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HQ 111244

October 25, 1990

VES-13-18 CO:R:P:C 111244 JBW


Deputy Assistant Regional Commissioner
Commercial Operations c/o Regional Commissioner
New Orleans, LA 70130-2341

RE: Vessel Repair; LASH Barges; Casualty; 19 U.S.C. 1466; 19 C.F.R. 4.14(d)(1)(G)(iii); Protest No. 5301-81-000107.

Dear Madam:

This letter is in response to your memorandum of July 25, 1990, which forwards for our review and ruling the above- referenced protest from the assessment of vessel repair duties.


The above protest covers foreign repairs to a United States flag Lighter Aboard Ship (LASH) barge owned by Central Gulf Lines, Inc., of New Orleans, Louisiana. The record reflects that shipyard work was performed to LASH barge CG 69 in Bremen, West Germany. The entry was liquidated on December 26, 1980. The petitioner submits as evidence of casualty a signed, undated statement that the barge was surveyed on September 26, 1978, and that it was seaworthy at the time of loading. The petitioner also submits shipyard invoices for the foreign repairs. No statement was submitted regarding the seaworthiness of the vessel at the time of repairs.


Whether evidence is presented sufficient to prove that the repairs performed on the barge for which relief is sought were necessitated by a casualty occurrence, thus warranting remission.


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. The statute provides for the 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" and were 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).

The term casualty, as it is used in the statute, has been interpreted as something that, 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. 23, 28-29, C.D. 362 (1940). In the absence of evidence of such a casualty causing event, we must consider the repair to have been necessitated by normal wear and tear. C.S.D. 89-95, 23 Cust. B. & Dec., No. 43, 4, 5 (1989).

Owing to the factors peculiar to the operation of LASH barges, the Customs Regulations allow for special standards of evidence when casualty claims are made concerning such vessels under 1466(d)(1). These regulations provide that there must be submitted evidence showing that a barge was inspected immediately prior to being loaded upon its vessel of departure from the United States, that it was found to be seaworthy at that time, that damage was discovered during the course of the foreign voyage, and that the repairs performed were necessary for the safety and seaworthiness of the barge to enable it to reach its United States port of destination. 19 C.F.R. 4.14(d)(1)(iii)(G)(1990). Documents purporting to demonstrate these elements must have been prepared at the time that barges were placed aboard for foreign departure and must have been prepared and signed by responsible persons in a position to attest to the veracity of the statements being made. Documents executed after the fact or by persons with no first-hand knowledge of the actual condition of barges immediately prior to foreign departure are of no probative value and are insufficient for purpose for which they are submitted. C.S.D. 89-95.

The Customs Service has consistently held that undated statements relating to the condition of a barge are unacceptable. There is no way for Customs to determine whether these statements were executed contemporaneously with the lading of the vessels, thus providing credible evidence, or whether they were prepared at some later date. Id. The facts presented in this case indicate that the barge was inspected on September 26, 1978. The statement relating to the condition of the barge only indicates the date of inspection, not the date that the statement was actually signed. The petitioner thus submits no evidence that the inspection statement was made at the time of loading. For this reason, we conclude that the petitioner does not meet the evidentiary requirement as established in the regulations for LASH barge casualty claims. The protest consequently is denied.


In light of the foregoing, we recommend that the protest be denied.


B. James Fritz

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