HQ 113027: Vessel Repair; 19 U.S.C. 1466; M/V PRESIDENT POLK, V-29; Entry No. C27-0054168-6; 19 U.S.C. 1520(c)(1)

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 113027

                          February 28, 1994

VES-13-18-CO:R:IT:C   113027 GOB

CATEGORY:  Carriers

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

RE:  Vessel Repair; 19 U.S.C. 1466; M/V PRESIDENT POLK, V-29; Entry
     No. C27-0054168-6; 19 U.S.C. 1520(c)(1)

Dear Sir:

     This is in response to a letter dated February 10, 1994 from
American President Lines, Ltd. ("APL") with respect to the above-
referenced entry.  That letter states in part:

     ...we request alternatively further review of the Protest
     pursuant to 19 CFR 174.25 or correction of a clerical error,
     mistake of fact, or inadvertence pursuant to 19 CFR 173.4. 
     The mistake of fact does not amount to an error in the
     construction of law, is adverse to APL and is manifest from
     the record or established by documentary evidence.

     By Ruling 112965 dated December 23, 1993 the protest of the
above-referenced entry was granted in part and denied in part.

     We are not treating APL's letter as an application for further
review.  Ruling 112965 was with respect to APL's protest and
application for further review.

     We are treating APL's February 10, 1994 letter as a petition
submitted pursuant to 19 U.S.C. 1520(c)(1), which states:

     (c) Reliquidation of entry

     Notwithstanding a valid protest was not filed, the appropriate
customs officer may, in accordance with regulations prescribed by
the Secretary, reliquidate an entry to correct -

          (1) a clerical error, mistake of fact, or other
          inadvertence not amounting to an error in the
          construction of law, adverse to the importer and manifest
          from the record or established from documentary evidence,
                              - 2 -

          in an entry, liquidation, or other customs transaction,
          when the error, mistake, or inadvertence is brought to
          the attention of the appropriate customs officer within
          one year after the date of liquidation or exaction; or

     After a consideration of APL's petition and the evidence of
record, we find that there was no clerical error, mistake of fact,
or other inadvertence not amounting to an error in the construction
of law.  

     With respect to APL's claim of mistake of fact, we note the
following.

     "Mistake of fact" is defined in 19 CFR 162.71(d) as follows:

     "Mistake of fact" means an action based on a belief by a
     person that the material facts are other than they really are;
     it can be that a fact exists but is unknown to the person, or
     that he believes something is a fact when in reality it is
     not.  An action is not a mistake of fact if the erroneous
     belief is caused by the neglect of a legal duty.

     The Court of International Trade has defined mistake of fact
as follows:

     A mistake of fact exists when `a person understands the facts
     to be other than they are' or `when some fact which indeed
     exists, is unknown, or a fact which is thought to exist, in
     reality does not exist.'

NEC Electronics U.S.A., Inc. v. United States, 709 F. Supp. 1171,
1173 (C.I.T. 1989), quoting Concentric Pumps, Ltd. v. United
States, 643 F. Supp. 623, 625 (C.I.T. 1986).

     The entire record was reviewed in the course of our issuance
of Ruling 112965.  There was no misunderstanding of facts.  The
bases of our decision are as stated in the ruling.  With respect
to certain of the items for which the protest was denied, the
documentation submitted by APL was found to be insufficient.
     
     Accordingly, the petition is denied.  Please provide APL with
a copy of this letter.



                              Sincerely,



                              Arthur P. Schifflin
                              Chief