VES-13-18 CO:R:IT:C 112242 MLR

Deputy Assistant Regional Commissioner
Commercial Operations
423 Canal Street
New Orleans, Louisiana 70130-2341

RE: Vessel Repair; 19 U.S.C. 1466(d)(1); Application for Relief; Casualty; Severe Weather; Vessel Repair Entry No. C20- 0037402-8; S/S ULTRASEA V-133b

Dear Sir:

This is in reference to your memorandum of May 7, 1992, which forwards for our consideration the above-referenced Application for Relief filed by Sharon Steele Doyle, on behalf of American Maritime Transport, Inc.

FACTS:

The record reflects that the subject vessel, the S/S ULTRASEA, arrived at New Orleans, Louisiana, on December 25, 1991. Vessel repair entry, number C20-0037402-8, was filed on December 31, 1991, indicating work performed on the vessel in Singapore. An application for relief was filed on February 24, 1992.

The applicant submits the following evidence to show repairs to the hull were necessary due to severe weather conditions: Commercial Diving Service PIE Invoice #2995/11; American Bureau of Shipping (A.B.S.) Invoice #6412851707; affidavit of Master; vessel logs; A.B.S. Report #SG72500; AMT Fax of 2-3-92; A.B.S. Fax of 2-6-92; U.S. Coast Guard (U.S.C.G.) Special Inspection Report; U.S.C.G. Form 2692; pictures of repair; sketch of damage; Marine Extended Protest; and a letter from George McShea, Vice President of Operations, American Maritime Transport, Inc.

The applicant alleges that during the period of October 12- 15, 1991, while the vessel was en route from Seattle, Washington, to Singapore, it encountered high, rough seas of 30-35 feet, and at times up to Force 10 winds. The vessel log indicates many instances where the vessel was "rolling and pitching in heavy seas." The waves and winds were very high on October 14-15, holding at Force 9 from 1600 hours, when the wind increased to Force 10 at 0600 hours on October 15. The master closed off the main deck due to boarding seas, and reduced the vessel's speed.

On October 17, when the location was Lat. 19-13 N, Long. 157-40 W, the tanks were sounded and 16 inches of water were found in the #5 starboard ballast tank. This water was pumped out and the cause was believed to be loose access plates to the tank. The tanks had been examined on prior occasions and 4-6 inches of water were found in some tanks; however, according to George McShea, this is considered an insignificant amount and normal while at sea. On October 20, a sounding of the tanks revealed 24 inches of water in the #5 starboard ballast tank. Because of the roughness of the sea, the crew could not do a visual inspection of the tank until the next day, which revealed a crack in the #5 starboard ballast tank. The crew made temporary repairs on October 24, and when the vessel reached the Eastern Special Anchorage off Singapore, both an inspector from the U.S.C.G. and a surveyor from the A.B.S. agreed that temporary repairs were required before the vessel could proceed.

A team of divers from Messrs. Commercial Diving Services Pte Ltd. welded a temporary patch of steel doubler plate over the 7 inch length vertical fracture, located at approximately 11 feet from the bottom of the vessel. The A.B.S. report recommends that the temporary repair be permanently dealt with to the Surveyor's satisfaction prior to the crediting of the next regular Drydocking Survey, but not later than October 31, 1992.

Marc A. Bayer, the Master, made a statement reporting that the fracture occurred sometime between October 12-15. The first occasion of heavy weather occurred on October 12, where the vessel encountered Force 7 Southerly winds and very high seas for a period of about 20 hours. The second incidence of heavy weather occurred from October 14-15, between Lat. 36-05 N Long. 150-08 W and Lat. 32-05 N Long. 162-57 W, where the vessel encountered Force 9 winds gusting to Force 10 at times, with seas of 30 to 35 feet. He states that it was decided to secure temporary repairs at the next port Singapore, which in his belief were necessary as a result of the heavy weather damage; he also certifies that the repairs made were required to secure the safety and seaworthiness of the vessel prior to her return to the U.S.

ISSUE:

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

LAW AND ANALYSIS:

Title 19, United States Code, section 1466, 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 foreign or coastwise trade, or vessels intended to engage in such trade.

Paragraph (1), subsection (d) of section 1466 provides that duty may also 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, these 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, 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 (ruling letter 106159, September 8, 1983).

Customs Regulations require that certain supporting evidence be submitted. 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 U.S. 19 C.F.R. 4.14(d)(1)(iii)(D)-(F). 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.

In Treasury Decision 78-180, we set 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). We held that winds of force 9 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.

The master's statement certifies that the vessel encountered heavy weather. The vessel log indicates ample evidence of rough weather and winds of up to Force 10. It is therefore clear from the evidence 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 application for relief is granted.

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. The application for relief is granted.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch