HQ 110733: Honolulu Vessel Repair Entry No. H19-0010438-1 dated August 23, 1989; MAERSK CONSTELLATION, voyage 89-03. application; casualty; insufficient documentation, 19 U.S.C. 1466(d); 19 CFR 4.14(c)

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 110733

                         August 7, 1990


VES-13-18-CO:R:P:C  110733 BEW

CATEGORY:  Carriers

Chief, Technical Branch
Commercial Operations Division
Pacific Region
1 World Trade Center
Long Beach, California 90831

Re:  Honolulu Vessel Repair Entry No. H19-0010438-1 dated
     August 23, 1989; MAERSK CONSTELLATION, voyage 89-03.
     application; casualty; insufficient documentation, 19 U.S.C.
     1466(d); 19 CFR 4.14(c)

Dear Sir:

     This is in reference to a memorandum dated December 26,
1989, from your office which transmitted an application for
relief from duties filed by Maersk Line, Limited, relating to
vessel repair entry No. H190010438-1 filed on August 23, 1989,
for foreign repairs performed on the MAERSK CONSTELLATION, voyage
89-03.

FACTS:

     The record shows that the shipyard work in question was
performed on the subject vessel in Yokohama, Japan, during the
period August 8, 1989, respectively.  The subject vessel arrived
in the United States at the port of Honolulu, Hawaii, on August
17, 1989.

     The entire vessel repair entry involves an estimated duty
of $9,546.

     The applicant claims that relief for the subject items
should be granted because the items should be classified as
nondutiable items covered under title 19, United States Code,
section 1466 and sections 4.14(d) of the Customs Regulations.

     The applicant claims that the repairs or equipment
purchases described in the documents were necessitated by a
casualty, i.e., emergency radar repairs, emergency repairs to the
evaporators and emergency repairs to the crane.  It claims that
the vessel was compelled, because of damage, to make repairs and
to purchase such equipment to secure the safety and seaworthiness
of the vessel to enable it to reach its port of destination.

ISSUE:

     Whether the foreign work performed on the subject vessel is
dutiable 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 also 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 which must be met in
order to qualify for remission under the subsection, these 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 which, like stress of weather, comes
with unexpected force or violence, such as fire, explosion, 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).

     The applicant describes the repairs as follows:

          1.  The radar repairs were necessary to make the vessel
          seaworthy because to sail without two fully operational
          radars would be in violation of both U.S. and
          International laws.


          2.  The repairs to the freshwater generator were
          required when previous repairs failed.  It claims that
          while the vessel has a fresh water storage capacity,
          contamination of the fresh water could cause a severe
          problem for the ship and a potential life threatening
          situation for the crew.

          3.  The repairs to the crane were necessary by because
          while operating the cranes offloading cargo, a
          casualty occur, i, e, the wire jumped the sheave due to
          excessive lowering speed by the stevedore crane
          operation while unloading armored personnel carriers.

     It claims that each of the invoices submitted relate to the
repairs necessary because of a casualty.

     The file contains copies of the contemporaneously prepared
reports concerning the damage and repair to the radar; and copies
of internal documents relating to the evaporator and the crane.
These documents amount to reports on the presence of damage, but
provide no evidence as to how the damage occurred.

     It is clear from the evidence that the vessel was in need of
repairs to secure her safety and seaworthiness, however,
the evidence is insufficient to show what actually caused the
break down of the radar and the evaporator or the stevedore
negligence involving the crane.  Based on the evidence it appears
that the repairs may have been due to the lack of proper
maintenance.  Absent clear proof of an identifiable event to show
an unexpected force or violence, such as fire, explosion, or
collision resulting in damage, such cost of repairs is not
remissible (see C.I.E. 1826/58).  The documentation submitted is
insufficient to support a finding of a casualty as provided in
section 1466(d)(1).  Accordingly, the cost incurred for the
repairs associated with the "emergency" repairs is dutiable.

HOLDING:

     The foreign work for which the applicant seeks relief is
dutiable under 19 U.S.C. 1466.

                                     Sincerely,




                                     B. James Fritz
                                     Chief
                                     Carrier Rulings Branch