HQ 112651

May 25, 1993

VES-13-18-CO:R:IT:C 112651 DEC

CATEGORY: Carriers

Deputy Regional Director

Commercial Operations

Pacific Region

One World Trade Center

Long Beach, California 90831

RE: Vessel Repair; 19 U.S.C. 1466; Application; ABS Survey;

Scavenger Cleaning; Heavy Weather Damage; Cleaning;

Vessel Repair Entry No. C27-0082332-4

Date of Entry: December 21, 1992

Date of Arrival: December 19, 1992

Port of Arrival: Los Angeles, California

Vessel: PRESIDENT JACKSON

Dear Sir:

This letter is in response to your memorandum dated March 25,

1993, which forwards for our consideration an application for relief

from vessel repair duties filed in connection with the above-

referenced vessel.

FACTS:

The record reflects that the PRESIDENT JACKSON, an American-

flag vessel, arrived at Los Angeles, California, on December 19,

1992\. Vessel repair entry, number C27-0082332-4, was filed on

December 21, 1992, indicating that work was performed on the vessel

while in Yokohama, Kobe, and Kao-Hsiung. An application for relief

from the assessment of vessel repair duties was timely filed on

March 5, 1993, after an extension to file proof of costs was

granted. Various inspection and repair costs are claimed to be

duty-free because they were the result of heavy-weather damage.

The applicant has submitted a copy of the vessel\'s log from

November 23, 1992, a statement from the vessel\'s master detailing

the damage, as well as all the relevant invoices from surveys and

repairs performed on the subject vessel. The vessel log indicates

that the vessel encountered force eleven winds for approximately

twelve hours on November 23, 1992. The notes made in the log

indicate that at various times the vessel was pitching heavily with

water over the deck.

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The following items have been submitted for our determination:

Item Spreadsheet Description

01 ABS ABS Survey

02 Yoko Engineering Hawse Pipe Repair

05 ABS ABS Survey

06 OMI Engineering Hawse Pipe Repair

08 Hong Yang Marine Heavy Weather Damage Repair

12 Hong Tah Marine Scavenger Cleaning

13 Hong Tah Marine Forepeak Area Cleaning

The applicant\'s request for remission from vessel repair duties

with respect to item twelve is based on the applicant\'s contention

that scavenger cleaning is a necessary operation for routine

inspections. The remainder of the items relate to inspections and

repairs that are, allegedly, attributable to the heavy-water damage

of November 23, 1993. Our ruling on the above-mentioned matters is

set out below.

ISSUE:

1\. Whether sufficient evidence is provided to substantiate the

claim that the repairs were necessitated by weather-related damage

and should, therefore, be exempt from vessel repair duties.

2\. Whether the expense associated with the scavenger

cleaning costs is dutiable pursuant to 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 fifty 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.

Heavy Weather Damage

Title 19, United States Code, subsection 1466(d)(1), states

that the Secretary of the Treasury is authorized to remit or refund

such duties if the owner or master of the vessel provides good and

sufficient evidence that the vessel was compelled by stress of

weather or other casualty to put into such foreign port to make

repairs 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, explosion, 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

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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 Headquarters Ruling

106159 (Sept. 8, 1983).

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, certifications 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) (1992).

In Treasury Decision 78-180, Customs established 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).

Customs held that winds of force nine 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 (see Rene de Kerchove, International Maritime

Dictionary 52 (2nd Ed. 1961).

The vessel log from November 23, 1992, indicates that the

vessel encountered force nine or greater winds for nearly twenty-

four hours and noted that the vessel pitched and rolled heavily.

Additionally, it was reported in the log that the hawse pipe buckled

and was punctured. Customs is satisfied that the proof submitted

with respect to the repairs performed on the hawse pipe were

necessitated by the heavy weather the PRESIDENT JACKSON encountered

on November 23, 1992 (Yokohama Engineering Works, Ltd. Invoice

2F428). Consequently, remission with respect to this invoice is

granted. Further, since the ABS heavy weather damage survey is

directly related to the heavy weather damage, the cost associated

with both parts of the ABS survey (Report No. Y026895 corresponding

with ABS invoices numbered 6002199380 and 6002199431) is remitted.

Similarly, the costs associated with item #6, (OMI Engineering

Company, Ltd. invoice number 92083), item #8 (Hong Yang Marine

Service Company, Ltd.), and item #13 (Hong Tah Marine Service &

Engineering Company, Ltd.) are not subject to duty because the

applicant has met its burden of demonstrating that these items were

sufficiently connected with the casualty event (heavy weather

damage) that the vessel encountered on November 23, 1992. In

support of their application of relief, the vessel operator has

submitted the vessel\'s log, a statement from the master, and the

corresponding invoices for the work performed.

Air Scavenger Cleaning

The applicant has submitted an invoice from Hong Tah Marine

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Service and Engineering Company, Ltd. for the cleaning of air

scavenger spaces. While the Customs Service has consistently held

that cleaning is not dutiable unless it is performed as part of, in

preparation for, or in conjunction with dutiable repairs or is an

integral part of the overall maintenance of the vessel (Headquarters

Ruling 110841 (May 29, 1990), Customs, however, does consider work

performed to restore a part to good condition following

deterioration or decay to be a maintenance operation within the

meaning of the term repair as it is used in the vessel repair

statute (Headquarters Ruling 196543 (Feb. 27, 1984).

The dutiability of maintenance operations has undergone

considerable judicial scrutiny. The United States Court of Customs

and Patent Appeals, in ruling that the term \"repair\" as used in the

vessel repair statute includes \"maintenance painting,\" gave seminal

recognition to the dutiability of maintenance operations. E.E.

Kelly & Co. v. United States, 55 Treas. Dec. 596, T.D. 43322

(C.C.P.A. 1929). The process of chipping, scaling, cleaning, and

wire brushing to remove rust and corrosion that results in the

restoration of a deteriorated item in preparation for painting has

also been held to be dutiable maintenance. States Steamship Co. v.

United States, 60 Treas. Dec. 30, T.D. 45001 (Cust. Ct. 1931).

The applicant\'s conclusion that the cleaning of air scavenger

spaces is not subject to duty simply because no subsequent repairs

were performed is untenable. The applicant attempts to characterize

the cleaning of air scavenger spaces as a simple cleaning needed

only for inspection of the engine valves. This characterization

fails, however, to include the threat of fire or explosion posed by

the failure to properly maintain the scavenger spaces. It further

fails to note the decline in efficiency of the engines that results

from the collection of the carbon and oil deposits in the air

scavenger spaces. As stated in our previous rulings, the collection

of carbon and oil deposits results in a deterioration, as manifested

in the safety and efficiency problems, that may only be corrected by

cleaning the air scavenger spaces (Headquarters Ruling 111700 (Nov.

19, 1991). Therefore, the cleaning of air scavenger spaces is a

dutiable maintenance operation.

HOLDING:

Following a thorough review of the evidence submitted and after

a full review of the applicable law and precedents, we have

determined that this application for relief from vessel repair

duties should be granted, in part, and denied, in part, as detailed

in the Law and Analysis section of this ruling.

Sincerely,

Acting Chief