HQ 113069: Vessel Repair; 19 U.S.C. 1466; M/V SEA-LAND KODIAK, V-201; Entry No. 110-6461404-0; Casualty

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 113069

                            April 18, 1994

VES-13-18-CO:R:IT:C   113069 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 SEA-LAND KODIAK, V-201;
     Entry No. 110-6461404-0; Casualty

Dear Sir:

     This is in response to your memorandum dated March 15, 1994,
which forwarded the application for relief submitted by Sea-Land
Service, Inc. ("applicant") with respect to the above-referenced
entry.

FACTS:

     The record reflects the following.  The M/V SEA-LAND KODIAK
(the "vessel") is a U.S.-flag vessel owned and operated by the
protestant.  Certain foreign shipyard work was performed on voyage
201.  The vessel arrived at the port of Tacoma, Washington on
October 20, 1993 and subsequently filed a vessel repair entry.

     Your office has asked for our review of the following items:

          Item No.                 Description

           1.5                     propeller damage
           6.1                     survey of propeller
           8.1                     engineer
           8.6                     casualty preparation
           15.1                    rudder access modification
           15.2                    rudder access test fuse
           17.12a                  propeller shaft inspection
           17.14a                  rudder inspection
           17.15                   aft stern tube seal inspection
           17.16a                  propeller repairs
           17.17a                  stern tube seal inspection
           17.18a                  propeller system repairs
           18.1b                   inspection of tanks

                              - 2 -

     The applicant states that the vessel "experienced failure of
the control pitch propeller while en route from Alaska to Tacoma,
Washington on October 6, 1993 while off Port Angeles, WA."  The
documentation submitted with the application indicates that the
applicant requests remission of duties pursuant to 19 U.S.C.
1466(d)(1) based on a casualty occurrence.

ISSUE:

     Whether the subject items are dutiable pursuant to 19 U.S.C.
1466(a).  If so, whether duty is remissible pursuant to 19 U.S.C.
1466(d)(1).

LAW AND ANALYSIS:

     19 U.S.C. 1466 provides for the payment of duty at a rate of
fifty percent ad valorem on the cost of foreign repairs to vessels
documented under the laws of the United States to engage in foreign
or coastwise trade, or vessels intended to be employed in such
trade.

     19 U.S.C. 1466(d)(1) provides in part that the Secretary of
the Treasury is authorized to remit or refund such duties if the
owner or master of the vessel furnishes good and sufficient
evidence that the vessel was compelled by stress of weather or
other casualty 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.  19 CFR 4.14(c)(3)(i) provides that
"port of destination" means such port in the United States and
"...only the duty on the cost of the minimal repairs needed for the
safety and seaworthiness of the vessel is subject to remission or
refund."  19 U.S.C. 1466 and 19 CFR 4.14 essentially set forth a
three-part test, each of the elements of which must be established
by good and sufficient evidence to qualify for remission:

          1. a casualty occurrence;
          2. an unsafe and unseaworthy condition; and
          3. the inability to reach the port of destination without
foreign repairs.

     We find that the applicant has not established that a casualty
occurred.  

     The application states that the vessel "experienced failure
of the control pitch propeller."  The statement of the master
asserts:  "the CPP failed to function at 1015hrs.  Specifically it
would not go full pitch and behaved erratically."  The applicant
has established that there was a mechanical problem with the
propeller.  It has not established that the problem occurred as a
result of a casualty.  

     

                              - 3 -

     We have stated as follows in numerous decisions:

     The term "casualty", as it is used in the vessel repair
     statute (19 U.S.C. 1466) has been interpreted as something
     which, like stress of weather, 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 (see Dollar Steamship Lines, Inc. v. United
     States, 5 Cust. Ct. 28-29, C.D. 362 (1940)).  In the absence
     of such a casualty event, we must consider the repair to have
     been necessitated by normal wear and tear (ruling 106159,
     September 8, 1983).
     
     In Dollar Steamship Lines, the court stated in pertinent part:

     We are of the opinion that a casualty similar to "stress of
     weather" should be of necessity a happening that comes with
     the violence of the turbulent forces of nature.

     Black's Law Dictionary (Fifth Edition, 1979) defines casualty
as follows:

     A serious or fatal accident.  A person or thing injured, lost
     or destroyed.  A disastrous occurrence due to sudden,
     unexpected or unusual cause.  Accident; misfortune or mishap;
     that which comes by chance or without design.  A loss from
     such an event or cause; as by fire, shipwreck, lightning, etc.

     Accordingly, the following items are dutiable repairs or
repair-related items and the duty is not remissible: 1.5, propeller
damage; 6.1, survey of propeller; 8.1, engineer services related
to propeller repairs; 8.6, preparation for repairs; 17.12a,
propeller shaft inspection; 17.16a, propeller repairs; and 17.18a,
propeller system repairs.   

     We find that the following items are nondutiable because they
are not repairs or repair-related items:  15.1, rudder access
modification; 15.2, rudder access test fuse; 17.14a, rudder
inspection; 17.15, aft stern tube seal inspection; 17.17a, stern
tube seal inspection; 18.1b, inspection of tanks.

HOLDING:

     As detailed supra, the application is granted in part and
denied in part.

                              Sincerely,


                              Arthur P. Schifflin
                              Chief