Petition for Relief; Vessel Repair Entry No. C18-0017209-5; dated January 8, 1992; M/V GREEN LAKE, V-31; Casualty; Heavy Weather; Evidence;

HQ 112396 April 15, 1993 VES-13-18 CO:R:IT:C 112396 BEW CATEGORY: Carriers Regional Director Commercial Operations Division New Orleans, Louisiana 70130-2341 RE: Petition for Relief; Vessel Repair Entry No. C18-0017209-5; dated January 8, 1992; M/V GREEN LAKE, V-31; Casualty; Heavy Weather; Evidence; Dear Sir: This is in reference to your memorandum of July 21, 1992, that forwards a Petition for Relief from duties assessed under the provisions of title 19, United States Code, section 1466, in vessel repair entry No. C18-0017209-5 relating to the M/V GREEN LAKE, Voyage 31. The vessel arrived at the port of Jacksonville, Florida, on January 6, 1992. FACTS: The GREEN LAKE is a U.S.-flag vessel owned by Central Gulf Lines, Inc. The record shows that the shipyard work in question was performed on the subject vessel in Toyohashi, Japan, during the period of December 11 through 14, 1991, and in the Panama Canal on January 1 and 2, 1992. An application for relief was timely filed by the vessel operator in which it was claimed that the vessel encountered severe weather conditions while en route to Japan, resulting in heavy weather damage to the radar system and the smoke detection system. By decision dated May 5, 1992, your office denied the application on the basis that: Your application for relief does not contain evidence linking the severe weather to the repair items. In fact, based on the limited amount of supporting evidence, the damage does not appear to be a result of severe weather. Therefore, your application for relief from duty due to a severe weather casualty is denied. The petition for relief centers primarily around the repairs to the radar system, smoke detection system, the radio antenna coupler and a propeller inspection. The petitioner claims that the vessel encountered severe weather while en route to Japan from the United States; however, its application was predicated on emergency repairs. It alleges that during the course of the voyage the vessel's K/H radar (X- band) system, radio antenna coupler, and smoke detection system sustained damage forcing the vessel to proceed to Japan in less than safe condition. The petitioner also alleges that the inspection to the propeller became necessary to determine the extent of damage which had occurred while the vessel was en route to Japan after apparently being fouled with fishing nets or other debris. In your ruling you considered the dutiability of the smoke detection and radar systems. We are now requested to reconsideration the dutiability of those items, as well as the radio antenna coupler and the propeller inspection. 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 which 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 which, 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 enable the vessel to reach her port of destination. 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 for damages 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 master's statement certifies that on December 7, 8, and 9, 1991, the vessel encountered the severest of winter storms while it was en route from California to Japan. During this time it encountered sustained winds of 75 knots with gusts to 90 knots, sea/swell heights in excess of 60 feet, and heavy rain and snow. On December 10-11, an inspection of the vessel revealed damage to the smoke detecting system, the radar scanner and the high frequency transmitter coupler. The masters states that in the case of the smoke detection system, the snow and ice built- up in the vents causing damage to the system. It states that upon arrival in Japan emergency repairs were made on the vessel's smoke detection system, X-band (3mc) radar scanner, and the external radio antennae coupler. It states that due to the unavailability of parts, temporary incomplete repairs were made to these three emergency-repair items. The repairs were completed in Panama and the U.S. between January 1 and 22, 1992. The vessel's log indicate rough and boisterous weather and force 9 to Force 12 winds. The evidence supports the petitioners claim that damage was caused by severe weather conditions and that the vessel was in need of repairs to secure her safety and seaworthiness. Accordingly, the petition is granted as to cost of the repairs performed in Japan on the smoke detection system, the radar system, the external radio antennae coupler, and the propeller inspection. HOLDING: The evidence presented is sufficient to substantiate that the foreign repairs on the subject vessel were necessitated by a casualty occurrence, thus warranting remission under 19 U.S.C. 1466. The petition is granted as set forth in the law and analysis above. Sincerely, Acting Chief Carrier Rulings Branch