diesel space were necessitated by stress of weather and were
necessary to secure the safety and seaworthiness of the vessel.
These costs are therefore dutiable.

     (2)  The work to extend of the starboard side accommodation
ladder constitutes a modification to the vessel.  The costs
associated with this work are not subject to duty.  Item 1 of
the D. van de Wetering B.V. invoice describes repairs to the
existing starboard side accommodation ladder that were made in
preparation to the modification.  We find this cost to be
dutiable.


                              Sincerely,



                              B. James Fritz
                              Chief
                              Carrier Rulings Branch