HQ 112364: Vessel Repair; Los Angeles Vessel Repair Entry No. C27- 0067801-1; dated May 3, 1992; M/V PRESIDENT WASHINGTON; Voyage 88; Application; Casualty; Heavy Weather; Survey; Evidence; Maintenance; Cleaning; Air Scavenger Spaces; 19 U.S.C 1446

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 112364

                        February 24, 1993

VES-13-18 CO:R:IT:C  112364 BEW

CATEGORY:  Carriers

Deputy Regional Director
Commercial Operations
Pacific Region
One World Trade Center
Long Beach, California 90831-0700

RE:  Vessel Repair; Los Angeles Vessel Repair Entry No. C27-
     0067801-1; dated May 3, 1992; M/V PRESIDENT WASHINGTON;
     Voyage 88; Application; Casualty; Heavy Weather; Survey;
     Evidence; Maintenance; Cleaning; Air Scavenger Spaces; 19
     U.S.C 1446

Dear Sir:

     This is in reference to your memorandum of June 25, 1992,
which transmitted an application for relief from duties filed by
American President Lines, Ltd., in relation to the above-
referenced vessel repair entry, dated May 3, 1992.  The entry and
the application were timely filed.  The vessel arrived at the
port of Los Angeles on May 2, 1992.

FACTS:
          
     The M/V PRESIDENT WASHINGTON is a U.S.-flag vessel owned by 
American President Lines, Ltd.  The record shows that the
shipyard work in question was performed on the subject vessel in
Kaohsiung, R.O.C., during the period of February 14 through
February 16, 1992.

     The applicant requests review for remission of duty on the
following items:

     Item #     JCF#                 Vendor
     
     02        WA088-139     Hong Yang Marine (Cleaning of Air   
                             Scavenger Spaces)
     04        WA088-141     Hong Yang Marine
     06        WAO88-144     China Shipbuilding
     07        WAO88-143     American Bureau of Shipbuilding
                             Report No. KS 7522
      The applicant states that the vessel encountered severe
weather conditions while enroute to Guam resulting in heavy
weather damage to the AFT frame 87 port side.  It claims that
foreign repairs became necessary immediately to ensure the safety
and seaworthiness of the vessel.  The applicant has also
submitted copies of relevant pages from the ship's log containing
the sea conditions on January 31, 1992, and a damage report dated
February 2, 1992.  A note of protest was filed on February 10,
1992, when the vessel arrived at Apra, Guam.  The file indicates
that the vessel was inspected for heavy weather damage by the
American Bureau of Shipping (ABS) in Guam, however, no report of
this inspection has been included with the application.

     The applicant further claims that cleaning of the air
scavenger spaces is necessary for routine inspection of the main
engine internals of the scavenging air chambers, and that these
inspections are not possible without the internal cleaning.

     The scavenging spaces of a diesel engine are steel chambers
that are permanently attached to the cylinders of the engine. 
The scavenging spaces serve two functions.  First, the scavenging
spaces receive the discharge from the turbo-chargers and deliver
the charged air to each cylinder via reed valves and intake
ports.  Second, air from the piston underside is pumped into the
scavenging space via reed valves to supplement turbo-charger-
delivered air.  This air enters the cylinders via inlet ports
uncovered when the piston gets to the bottom end of its stroke
and serves to "scavenge" the burnt gases out of the cylinder. 
This process cleans the cylinders of spent energy and provides a
clean air discharge for the next fuel injection.  As a result of
this process, some gases containing unburnt carbon may be left
and deposited in the scavenging spaces.

     These carbon deposits and other oily deposits in the
scavenger spaces may result in fire or explosion.  They also
reduce the efficient operation of the engine.  Diesel engine
maintenance manuals therefore require periodic cleaning of the
scavenger spaces to permit the safe and efficient operation of
the vessel.  The maintenance of a scavenger space involves
removing access plates and scraping, wire brushing, and wiping
the inside of the space.  This operation is labor intensive and
would take a single worker up to two working days to clean a
single cylinder.

