HQ 112228: Vessel Repair Entry No. 718-0000418-7 dated May 6, 1992; GREEN LAKE, V-32; Application; casualty; heavy weather; evidence

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 112228

                       September 24, 1992

VES-13-18 CO:R:IT:C  112228 BEW

CATEGORY:  Carriers

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

RE:  Vessel Repair Entry No. 718-0000418-7 dated May 6, 1992;
     GREEN LAKE, V-32; Application; casualty; heavy weather;
     evidence 

Dear Sir:

     This is in reference to your memorandum of May 6, 1992,
which transmitted an application for relief from duties filed by
Central Gulf Lines, Inc., in relation to the above-referenced
vessel repair entry, dated February 28, 1992.  The entry and the
application were timely filed.  The vessel arrived at the port of
Portland, Oregon, on February 26, 1992.

FACTS:
          
     The GREEN LAKE is a U.S.-flag vessel owned by Central Gulf
Lines, Inc.  The record shows that the shipyard work in question
was performed on the subject vessel at the Maritime Engineering
a.s, in Toyohashi, Japan, during the period of February 11
through February 14, 1992.

     The entire vessel repair entry involves a potential duty of
$31,096.18.

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

     Item #             Vendor
     
     03        Maritime Engineering - overhead crane

     04        Maritime Engineering - cylinder liner

     10        Maritime Engineering - impeller/seals

      The application states that the vessel encountered severe
weather conditions while enroute to Toyohashi, Japan, resulting
in heavy weather damage to both the overhead crane and freshwater
generator pump.  It states that the overhead crane repair became
necessary immediately to ensure safe placement of the main engine
cylinder liner and other essential parts in the vessel's main
engine room.  It states that the cylinder liner was placed on
board timely to avoid a potentially dangerous situation should
another casualty occur.  It states that the fresh water generator
pump began to fail during the rough weather encountered at sea.
This equipment is responsible for the purification of water,
necessary for safe use and sanitary crew consumption.  The
applicant has also submitted copies of relevant pages from the
ship's log containing the sea conditions on February 4, 5, and 7,
1992, and an undated page of the ship's log.  

ISSUE:

     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). 

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 which 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 which, 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 enable the vessel to reach her port of
destination.  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 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)(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 evidence is insufficient to support a finding that the
vessel encountered heavy weather conditions during the period of
February 4 through February 11, 1992.  In addition, the evidence
is insufficient to show what actually caused the alleged damage
which we presume occurred prior to February 11 through February
14, 1992, the dates on which the subject foreign repair work was
performed.   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).  

HOLDING:

     The evidence presented is insufficient to substantiate that
the subject repairs were necessitated by a casualty.  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