HQ 112736: Protest No. 1303-4-000122; Baltimore, Maryland, Vessel Repair Entry No. 1303-82-101299-2, dated May 18, 1992; M/T MONA, Voyage M202; 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 112736

                         October 4, 1993


VES-13-18 CO:R:IT:C  112736 BEW

CATEGORY:  Carriers

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

RE:  Protest No. 1303-4-000122; Baltimore, Maryland, Vessel
     Repair Entry No. 1303-82-101299-2, dated May 18, 1992; M/T
     MONA, Voyage M202; casualty; 19 U.S.C. 1466(d)(1); 19 CFR
     4.14 

Dear Sir:

     This is in response to your transmittal of May 14, 1993,
that forwards a memorandum dated February 19, 1986, which
transmitted protest No. 1303-4-000122, concerning vessel repair
entry No. 1303-82-1010299-2, relating to the M/T/ MONA, Voyage
M202.  We have reviewed our records and we find no record of
receiving this protest.  Therefore, it appears that a ruling was
never issued on this protest.  Our findings are set forth below.

FACTS:
          
     The M/T MONA is an United States-flag vessel owned by
Steamship Company Mona, Inc.  The record shows that the subject
vessel arrived in the port of Baltimore, Maryland, on May 18,
1982, after having undergone repairs in the ports of Ponta
Delgada, Azores, on February 16, 1982, Port Said, Egypt, on
March 15, 1982, and Karachi, Pakistan, on April 11, 1982.  An
application for relief was not filed.  On August 22, 1983, a
petition for relief was filed alleging that the subject repairs
were necessary due to "casualty".  Your office treated the
petition as an application and on December 14, 1983, denied the
application on the basis that it was untimely filed.  The entry
was liquidated on April 6, 1984, and a protest was timely filed
on April 14, 1984.
     The protestant claims that the subject invoices relate to
the repairs necessary because of a casualty.  It claims that the
repairs were of an emergency nature and necessary for the safe
operation of the vessel.  The documents show that repairs were
made to the evaporator motor, auxiliary generator, the main motor
exciter and the force draft fan bearing.  The protestant has
submitted the vessel engineer's log book and a statement from the
Chief, Engineer in support of it contentions.  The failure of the
main motor was described as a "burning." 

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)).

     We have reviewed the invoices submitted with the protest. 
It is clear from the evidence that the vessel was in need of
repairs due to a breakdown of the vessel's main motor.  Further,
it is clear from the evidence that the vessel was in need of
repairs to secure her safety and seaworthiness, however, the
evidence is insufficient to show what actually caused the
breakdown of the subject items.  Absent clear proof of an
identifiable event to show an unexpected force or violence, such
as fire, explosion, or collision resulting in damage, such cost
of repairs is not remissible (see C.I.E. 1826/58).  The
documentation submitted is insufficient to support a finding of a
casualty as provided in section 1466(d)(1).  Despite the
description of the engine failure as a "burning" by the
protestant, it has become quite clear that the damage was due not
to an identifiable event of some sort which caused the damage but
to wear and tear.  Pursuant to C.I.E. 919/60 remission of duty
assessed on the cost or repairs is not warranted under section
1466 where the repairs are maintenance in nature.  

HOLDING:

     The evidence presented is insufficient to substantiate that
the subject repairs were necessitated by a casualty.  The foreign
work for which the protestant seeks remission is therefore  dutiable under 19 U.S.C. 1466.  The district director should deny
the protest in full.  A copy of this decision should be attached
to the Customs Form 19 and forwarded to the protestant as part of
the notice of action on the protest.

                                     Sincerely,




                                     Arthur P. Schifflin
                                     Chief
                                     Carrier Rulings Branch