HQ 112200: Vessel Repair; Tacoma, Washington, Vessel Repair Entry No. 110-0104243-8; dated December 27, 1991; M/V SEALAND EXPRESS Voyage 166; Application; Casualty; Heavy Weather; Survey; Evidence; Maintenance; Cleaning; Air Scavenger Spaces; 19 U.S.C 1446

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 112200

                         March 31, 1993

VES-13-18 CO:R:IT:C  112200 BEW

CATEGORY:  Carriers

Deputy Regional Director
Commercial Operations
Pacific Region
One World Trade Center
Long Beach, California 90831-0700

RE:  Vessel Repair; Tacoma, Washington, Vessel Repair Entry No.
     110-0104243-8; dated December 27, 1991; M/V SEALAND EXPRESS
     Voyage 166; Application; Casualty; Heavy Weather; Survey;
     Evidence; Maintenance; Cleaning; Air Scavenger Spaces; 19
     U.S.C 1446

Dear Sir:

     This is in reference to a memorandum that transmitted an
application for relief from duties filed by Sea-Land Service, Inc.,
in relation to the above-referenced vessel repair entry, dated
December 27, 1991.  The entry and the application were timely
filed.  The vessel arrived at the port of Tacoma, Washington, on
December 22, 1991.

FACTS:
          
     The M/V SEALAND EXPRESS is a U.S.-flag vessel owned by Sea-
Land Services, Inc.  The record shows that the shipyard work in
question was performed on the subject vessel in Tokyo, Japan,
during the period of November 23 through November 28, 1991, and in
Kaohsiung, R.O.C., on December 8, 1991. 

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

     Item #     JCF#                 Vendor
     
     1         MHI                   doubler plate repairs

     2         Posa Marine           inspection doubler repairs
     
     3         ABS survey            inspection doubler repairs
     16        OMI Engr.             gangway repairs

     11                              Cleaning of air scavenger
                                     spaces

     The applicant states that the vessel encountered severe
weather conditions while enroute from Tacoma, Washington to Tokyo
resulting in heavy weather damage to the Deck Doubler Plate.  It
claims that foreign repairs became necessary immediately to ensure
the safety and seaworthiness of the vessel.  The applicant has also
submitted copies of relevant pages from the ship's log containing
the sea conditions on November 15 through November 22, 1991.  A
Marine Note of Protest was filed on November 25, 1991, when the
vessel arrived at Tokyo, Japan.  The file indicates that the vessel
was inspected for heavy weather damage by the American Bureau of
Shipping (ABS) in Yokohama, Japan.

     The applicant further claims that cleaning of the air
scavenger spaces is not a maintenance and repair operation.
It provides the following rational to support its position:

          The "scavenging belt" in a slow speed diesel engine is
     a trunk-like, fabricated steel chamber which is permanently
     attached to and an essential part of the engine.  It receives
     the discharge air from the turbo-chargers and delivers the
     charge air to each cylinder of the engine via "reed valves"
     and the intake ports.   (See attached diagram).  In addition,
     air from the piston underside is pumped into the scavenging
     belt via "reed values" to supplement turbo-charge delivered
     air.  This air enters the cylinders via inlet ports uncovered
     when the piston gets to the bottom end of its stroke and
     serves to  "scavenge" the burnt gases out of the cylinder,
     thus cleaning the cylinder of spent energy and at the same
     time providing a clean air charge for the next fuel injection
     to use in its burning.  During this process, which is repeated
     every revolution  (approximately 98 per minute at sea), some
     gases containing unburnt carbon may be left and deposited in
     the scavenging spaces.  Thus, the necessity for cleaning
     periodically is dependent upon the amount and rapidity of the
     accumulation.  This cleaning is just that, cleaning to (a)
     prevent the possibility of a fire starting in the space, (b)
     lessen the possibility of a "backfire" of a cylinder with
     resultant damage and (c) assist in clean burning of fuel in
     the engine to reduce air pollution.

     The applicant alleges that this is strictly a cleaning
operation performed to allow routine inspections of the engine
cylinders of on an "as needed" basis.  This cleaning is more or
less akin to cleaning engine room bilges following an oil or fuel
spill to cure a fire hazard and provide a clean atmosphere for men
and machinery.