     The applicant claims that the cleaning of the air scavenger
spaces is not subject to duty under  1466.  
 ISSUES:

     1.  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).

     2. Whether removing carbon and oil deposits from diesel
     engine air scavenger spaces constitutes a nondutiable
     cleaning or a dutiable maintenance operation under 19 U.S.C.
      1466.

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 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)).

     Treasury Decision 78-180, sets out 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)).  It was
held that evidence of winds of force 9 on the Beaufort Scale, a
numerical scale rating winds according to ascending velocity from
zero (calm) to twelve (hurricane), verified as required in the
regulations, and accompanied by a reasonable description of the
conditions, raise a presumption that severe weather conditions
caused the damage. (See also Rene de Kerchove, International
Maritime Dictionary 52 (2nd Ed. 1961).  

     The applicant claims that the invoices submitted relate to
the repairs necessary because of a casualty.

     The file contains copies of internal documents relating to
storm damage.  These documents amount to reports of the presence
of damage, but provide no evidence as to how the damage occurred. 
The vessel log dated January 31, 1992, shows that the vessel
encountered force 7 Northwest winds and Westerly swells of force
7.   The ABS Report No. KS 7522, dated February 16, 1992, reports
that:
          Note:  a)  Reference is made to Guam Report Mo. GM537
          dated February 10, 1992 recommending permanent repairs
          for heavy weather damage to be dealt with prior
          completion of Special Periodical Survey of Hull No. 2.

Guam Report No. GM537 has not been submitted with the
application.

     The evidence is insufficient to support a finding that the
vessel encountered heavy weather conditions during the period of
January 31, 1992, that caused the alleged damage which we presume
occurred while the vessel was enroute from Oakland to Guam during
the period of January 31 through February 10, 1992.  Absent clear
proof of an identifiable event to show the cause of the alleged
damage, the cost of repairs is not remissible (see C.I.E.
1826/58).  

     We note that in this case we have been asked to grant
remission for a vessel which incurred damage while enroute to
U.S. waters, and departed U.S. waters to obtain foreign repairs. 
We have previously denied such requests regarding any vessel
exiting U.S. waters (and consequently bypassing U.S. yards) in
view of the fact that such a vessel could not have been
"...compelled ...to put into such foreign port... to secure the
safety and seaworthiness of the vessel...." 

     With regard to the Item No. 7 - ABS survey Report No. KS
7522, covering the repairs listed in Item Nos. 4 and 6, Customs
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 the item is
dutiable.  If an inspection or survey is conducted as a part of
an ongoing maintenance and repair program labelled "continuous"
or "ongoing" the cost is dutiable.  Also, 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 holdings in C.I.E.
429/61, C.S.D. 79-2, and C.S.D. 79-277.  Accordingly, we find
that the survey relating to Report No. KS7522 is dutiable.  The
application is denied as to the cost for item No. 7.  

Item No. 2 - Cleaning of Air Scavenger Spaces

     In analyzing the dutiability of foreign vessel work, the
Customs Service has consistently held that cleaning is not
dutiable unless it is performed as part of, in preparation for,
or in conjunction with dutiable repairs or is an integral part of
the overall maintenance of the vessel.  (E.g., Headquarters
Ruling Letter 110841, dated May 29, 1990 (and cases cited
therein)).  The Customs Service considers work performed to
restore a part to good condition following deterioration or decay
to be maintenance operations within the meaning of the term
repair as used in the vessel repair statute.  (See generally, 
Headquarters Ruling Letter 106543, dated February 27, 1984;
C.I.E. 142/61, dated February 10, 1961.)  
     The dutiability of maintenance operations has undergone
considerable judicial scrutiny.  The United States Court of
Customs and Patent Appeals, in ruling that the term repair as
used in the vessel repair statute includes "maintenance
painting," gave seminal recognition to the dutiability of
maintenance operations.  E. E. Kelly & Co. v. United States, 55
Treas. Dec. 596, T.D. 43322 (C.C.P.A. 1929).  The process of
chipping, scaling, cleaning, and wire brushing to remove rust and
corrosion that results in the restoration of a deteriorated item
in preparation for painting has also been held to be dutiable
maintenance.  States Steamship Co. v. United States, 60 Treas.
Dec. 30, T.D. 45001 (Cust. Ct. 1931).

