HQ 112382: Vessel Repair Entry No. C20-0037425-9; S/S ULTRASEA, Voyage 49; Application; Casualty; Heavy Weather; 19 U.S.C. 1466; 19 CFR 4.14(d) Dear Sir:

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 112382

                        February 25, 1993

VES-13-18-CO:R:IT:C 112382 BEW

CATEGORY:  Carriers

Regional Director
Commercial Operations Division
New Orleans, Louisiana 70130-2341

RE:  Vessel Repair Entry No. C20-0037425-9; S/S ULTRASEA, Voyage
     49; Application; Casualty; Heavy Weather; 19 U.S.C. 1466; 19
     CFR 4.14(d)
     
Dear Sir:

     This is in response to your memorandum dated July 10, 1992,
that forwards for our review an application for relief from
duties filed in conjunction with the above referenced vessel
repair entry.  

FACTS:

     The S/S ULTRASEA is a U.S.-flag vessel owned by Bankers
Trust Co. of New York, New York.  The subject vessel underwent
foreign repairs during the period of February 7 through March 1,
1992.  After the completion of the repairs the vessel arrived in
the United States at the port of New Orleans, Louisiana, on 
March 18, 1992.  Vessel repair entry No. C20-0037425-9 was timely
filed on March 23, 1992.  An application for relief which was
timely filed on May 15, 1992, requested remission of duty on the
basis of a casualty.

     Submitted with the application were various invoices
covering the work in question.  The applicant states that the
vessel encountered severe weather conditions while enroute from
New Orleans, Louisiana, to Estonia during the period of
January 11 through January 14, 1992, resulting in heavy weather
damage to the vessel's rudder.  It claims that foreign repairs
became necessary immediately to ensure the safety and
seaworthiness of the vessel.  The applicant has submitted copies
of relevant pages from the ship's log containing the sea
conditions on January 11 through January 14, 1992.

     In addition, the application contains internal documents
relating to the damage, the Master's affidavit, USCG Form 2692
Marine Notice of Accident report, USCG Form 835 Marine Inspectors
 Report, dated February 3, 1992, and ABS surveys relating to the
alleged casualty. 

     Specifically, you referred for our consideration the
invoices generated by the alleged casualty.

ISSUE:
     
     Whether sufficient evidence is presented to establish that
foreign repairs were necessitated by a "casualty" which is
remissible under the vessel repair statute (19 U.S.C.
1466)(d)(1).

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 the alleged casualty.

     It is clear from the evidence submitted with the application
that on January 11 through January 14, 1992, the vessel
encountered severe weather conditions.  The vessel's log shows
that on the said dates the vessel was rolling and pitching in
rough seas and swells, and taking on green water over the port
side.  The log also shows that the vessel encountered
Northwesterly Force 7 and 8 winds and 15 to 18 feet swells.  On
January 14, 1992, the log shows that at 09:00 hours the "vessel
vibration has noticeably increased above normal".  The applicant
alleges that on January 29, 1992, after the vessel arrived in  Estonia and after the cargo had been discharged, the vessel was
inspected for damage from the heavy seas and swells, and that
from a visual inspection it was observed that the steering gear 
had dropped.  Testing showed signs of rudder damage.  It further
alleges that because no repair facilities were available that
vessel proceeded under U.S. Coast Guard authorization to Poland
for repairs.

     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."

     The ABS Report No. GD1228, dated February 29, 1992, reports
that the vessel suffered damage to her rudder and pintle as a
result of heavy weather damage.  The file also contains evidence  that the vessel owners notified the USCG OCMI of the casualty and
USCG permitted that vessel to proceed to Poland for repairs due
to the unavailability of repair facilities in Estonia to do the
repair work.

     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
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).

HOLDING:

     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.  

                                     Sincerely,



     

                                     Acting Chief
                                     Carrier Rulings Branch