     These carbon deposits and other oily deposits in the scavenger
spaces may result in fire or explosion.  They also reduce the
efficient operation of the engine.  Diesel engine maintenance
manuals therefore require periodic cleaning of the scavenger spaces
to permit the safe and efficient operation of the vessel.  The
maintenance of a scavenger space involves removing access plates
and scraping, wire brushing, and wiping the inside of the space. 
This operation is labor intensive and would take a single worker
up to two working days to clean a single cylinder.

     The applicant claims that the cleaning of the air scavenger
spaces is not subject to duty under  1466.  

ISSUES:

     1.  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).

     2. Whether removing carbon and oil deposits from diesel engine
     air scavenger spaces constitutes a nondutiable cleaning or a
     dutiable maintenance operation under 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)).

     Treasury Decision 78-180, sets out guidelines to be used when
relief is requested on the basis that the vessel encountered high
winds (T.D. 78-180, 12 Cust. B. & Dec. 382 (1978)).  It was held
that evidence of winds of force 9 on the Beaufort Scale, a
numerical scale rating winds according to ascending velocity from
zero (calm) to twelve (hurricane), verified as required in the
regulations, and accompanied by a reasonable description of the  conditions, raise a presumption that severe weather conditions
caused the damage. (See also Rene de Kerchove, International
Maritime Dictionary 52 (2nd Ed. 1961).  

     The applicant claims that the invoices submitted relate to
the repairs necessary because of a casualty.

     It is clear from the evidence submitted with the application
that on November 15 through November 22, 1991, the vessel
encountered severe weather conditions.  The vessel's log shows that
on the said dates the vessel was rolling and pitching in strong
gale head winds, the seas were very rough, and that the vessel was
pitching in very rough northwest seas and swells.  The log also
shows that the vessel encountered Force 7 through Force 9 winds. 
The applicant alleges that damage to items 1, 2, and 3 was the
direct result of the heavy weather.  It also alleges that the
gangway was also damaged by heavy weather caused by force 7, 8, and
9 winds.  The ABS surveyed the vessel for heavy weather damage when
it arrive in Tokyo on November 23, 1991.  ABS report No. YO26356
indicates that upon examination the butt weld of the main deck
main-reinforcement inboard strap was fractured.  This report does
not contain any report on damage to the starboard gangway.   

     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."

     It is clear from ABS report No. YO26356 that the vessel
suffered damage to the butt weld of the main deck main-
reinforcement.  The inboard strap was fractured because of heavy
weather.  This report does not contain any report on damage to the
starboard gangway.  The entry shows that repairs to the gangway
were made on December 15, 1991, when the vessel was at the port of
Kobe.  The file does not contain evidence that the vessel owners
notified the USCG OCMI of the damage to the gangway or the USCG
permitted that vessel to proceed from Tokyo to Kobe for repairs.

     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). 

     Accordingly, we found from the evidence submitted with the
application that the damage was caused by a casualty, and that
repairs to the butt strap, items 1, 2, and 3 were necessitated by
heavy weather damage.  However, with regard to the gangway repairs,
we find no evidence the USCG permitted the vessel to proceed
between two foreign locations in a damaged condition.   The applicant has submitted evidence sufficient to substantiate
its claim for remission under  1466(d)(1) with respect to items 1,
2, and 3.  The evidence is insufficient to sustain a finding of a
casualty as to the gangway repairs, item No. 16.  We find this item
to be dutiable.

Item No. 11 - Cleaning of Air Scavenger Spaces

     In analyzing the dutiability of foreign vessel work, the
Customs Service has consistently held that cleaning is not dutiable
unless it is performed as part of, in preparation for, or in
conjunction with dutiable repairs or is an integral part of the
overall maintenance of the vessel.  (E.g., Headquarters Ruling
Letter 110841, dated May 29, 1990 (and cases cited therein)).  The
Customs Service considers work performed to restore a part to good
condition following deterioration or decay to be maintenance
operations within the meaning of the term repair as used in the
vessel repair statute.  (See generally,  Headquarters Ruling Letter
106543, dated February 27, 1984; C.I.E. 142/61, dated February 10,
1961.)  

