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