HQ 111944: Vessel repair; Casualty alleged; Repair; Scavenger air spaces; Vessel PRESIDENT ADAMS, V-24; Port of arrival, Los Angeles, California; Vessel repair number C27-0189100-7

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 111944

                        January 27, 1992


VES-13-18-CO:R:IT:C  111944 LLB

CATEGORY:  Carriers

Deputy Assistant Regional Commissioner
Commercial Operations Division
Pacific Region
One World Trade Center
Long Beach, California 90731

RE:  Vessel repair; Casualty alleged; Repair; Scavenger air
     spaces; Vessel PRESIDENT ADAMS, V-24; Port of arrival, Los
     Angeles, California; Vessel repair number C27-0189100-7

Dear Sir:

     Reference is made to your memorandum of October 2, 1991,
which forwards for our review and determination the Petition for
Review submitted by American President Lines, Ltd., in connection
with the above-captioned vessel repair entry.

FACTS:

     The items under consideration on this appeal relate to two
separate voyages of the vessel.  On the voyage prior to the one
in question the satellite navigation system antenna "came adrift"
in allegedly heavy weather.  It is stated that attempted repairs
made by the crew proved by the next voyage to be insufficient.
On the voyage in question, the vessel experienced a breakdown of
both steering systems shortly after departing Oakland,
California.  The vessel returned to the United States that same
day where one unit was replaced and the other was "jury rigged"
to enable the vessel to sail to Japan where parts air freighted
from Germany were to be installed.  Also while in Japan, the
vessel's scavenger air spaces were cleaned out.




ISSUE:

     Whether sufficient evidence is submitted to permit a finding
that antenna and steering system repairs were casualty-related so
as to qualify for refund or remission of duty under the vessel
repair statute.  Further, whether operations involving the
scavenger might be considered non-dutiable cleaning procedures.

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.

     Title 19, United States Code, subsection 1466(d)(1), states
that the Secretary of the Treasury is authorized to remit or
refund such duties if the owner or master furnishes good and
sufficient evidence that the vessel was compelled to put into a
foreign port and make repairs to secure the safety and
seaworthiness of the vessel to enable her to reach her port of
destination.

     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.  See Customs
Ruling Letter 106159  LLB (9-8-83).

     In the present case, there is no direct evidence of a heavy
weather incident leading to damage to the antenna.  Further, any
question regarding the sufficiency of repairs made by the crew
should have been settled on the vessel's prior call in the United
States.  In the matter of the steering system repairs, there is
not even an allegation put forward regarding any extrinsic force
causing the systems to fail.  In fact, it is stated that a design
defect was responsible.  It is well settled that such claims are
not allowed (Customs  Ruling 110740, July 16, 1990).

     The final point on appeal concerns the cleaning of certain
main engine air scavenger spaces.  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 gasses 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
gasses 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.

     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.  In arriving at its decision,
the court focused on whether the cleaning operation was simply
the removal of dirt and foreign matter from the boxes or whether
it resulted in the restoration of the part to good condition
after deterioration or decay.  Id. at 98.  The court determined
that the cleaning 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 Customs Service has ruled that the regular cleaning of
filters in most instances does not result in liability for duty.
See Headquarters Ruling Letter 107323, dated May 21, 1985.

     From these authorities, we determine that the cost of
cleaning the air scavenger spaces is subject to duty under 19
U.S.C. 1466.  The term deterioration is defined to mean
degeneration, which in turn denotes declined function from a
former or original state.  See The American Heritage Dictionary
of the English Language 376, 387 (2d ed. 1985).  The principal
function of the air scavenger spaces is to either deliver turbo-
charged air to the cylinders or receive spent gasses from the
cylinders.  The collection of carbon and other oily deposits
poses a fire or explosion hazard and results in a diminished
engine function.  The removal of the carbon deposits through
scraping, wire brushing, and wiping results in a restoration of
the scavenger spaces to good condition following a decline in
function of the scavenger spaces.  Such an operation can be
distinguished from cleaning a Rose Box or other filter, for the
collection of debris by these parts results not in a diminution
of function, but alternatively demonstrates the proper function
of the part.

HOLDING:

     Following a thorough review of the evidence submitted as
well as analysis of the applicable law and precedents, we have
determined that, for the reasons set forth in the Law and
Analysis portion of this ruling, the Petition for Review should
be denied.

                              Sincerely,




                              B. James Fritz
                              Chief
                              Carrier Rulings Branch