VES-13-18-CO:R:IT:C 112144 MLR
Deputy Assistant Regional Commissioner
Commercial Operations
423 Canal Street
New Orleans, Louisiana 70130-2341
RE: Vessel Repair; 19 U.S.C. 1466(d); Vessel Repair Entry No.
C20-0012282-3; Petition for Review; Casualty; Crankcase
"Explosion"; Piston Skirt; M/V PRIDE OF TEXAS V-41
Dear Sir:
This is in response to your memorandum of March 9, 1992,
regarding the petition for review of HQ 111554, submitted by
Sharon Steele Doyle, Givens & Kelly, on behalf of Seahawk
Management, Inc.
FACTS:
The record reflects that the subject vessel, the M/V PRIDE
OF TEXAS, arrived at Lake Charles, Louisiana, on September 22,
1990. Vessel repair entry, number C20-0012282-3, was filed
indicating work performed on the vessel in Egypt and Portugal.
During voyage No. 40 on February 20, 1990, the subject
vessel while en route from Nacala, Mozambique, to the U.S. Gulf
sustained damage from a broken exhaust valve stem dropping into
the piston chamber. The starboard main engine was repaired in
Cape Town, South Africa, from February 26-March 4, 1990, and the
vessel returned to the U.S. on March 23, 1990.
The vessel started voyage 41, leaving the U.S. on April 18,
1990, and arriving in Alexandria, Egypt, on May 9, 1990. On May
18, 1990 the vessel proceeded to Lisbon, Portugal, for routine
shipyard work. The vessel arrived in Lisbon on May 25, 1990,
and departed on June 5, 1990. On June 6, 1990, at 23:30, the
vessel developed engine failure that required it to return to
Lisbon. The master's log and engineer's log both indicate that
the vessel experienced an "explosion" of the crank case of the
starboard main engine. Particularly, the First Assistant
Engineer had found the no. 1 right bank crankcase explosion door
blown out and lube oil coming out of the engine with part of the
piston lying on the deck beside the explosion door.
The Revised Field Survey Report, dated June 18, 1990,
signed by Ralph Whitelaw, representing vessel owners states:
For particulars of allegation as to cause of damage
found in consequence of initial casualty of 20 February
1990, reference is made to the Salvage Association
original Report of Survey No. 43.90 issued at Durban,
South Africa on 16 April 1990.
The owner's allegation as to the cause of the
additional damage found following the subsequent
casualty of 6 June 1990, as detailed in the Revised
Field Survey report dated 15 June 1990, is as follows:
That on February 1990, in consequence of the damage to
the starboard main engine cylinder head described in
the above noted original Survey Report No. 43.90, the
starboard main engine air intake and exhaust manifolds
were inundated with approximately 2000 gallons of
jacket cooling water dumped from the jacket cooling
water expansion header tank through the damaged
(fractured) cylinder head; that water ingested into the
starboard main engine outboard bank No. 1 cylinder from
the inundated air intake and/or exhaust manifold, while
in operation, transmitted a hydraulic mechanical and/or
thermal shock to the No. 1 cylinder piston assembly,
initiating the damage to that piston assembly, most
probably to the piston skirt in way of the wrist pin;
that damage to the piston skirt progressed during
subsequent operation of the engine until final failure
of the skirt occurred in operation on 6 June 1990; that
final failure of the piston skirt resulted in
misalignment of the piston assembly, seizure of the
piston, separation of the piston crown and skirt and
the consequential damage described in the Revised Field
Survey Report dated 15 June 1990; that while the exact
sequence of events cannot be precisely known, the
foregoing sequence of events is considered to be a fair
and reasonable approximation in the circumstances.
An application for relief (HQ 111554) was filed on November
21, 1990. That decision stated that the engine failure of June
1990, was not characterized as resulting from a casualty, because
it was linked to unchecked residual damage resulting from the
February 1990 breakdown, thus implying that the February 1990
repairs were improperly performed. After an extension was
granted, a petition for review was filed on January 6, 1992.
ISSUE:
Whether the evidence submitted demonstrates that damage to
the starboard main engine resulted from a casualty and is
therefore subject to remission under 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. Section 1466(d)(1) provides for remission of the above
duties in those instances where good and sufficient evidence is
furnished to show that foreign repairs were compelled by "stress
of weather or other casualty" necessary 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, or 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 (see C.S.D. 79-32). Therefore, an explosion, does not
result in an automatic determination of casualty.
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.
Petitioner argues that it supplied uncontroverted evidence
in the application for relief that a crankcase explosion damaged
the starboard main engine. Petitioner cites HQ 110002 as
authority that remission should be granted. In that case it was
held that a fire in the starboard generator qualifies as a
casualty occurrence. Petitioner equates the occurrence of a
fire, explosion, etc. to a casualty; therefore, petitioner
claims that because there was an explosion in this case, we
should consider this a casualty.
In line with this argument, petitioner cites C.S.D. 79-283
as authority that because the cause of the explosion is not
known, we should presume it was a result of a casualty
occurrence, absent any evidence of improper maintenance. In
C.S.D. 79-283, it was held that: "In the absence of any evidence
of the condition of the vessel's electrical panel prior to the
fire, or of the negligence of a responsible member, we shall rule
in accordance with the presumption stated in ORR 511-70" (i.e.,
unless it is established by the evidence that a fire was caused
by the poor condition of the vessel, it should be assumed that
the fire is the result of a casualty. The issue therefore
remains whether the evidence shows that the "explosion" occurred
because of the poor condition of the vessel, improper
maintenance, or the effects of wear and tear.
Petitioner has submitted affidavits of Fernando dos Santos
Tomas, Surveyor for the American Bureau of Shipping, and
C.M.J.T. Scott, Principal Surveyor for The Salvage Association
for Portugal. Tomas and Scott both state that from their
"personal experience and...(their) belief and knowledge" the M/V
PRIDE OF TEXAS arrived in Lisbon on June 8, 1990, "after
suffering severe damage to the starboard main engine", and that
in their "opinion...the damage sustained was not a result of
normal wear and tear and not as a result of lack of maintenance."
We find that the Revised Field Survey Report is of more
probative value than the two affidavits taken over one year after
the incident. The report indicates that the cause of the
explosion can reasonably be approximated to the engine damage
which occurred February 1990. In HQ 111533, we held that the
February 1990 incident was a result of wear and tear. Therefore,
we conclude that the explosion occurred as a result of the engine
being in poor condition.
In view of the fact that the damage may not have been
preventable, we cite C.I.E. 777/62. In that case, a fire started
when an open shunt field circuit occurred in the shunt field of a
direct current motor. The short circuit caused the motor to
"runway" and the motor armature reached a destructive rotational
speed causing a fire. The construction of the motor armature and
position of the coil windings made it impossible to prevent or
detect an internal open in a shunt field winding. Customs held
that the fire started because of improper maintenance and did not
constitute a casualty.
HOLDING:
Because the damage to the vessel was a result of the vessel
being in poor condition, the foreign work in question constitutes
dutiable repairs.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch