HQ 112651: Vessel Repair; 19 U.S.C. 1466; Application; ABS Survey; Scavenger Cleaning; Heavy Weather Damage; Cleaning; Vessel Repair Entry No. C27-0082332-4 Date of Entry: December 21, 1992 Date of Arrival: December 19, 1992 Port of Arrival: Los Angeles, California Vessel: PRESIDENT JACKSON

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 112651

                            May 25, 1993

VES-13-18-CO:R:IT:C  112651 DEC

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; Application; ABS Survey;
     Scavenger Cleaning; Heavy Weather Damage; Cleaning; 
     Vessel Repair Entry No. C27-0082332-4
     Date of Entry:  December 21, 1992
     Date of Arrival:  December 19, 1992
     Port of Arrival:  Los Angeles, California
     Vessel:  PRESIDENT JACKSON


Dear Sir:

     This letter is in response to your memorandum dated March 25,
1993, which forwards for our consideration an application for relief
from vessel repair duties filed in connection with the above-
referenced vessel.


FACTS:
 
     The record reflects that the PRESIDENT JACKSON, an American-
flag vessel, arrived at Los Angeles, California, on December 19,
1992.  Vessel repair entry, number C27-0082332-4, was filed on
December 21, 1992, indicating that work was performed on the vessel
while in Yokohama, Kobe, and Kao-Hsiung.  An application for relief
from the assessment of vessel repair duties was timely filed on
March 5, 1993, after an extension to file proof of costs was
granted.  Various inspection and repair costs are claimed to be
duty-free because they were the result of heavy-weather damage.

     The applicant has submitted a copy of the vessel's log from
November 23, 1992, a statement from the vessel's master detailing
the damage, as well as all the relevant invoices from surveys and
repairs performed on the subject vessel.  The vessel log indicates
that the vessel encountered force eleven winds for approximately
twelve hours on November 23, 1992.  The notes made in the log
indicate that at various times the vessel was pitching heavily with
water over the deck.
                                 -2-

     The following items have been submitted for our determination:

     Item       Spreadsheet          Description

      01        ABS                  ABS Survey
      02        Yoko Engineering     Hawse Pipe Repair
      05        ABS                  ABS Survey
      06        OMI Engineering      Hawse Pipe Repair
      08        Hong Yang Marine     Heavy Weather Damage Repair
      12        Hong Tah Marine      Scavenger Cleaning
      13        Hong Tah Marine      Forepeak Area Cleaning

     The applicant's request for remission from vessel repair duties
with respect to item twelve is based on the applicant's contention
that scavenger cleaning is a necessary operation for routine
inspections.  The remainder of the items relate to inspections and
repairs that are, allegedly, attributable to the heavy-water damage
of November 23, 1993.  Our ruling on the above-mentioned matters is
set out below.


ISSUE:

     1.  Whether sufficient evidence is provided to substantiate the
claim that the repairs were necessitated by weather-related damage
and should, therefore, be exempt from vessel repair duties.

     2.    Whether the expense associated with the scavenger
cleaning costs is dutiable pursuant to 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 fifty 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.

Heavy Weather Damage

     Title 19, United States Code, subsection 1466(d)(1), states
that the Secretary of the Treasury is authorized to remit or refund
such duties if the owner or master of the vessel provides good and
sufficient evidence that the vessel was compelled by stress of
weather or other casualty to put into such foreign port to make
repairs to secure the safety and seaworthiness of the vessel to
enable her to reach her port of destination. 

     The term "casualty" as it is used in the statute, has been
interpreted as something which, like stress of weather, comes with
unexpected force or violence, such as fire, explosion, 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
                                 -3-

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.  See Headquarters Ruling
106159 (Sept. 8, 1983).

     Customs Regulations require that certain supporting evidence be
submitted with an application for relief for damages resulting from
stress of weather.  This evidence includes photocopies of the
relevant parts of the vessel's logs, certifications 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) (1992).

     In Treasury Decision 78-180, Customs established 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). 
Customs held that winds of force nine on the Beaufort Scale, a
numerical scale rating winds according to ascending velocity from
zero (calm) to twelve (hurricane), accompanied by a reasonable
description of the conditions and verified as required in the
regulations, raise a presumption that damages caused were due to
stress of weather (see Rene de Kerchove, International Maritime
Dictionary 52 (2nd Ed. 1961).

     The vessel log from November 23, 1992, indicates that the
vessel encountered force nine or greater winds for nearly twenty-
four hours and noted that the vessel pitched and rolled heavily. 
Additionally, it was reported in the log that the hawse pipe buckled
and was punctured.  Customs is satisfied that the proof submitted
with respect to the repairs performed on the hawse pipe were
necessitated by the heavy weather the PRESIDENT JACKSON encountered
on November 23, 1992 (Yokohama Engineering Works, Ltd. Invoice
2F428).  Consequently, remission with respect to this invoice is
granted.  Further, since the ABS heavy weather damage survey is
directly related to the heavy weather damage, the cost associated
with both parts of the ABS survey (Report No. Y026895 corresponding
with ABS invoices numbered 6002199380 and 6002199431) is remitted.

     Similarly, the costs associated with item #6, (OMI Engineering
Company, Ltd. invoice number 92083), item #8 (Hong Yang Marine
Service Company, Ltd.), and item #13 (Hong Tah Marine Service &
Engineering Company, Ltd.) are not subject to duty because the
applicant has met its burden of demonstrating that these items  were
sufficiently connected with the casualty event (heavy weather
damage) that the vessel encountered on November 23, 1992.  In
support of their application of relief, the vessel operator has
submitted the vessel's log, a statement from the master, and the
corresponding invoices for the work performed. 

Air Scavenger Cleaning

     The applicant has submitted an invoice from Hong Tah Marine
                                 -4-

Service and Engineering Company, Ltd. for the cleaning of air
scavenger spaces.  While 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 (Headquarters
Ruling 110841 (May 29, 1990), Customs, however, does consider work
performed to restore a part to good condition following
deterioration or decay to be a maintenance operation within the
meaning of the term repair as it is used in the vessel repair
statute (Headquarters Ruling 196543 (Feb. 27, 1984).  

     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).

     The applicant's conclusion that the cleaning of air scavenger
spaces is not subject to duty simply because no subsequent repairs
were performed is untenable.  The applicant attempts to characterize
the cleaning of air scavenger spaces as a 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, that may only be corrected by
cleaning the air scavenger spaces (Headquarters Ruling 111700 (Nov.
19, 1991).  Therefore, the cleaning of air scavenger spaces is a
dutiable maintenance operation.

HOLDING:

     Following a thorough review of the evidence submitted and after
a full review of the applicable law and precedents, we have
determined that this application for relief from vessel repair
duties should be granted, in part, and denied, in part, as detailed
in the Law and Analysis section of this ruling.

                                Sincerely,



                                Acting Chief