HQ 112394: Vessel Repair; Casualty; Stevedore Negligence; Evidentiary Requirements; Coast Guard Documentation; Seaworthiness; SEA-LAND EXPLORER; Application; Entry No. C27-0067825-6; 19 U.S.C. 1466(d)(1); 19 C.F.R. 4.14.

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 112394

                        December 14, 1992

VES-13-18 CO:R:IT:C  112394 GFM

CATEGORY:  Carriers

Chief, Technical Branch
Commercial Operations Division
Pacific Region
One World Trade Center
Long Beach CA  90731

RE:  Vessel Repair; Casualty; Stevedore Negligence; Evidentiary
     Requirements; Coast Guard Documentation; Seaworthiness; 
     SEA-LAND EXPLORER; Application; Entry No. C27-0067825-6; 
     19 U.S.C.   1466(d)(1); 19 C.F.R.   4.14. 

Dear Sir:

     This letter is in response to your memorandum of July 22, 
1992, which forwards for our review the above referenced
application for relief from the assessment of vessel repair
duties.

FACTS:

     The subject vessel, the SEA-LAND EXPLORER, is a U.S.-flag
vessel owned and operated by Sea-Land Services, Inc.  On April
10-11, 1992, while docked at Kaohsuing, Taiwan, the vessel
undertook foreign repairs to the #7B hatch and #7B hatch coaming
which allegedly resulted from stevedore negligence said to have
occurred while the vessel undertook cargo operations in Naha,
Japan.  On June 23, 1992, an application for relief was filed
requesting remission for the above mentioned repairs as well as
charges for a damage survey conducted by the American Bureau of
Shipping (ABS).  Our findings are set forth below.

ISSUE:  
     
     Whether sufficient evidence is presented to establish that
the subject repairs were necessary to insure the vessel's safety
and seaworthiness thus warranting remission pursuant to 19 U.S.C.
  1466(d)(1).
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 establishes a three-part test which must be
satisfied 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.

     In addition, if the above requirements are satisfied by
acceptable 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.  

     Regarding the establishment of a casualty, the term, as it
is used in the statute, has been interpreted as something, like
stress of weather, which comes with unexpected force or violence,
such as fire, or 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 (Headquarters Ruling Letter
106159, September 8, 1983).

     In order to properly document such a casualty occurrence,
Customs Regulations require that certain supporting evidence be
submitted with the application for relief for damages resulting
from stress of weather.  This evidence includes, but is not
limited to, 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) see, Headquarters Ruling
Letters 106461, 105669).

     With regard to stevedore negligence, the Customs Service has
previously ruled that where parts of vessels are damaged by the
negligence of stevedores, repairs to such parts are considered to
be necessitated by a casualty and are entitled to remission
provided there is no evidence showing lack of maintenance or wear
and tear. (C.I.E. 1161/62, Headquarters Ruling Letters 105811,
105813, 105788, 111572).

     In the present case, no supporting evidence to sustain a
casualty claim is submitted.  The only documents which mention
the alleged casualty consist of the application letter, the
vessel repair entry and the ABS damage survey report. 
Accordingly, as the applicant has not provided the requisite
proof that a casualty occurred.

     With regard to the remaining requirements, the establishment
of the safety and seaworthiness of the vessel and the vessel's
ability to reach its port of destination, the United States Coast
Guard (USCG) is the controlling agency that determines questions
of a vessel's fitness to proceed.  The procedure by which the
USCG renders such a determination is set forth in sections 2.01-
15 and 31.10-25, USCG Regulations (46 C.F.R    2.10-15, 31.10-
25).  The former states that a vessel may not proceed from one
port to another for repairs unless prior authorization is
obtained from the USCG Officer in Charge, Marine Inspection
(OCMI) either through the issuance of a USCG "Permit to Proceed
to Another Port for Repairs" (CG-948) or a CG-835 which would
specify the restrictions on, and duration of, any voyage
undertaken prior to obtaining permanent repairs.  The latter
states that with respect to tank vessels, "No extensive repairs
to the hull or machinery which affect the safety of a vessel
shall be made without the knowledge of the Officer-In-Charge,
Marine Inspection."  

     The standard of proof necessary to establish "safety and
seaworthiness" is set forth in Headquarters Ruling Letter 112060
GEV.  That ruling established the clear rule that where a vessel
which is damaged foreign proceeds between two foreign locations
in a state of disrepair prior to being repaired foreign, and
subsequently sails to its U.S. port of destination,
notwithstanding any established practice of verbally reporting
foreign casualties to the USCG and that agency's subsequent
verbal instructions in response thereto, remission pursuant to 
19 U.S.C.   1466(d)(1) will not be granted in the absence of
documentary evidence that the casualty occurrence was timely
reported to the USCG and that agency permitted the vessel to
proceed between two foreign locations in a damaged condition. 
The mere submission of a USCG Report of Marine Accident, Injury
or Death (CG-2692), without accompanying documentation from the
appropriate USCG OCMI (New York or Honolulu) authorizing the
vessel to proceed in a damaged condition, will not suffice for
granting remission pursuant to 19 U.S.C.   1466(d)(1). 

     Again, with regard to the present case, no such documentary
evidence is presented.  As stated previously, the only documents
which mention circumstances relating to the alleged casualty are
the vessel repair entry, the application request, and the ABS
damage survey report.  As none of these documents is sufficient
to establish the safety and seaworthiness of the vessel in
accordance with established authority, remission pursuant to 
19 U.S.C.   1466(d)(1) cannot be granted.

HOLDING:

     As the evidence provided is insufficient to prove either
that a casualty occurrence existed or that the vessel was unsafe
and unseaworthy and thus unable to proceed to its port of
destination, remission pursuant to 19 U.S.C.   1466(d)(1) cannot
be granted.
     
                                        Sincerely,



               
                                        Acting Chief
                                        Carrier Rulings Branch