Protest; Vessel Repairs; Non-compliance With Protest Requirements

HQ 110758 July 25, 1990 VES-13-18 CO:R:P:C 110758 BEW CATEGORY: Carriers Chief, Residual Liquidation Branch U.S. Customs Service 6 World Trade Center New York, New York 10048-0945 RE: Protest; Vessel Repairs; Non-compliance With Protest Requirements Dear Sir: This is in reference to a memorandum from your office which transmitted protest No. 1001-7-002873, relating to vessel repair entry no. 4601-86-7159068, concerning the M/V SEA-LAND EXPRESS, Voyage No. 89, which arrived at the port of Elizabeth, New Jersey, on May 7, 1986. The entry was filed on May 8, 1986. FACTS: The above-captioned protest seeks reliquidation on the basis of foreign shipyard work having been performed pursuant to a warranty recognizable under the decision of the Court of International Trade in the case of Sea-Land Service, Inc. v. United States, 683 F. Supp. 1404 (1988). The vessel was taken abroad for the purpose of having a mid- body addition inserted in order to lengthen the vessel by some one-hundred (100) feet. This was accomplished and the vessel was redelivered to Sea-Land by the shipyard in 1985. The work was performed under a construction contract which was identical for twelve (12) Sea-Land vessels which were modified at nearly the same time. The standard contract contained a warranty clause (Article XI WARRANTY OF QUALITY), containing two time elements, which read as follows: (b) Guarantee Period. The guarantee of the contractor shall expire: (i) for defects in design, material or workmanship which the owner might discover by the exercise of due diligence: twelve (12) months from the date of redelivery of the CONVERTED VESSEL. (ii) for defect in material or workmanship which could not be discovered by the exercise of the owner`s due diligence (i. e. , latent defects): twenty-four (24) months from the date of redelivery of the CONVERTED VESSEL. The warranty provisions are conditioned upon timely written notice being given by the owner to the shipyard within 20 days following the expiration of the warranty period. ISSUE: Whether the protest meets the statutory requirements of 19 U.S.C. 1514. LAW AND ANALYSIS: Following liquidation, a protest may be filed against the decision to treat an item or a repair as dutiable under 19 U.S.C. 1466(a) (19 C.F.R. 4.14). Under the provisions of title 19 United States Code, section 1514, such protest of duties shall be filed within 90 days from the notice of liquidation. Under the provisions of title 19, United States Code, section 1514(c)(1), a protest of a decision under subsection (a) of this section shall be filed in writing with the appropriate Customs officer designated in regulations prescribed by the Secretary, setting forth distinctly and specifically each decision described in subsection (a) of this section as to which protest is made; each category of merchandise affected by each such decision as to which protest is made; and the nature of each objection and reasons therefor. In the subject case, the entry was liquidated on December 29, 1986. Customs received the protest on March 2, 1987, which states: Check with K. Peterson, U.S. Custom Washington, D.C. re recent ruling on continuation of modification position of Sea-Land. The statute plainly requires that protests set forth distinctly and specifically each category of merchandise, and each objection and reasons therefor. Accordingly, we find the protest to be defective as filed HOLDING: The subject protest is defective in that it does not meet the requirements set forth in 19 U.S.C. 1514(c). Sincerely, Stuart P. Seidel Director, Regulatory Procedures and Penalties Division