     Most recently, the United States Customs Court examined
whether the scraping and cleaning of Rose Boxes constituted
dutiable repairs.  Northern Steamship Company v. United States,
54 Cust. Ct. 92, C.D. 1735 (1965).  Rose Boxes are parts fitted
at the ends of the bilge suction to prevent the suction pipes
from being obstructed by debris.  The court determined that the
removal of dirt and foreign matter from the boxes did not result
in the restoration of the boxes to good condition following
deterioration and consequently held that the work was not subject
to vessel repair duties.  Id. at 99.  

     The precise issue presented is whether the cleaning of air
scavenger spaces may be characterized as simple cleaning or as
maintenance, not whether cleaning or maintenance operations are
dutiable or non-dutiable.   

     The applicant's conclusion that the cleaning of air
scavenger spaces is a "simple" cleaning and is a fortiori not
subject to duty based on the decisions cited is untenable.  The
applicant attempts to characterize the cleaning of air scavenger
spaces as "simple" cleaning needed only for inspection of the
engine valves.  This characterization fails, however, to include
the threat of fire or explosion posed by the failure to properly
maintain the scavenger spaces.  It further fails to note the
decline in efficiency of the engines that results from the
collection of the carbon and oil deposits in the air scavenger
spaces.  As stated in our previous rulings, the collection of
carbon and oil deposits results in a deterioration--as manifested
in the safety and efficiency problems--of the air scavenger
spaces that may only be corrected by cleaning the air scavenger
spaces.  (See generally Headquarters Ruling Letter 111700, dated
November 19, 1991.)  We therefore reaffirm our position that
cleaning air scavenger spaces is a maintenance operation that is
subject to duty under 19 U.S.C.  1466.
     The Customs Service first addressed the issue of cleaning
air scavenger spaces in Headquarters Ruling Letter 110911 BEW,
dated December 3, 1990.  The applicant has failed to cite a
ruling or to demonstrate otherwise that the Customs Service had
in fact established a position on the dutiability under 19 U.S.C.
 1466 of the cleaning of air scavenger spaces prior to
Headquarters Ruling Letter 110911.  Moreover, as shown in the
previous paragraph, we do not believe that the applicant has
demonstrated that the holding in Headquarters Ruling Letter
110911 deviates from existing judicial decisions or results in a
reversal or modification of any of the existing administrative
rulings.  We submit that the reasoning and conclusion of that
letter and subsequent rulings on the issue are consistent with
the precedent identified in those ruling letters and by the
applicant.  

     Finally, the applicant contends that the Customs Service has
not held the cleaning of air scavenger spaces to be dutiable
since 1982.  Headquarters Ruling Letter 110911 was issued in
response to an application for relief forwarded by the New York
Vessel Repair Liquidation Unit (VRLU) following which we learned
that from 1982 to 1990 the San Francisco VRLU had not been
assessing duty whereas the two other regional VRLU's were. 
Absent a ruling letter or a published statement of position, we
hold that the applicant cannot rely on determinations made by the
San Francisco VRLU to establish a position of the Customs
Service.  (See Superior Wire v. United States, 7 Fed. Cir. (T)
43, 45-46, 867 F.2d. 1409, 1412-13 (1989).)

HOLDINGS:

     1.  The evidence presented is insufficient to substantiate
that the subject repairs were necessitated by a casualty.  The
foreign work for which the applicant seeks remission is therefore
dutiable under 19 U.S.C. 1466.  

     2.  The removal of carbon and oil deposits from the main
engine scavenger spaces is a maintenance operation, the cost of
which is subject to duty under 19 U.S.C.  1466.  


                                     Sincerely, 




                                     Acting Chief
                                     Carrier Rulings Branch