HQ 112633: New York Vessel Repair Entry No. C46-0015866-0, NOSAC RANGER, Voyage 79; Application; casualty; 19 U.S.C. 1466(d)(1); 19 CFR 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 112633

                         August 13, 1993


VES-13-18 CO:R:IT:C  112633 BEW

CATEGORY:  Carriers

Chief, Residual Liquidation and Protest Branch
U.S. Customs Service
6 World Trade Center
New York, New York 10048-0945

RE:  New York Vessel Repair Entry No. C46-0015866-0, NOSAC
     RANGER, Voyage 79; Application; casualty; 19 U.S.C.
     1466(d)(1); 19 CFR 4.14 

Dear Sir:

     This is in reference to your memorandum of March 12, 1993,
which transmitted an application for relief from duties filed by
Pacific-Gulf Marine, Inc., in relation to the above-referenced 
vessel repair entry, dated November 10, 1992.  The entry and the
application were timely filed.  The vessel arrived at the port of
Newark on November 6, 1992.

FACTS:
          
     The NOSAC RANGER, is a U.S.-flag vessel owned by Car
Carrier, Inc.  The record shows that the shipyard work in
question was performed on the subject vessel in Antwerp, Belgium,
on October 22, 1992, and Bremerhaven, Germany, on October 24,
1992.

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

     a.  Kvaerner Invoice N. 920129
     b.  Kvaerner Invoice No, 920130
     c.  UMC International PLC Invoice No, R.1751
         Det Norske Veritas Invoice No. 367718
         LIPS Invoice No. 142040

     Customs and the vessel operator are in substantial agreement
on the issue of dutiability, and only item c. is offered for our
review.
     The applicant claims that the subject invoices listed in
item c. relate to the repairs necessary because of a casualty. 
The applicant claims that the costs were incurred as a result of
propeller damage, first discovered by divers in Antwerp, Belgium
on October 22, 1992.  The applicant alleges that on October 20,
1992, the vessel began to reduce speed for arrival in LeHavre,
France, and at 0100 the vessel experienced abnormally high
vibration or "bucking"  The incident was recorded in the vessel's
log, and the master advised Pacific-Gulf of the problem by
telephone on October 21, 1992.  The vessel proceeded to
Southhampton, England.  Divers could not be mobilized prior to
the vessel's departure from Southhampton.  The vessel arrived at
the next port, Antwerp, Belgium, on October 22, 1992.  An
underwater survey was done, and it was found that the propeller
was heavily damaged, missing approximately 2 feet from the tip of
one of the blades.  Pacific- Gulf contacted Det Norske Veritas, a
classification society, and LIPS to advise them of the damage. 
The vessel departed Antwerp on October 23, and proceeded to her
next port, Bremerhaven, Germany, where DNV surveyed the damaged
area, and advised that the propeller damage had to be dealt with
prior to departure from Bremerhaven.

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 that 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 that, 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 "secure the safety and seaworthiness of the
vessel to enable her to reach her port of destination" (19 U.S.C.
1466(d)(1)).  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 from duties on
repairs 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)).

     It is clear from the evidence submitted with the application
that the vessel's propeller was damaged when she came in contact
with an unknown object while enroute to LeHavre, France. 
Subsequently, the vessel proceeded to the ports of Southhampton,
England, Antwerp, Belgium, and Bremerhaven, Germany, where the
repairs were made.

     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 CFR 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 that 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." 
 
     Notwithstanding the clear wording of the above USCG
Regulations, specifically 46 CFR 2.10-15 that does not
distinguish between foreign or domestic locations, Customs has
been informed by the OCMI, New York, New York, in a letter dated
November 7, 1991, that "A formal Permit to Proceed is not
normally issued to a vessel transiting foreign waters because the
Certificate of Inspection (COI) would have to be removed from the
vessel that would cause problems in transiting foreign waters." 

     In addition, we have subsequently learned from the Chief,
Merchant Vessel Inspection and Documentation Division, USCG
Headquarters, in a letter dated April 14, 1992, that "Vessel
operators often make casualty reports for U.S. flag vessels
damaged overseas verbally to the proper Coast Guard Marine
Inspection Office, followed by the required written report.  The
Coast Guard cannot always send a marine inspector to a damaged
vessel overseas on short notice.  In such cases, the Coast Guard
may consider the classification society report and the report of
the vessel's master to determine the required temporary repairs
and voyage restrictions."

     Our review of the evidence submitted with the application
reveals that the damage was caused by a casualty.  The report
shows that the damage to the vessel was possibly caused on
October 20, 1993, when the vessel was entering the port of
LeHavre.  With regard to the evidence that the vessel was in need
of repairs to secure her safety and seaworthiness, however, the
documents show that the repairs to the propeller were not made
until October 24, 1992, when the vessel arrived in the port of
Bremerhaven, subsequent to a survey of the damage at the port of
Antwerp.

     In cases such as the one under consideration, (i.e., where a
vessel that has been damaged foreign, proceeds in a state of 
disrepair between two foreign locations prior to being repaired
foreign, and subsequently sails to its U.S. port of destination),
notwithstanding any practice of verbally reporting foreign  casualties to the USCG and that agency's subsequent verbal
instructions, 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, directly or through the medium of a marine surveyor,
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). 

     The applicant has not met a burden of proof that is provided
for by federal regulations.  

     Accordingly, in the absence of any determination of the USCG
regarding the subject vessel's safety and seaworthiness, and
absent the evidence that would be adduced by the required USCG
determination on the issue of seaworthiness, the applicant has
failed to substantiate its claim for remission under  1466(d)(1).

HOLDINGS:

     The evidence presented is insufficient to substantiate that
the subject repairs were necessitated by a casualty.  The foreign
work for which the applicant seeks remission is therefore
dutiable under 19 U.S.C. 1466.

                                     Sincerely,




                                     Acting Chief
                                     Carrier Rulings Branch