     The dutiability of maintenance operations has undergone
considerable judicial scrutiny.  The United States Court of Customs
and Patent Appeals, in ruling that the term repair as used in the
vessel repair statute includes "maintenance painting," gave seminal
recognition to the dutiability of maintenance operations.  E. E.
Kelly & Co. v. United States, 55 Treas. Dec. 596, T.D. 43322
(C.C.P.A. 1929).  The process of chipping, scaling, cleaning, and
wire brushing to remove rust and corrosion that results in the
restoration of a deteriorated item in preparation for painting has
also been held to be dutiable maintenance.  States Steamship Co.
v. United States, 60 Treas. Dec. 30, T.D. 45001 (Cust. Ct. 1931).

     Most recently, the United States Customs Court examined
whether the scraping and cleaning of Rose Boxes constituted
dutiable repairs.  Northern Steamship Company v. United States, 54
Cust. Ct. 92, C.D. 1735 (1965).  Rose Boxes are parts fitted at the
ends of the bilge suction to prevent the suction pipes from being
obstructed by debris.  The court determined that the removal of
dirt and foreign matter from the boxes did not result in the
restoration of the boxes to good condition following deterioration
and consequently held that the work was not subject to vessel
repair duties.  Id. at 99.  

     The precise issue presented is whether the cleaning of air
scavenger spaces may be characterized as simple cleaning or as
maintenance, not whether cleaning or maintenance operations are
dutiable or non-dutiable.   
     The applicant attempts to characterize the cleaning of air
scavenger spaces as "simple" cleaning needed only for inspection
of the engine valves.  This characterization fails, however, to
include the threat of fire or explosion posed by the failure to
properly maintain the scavenger spaces.  It further fails to note
the decline in efficiency of the engines that results from the
collection of the carbon and oil deposits in the air scavenger
spaces.  As stated in our previous rulings, the collection of
carbon and oil deposits results in a deterioration--as manifested
in the safety and efficiency problems--of the air scavenger spaces
that may only be corrected by cleaning the air scavenger spaces. 
(See generally Headquarters Ruling Letter 111700, dated November
19, 1991.)  We therefore reaffirm our position that cleaning air
scavenger spaces is a maintenance operation that is subject to duty
under 19 U.S.C.  1466.

     The Customs Service first addressed the issue of cleaning air
scavenger spaces in Headquarters Ruling Letter 110911 BEW, dated
December 3, 1990.  The applicant has failed to cite a ruling or to
demonstrate otherwise that the Customs Service had in fact
established a position on the dutiability under 19 U.S.C.  1466 of
the cleaning of air scavenger spaces prior to Headquarters Ruling
Letter 110911.  Moreover, as shown in the previous paragraph, we
do not believe that the applicant has demonstrated that the holding
in Headquarters Ruling Letter 110911 deviates from existing
judicial decisions or results in a reversal or modification of any
of the existing administrative rulings.    

     The applicant states that "it is hoped that your find as you
have done prior to 8/90, a cleaning activity and duty free". 
Headquarters Ruling Letter 110911 was issued in response to an
application for relief forwarded by the New York Vessel Repair
Liquidation Unit (VRLU) following which we learned that from 1982
to 1990 the San Francisco VRLU had not been assessing duty whereas
the two other regional VRLU's were.  Absent a ruling letter or a
published statement of position, we hold that the applicant cannot
rely on determinations made by the San Francisco VRLU to establish
a position of the Customs Service.  (See Superior Wire v. United
States, 7 Fed. Cir. (T) 43, 45-46, 867 F.2d. 1409, 1412-13 (1989).)

HOLDINGS:


     1. The evidence presented is sufficient to prove that the
     foreign repairs performed on the subject vessel were
     necessitated by a casualty occurrence, thus warranting  remission pursuant to 19 U.S.C. 1466 with respect to items 1,
     2, and 3.  With regard to item no. 16, gangway repair, the
     evidence is insufficient to sustain that this repair was
     necessitated by a casualty occurrence.  Accordingly, we find
     this item to be is dutiable.  The application is denied as to
     the cost for item No. 16.  

     2.  The removal of carbon and oil deposits from the main
     engine scavenger spaces is a maintenance operation, the cost
     of which is subject to duty under 19 U.S.C.  1466.  

                                     Sincerely, 




                                     Acting Chief