HQ 113049: Vessel Repair Entry No. 603-1012987-3; 19 U.S.C. 1466; 19 U.S.C. 1466(d)(1); 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 113049

                           August 11, 1994

VES-13-18-CO:R:IT:C   113049 GOB

CATEGORY:  Carriers

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

RE:  Vessel Repair Entry No. 603-1012987-3; 19 U.S.C. 1466; 19
     U.S.C. 1466(d)(1); Casualty

Dear Sir:

     This is in response to your memorandum dated March 18, 1994
which forwarded the application for relief submitted by American
Seafoods Company ("applicant") with respect to the above-
referenced entry.

FACTS:

     The record reflects the following.  The AMERICAN DYNASTY
("vessel") is a U.S.-flag vessel owned and operated by the
applicant.  It has registry and fisheries endorsements.  Certain
foreign shipyard work was performed on the vessel in the second
half of 1993.  The vessel arrived at the port of Seattle,
Washington on December 23, 1993.  A vessel repair entry was filed
on December 30, 1993.

     You ask for our determination with respect to the following
items:

Item No.       Vendor                Description
1 4-4.03       Asmar (Talcahuano)    Rudder
1 10-10.01     "                "    Recording thickness of hull
                                     indents
2              Asmar (Punta Arenas)  Checking system
3              "                  "  Rubber system
6              "                  "  Sonar repairs
8              "                  "  Sonar repairs
9              Det Norske Veritas    Survey

     In its application, the applicant states as follows:

     

                              - 2 -

     The fishing vessel AMERICAN DYNASTY while operating in the  
     South Pacific off the coast of Chile encountered extremely  
     heavy weather which caused damage to the rudder and to the  
     sonar of the vessel.

     The damage was sufficient enough to cause the master of the
     vessel to divert the vessel to Punta Arenas, Chile to  undergo
emergency repairs.  As noted in the copies of the      vessel log
attached and the statement of the master the      vessel was
considered to be in a dangerous situation and     further operation
would cause additional damage and possibly   the loss of the rudder
leaving the vessel to the perils of     the sea.

     The statement of the master dated March 1, 1994 reads as
follows, in pertinent part:

     1. Date and time of incident: June 24, 1993 @ 2010...
     ...
     3. Size of seas: 10-15 Foot; Beaufort scale of 4
     ...
     5. What steps were taken after the incident and why?
          We felt a strong vibration coming from the stern,      
couple with steering difficulties.  We...determined that the
     problem was indeed the rudder and in need of immediate
     inspection...
          The actions were taken because they were absolutely
     necessary.  As master of the vessel, I felt the crew would  be
in danger had we not gone to the Punta Arenas shipyard      
immediately.
     ...
     8. Could we have proceeded to the U.S. for repairs from the
     area of the incident safely?
          Absolutely not.  I believe the most prudent decision   
was to proceed to Punta Arenas.  After we discovered that   the
temporary repair to be ineffective it was necessary for     us to
use the Talcuano drydock to have the rudder put back   in a safe
operational condition.

     Additional correspondence dated February 14, 1994 from the
master states as follows:

     Regarding:  Rudder Failure on 6/24/93

     At approximately 2000 on June 24th 1993 the AMERICAN DYNASTY
     experienced partial rudder failure due to external forces of
     nature...

     Regarding:  Shattering of Sonar Dome on 9/24/93

     At approximately 2137 on September 24th 1993 the AMERICAN
     DYNASTY experienced the loss of the sonar dome.  The bow    

                              - 3 -

     thruster room, which provides physical access to the sonar,
     was taking on water.  It was necessary to use emergency     
water pumps to correct for flooding.  The vessel was   definitely
in an emergency state.

     The record includes certain sheets which appear to be parts
of the vessel's log.  

     The sheet for June 24, 1993 states in pertinent part as
follows:

     2000 ... position: Lat: 53-47's, 74-19'w.  All secure...
     2010 Divert Vessel towards Punta Arenas due to rudder
     problems.

     The sheet for September 24, 1993 states in pertinent part as
follows:

     2000 ...Rough weather out of NW, vessel rolling/pitching    
mod.-heavy fishing  All secure
     2137 Shattered the sonar dome.  Bow thruster spare is taking
     on water.  Steaming to Concepcion Channel to seek      
shelter...& access [sic] damage.

ISSUE:

     Whether duty on certain items is subject to remission under
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 


                              - 4 -

established by good and sufficient evidence to qualify for
remission:
          1. a casualty occurrence;
          2. an unsafe and unseaworthy condition;
          3. the inability to reach the port of destination without
foreign repairs.

     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.

     After a consideration of the record, we find that the
applicant has not presented good and sufficient evidence that the
vessel was compelled by stress of weather or other casualty to make
the subject repairs in order to secure the safety and seaworthiness
of the vessel to enable her to reach her port of destination. 
Stated more succinctly, the applicant has not established that
casualties occurred.  We use the plural of the word "casualty"
because the record indicates that the crew of the vessel became
aware of the problems with the rudder and the sonar dome at two
different times which were three months apart.  The record does not
indicate how the damage which necessitated the repairs occurred. 
The record does not include adequate documentation upon which we
can conclude that the repairs were necessitated by a casualty, as
that term is described and defined above.  The statements of the
master and the excerpts 

                              - 5 -

from the vessel's log are far from adequate to meet the good and
sufficient evidence standard.  

     We note additionally that it is not clear from the record that
items two and three of the three-part test stated above have been
satisfied by good and sufficient evidence.  In a case such as this,
the record will frequently include a report of the U.S. Coast
Guard, a classification society, or a surveyor, indicating that the
vessel was in an unsafe and unseaworthy condition and that rerpairs
were necessary before it could proceed.

HOLDING:

     The applicant has not presented good and sufficient evidence
that it is entitled to remission of duties pursuant to 19 U.S.C.
1466(d)(1).  Accordingly, the application is denied.



                              Sincerely,



                              Arthur P. Schifflin
                              Chief
                              Carrier Rulings Branch