Vessel Repair; 19 U.S.C. 1466; M/V PRESIDENT POLK, V-29; Entry No. C27-0054168-6; 19 U.S.C. 1520(c)(1)

HQ 113027 February 28, 1994 VES-13-18-CO:R:IT:C 113027 GOB 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; M/V PRESIDENT POLK, V-29; Entry No. C27-0054168-6; 19 U.S.C. 1520(c)(1) Dear Sir: This is in response to a letter dated February 10, 1994 from American President Lines, Ltd. ("APL") with respect to the above- referenced entry. That letter states in part: ...we request alternatively further review of the Protest pursuant to 19 CFR 174.25 or correction of a clerical error, mistake of fact, or inadvertence pursuant to 19 CFR 173.4. The mistake of fact does not amount to an error in the construction of law, is adverse to APL and is manifest from the record or established by documentary evidence. By Ruling 112965 dated December 23, 1993 the protest of the above-referenced entry was granted in part and denied in part. We are not treating APL's letter as an application for further review. Ruling 112965 was with respect to APL's protest and application for further review. We are treating APL's February 10, 1994 letter as a petition submitted pursuant to 19 U.S.C. 1520(c)(1), which states: (c) Reliquidation of entry Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to correct - (1) a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of law, adverse to the importer and manifest from the record or established from documentary evidence, - 2 - in an entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the appropriate customs officer within one year after the date of liquidation or exaction; or After a consideration of APL's petition and the evidence of record, we find that there was no clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of law. With respect to APL's claim of mistake of fact, we note the following. "Mistake of fact" is defined in 19 CFR 162.71(d) as follows: "Mistake of fact" means an action based on a belief by a person that the material facts are other than they really are; it can be that a fact exists but is unknown to the person, or that he believes something is a fact when in reality it is not. An action is not a mistake of fact if the erroneous belief is caused by the neglect of a legal duty. The Court of International Trade has defined mistake of fact as follows: A mistake of fact exists when `a person understands the facts to be other than they are' or `when some fact which indeed exists, is unknown, or a fact which is thought to exist, in reality does not exist.' NEC Electronics U.S.A., Inc. v. United States, 709 F. Supp. 1171, 1173 (C.I.T. 1989), quoting Concentric Pumps, Ltd. v. United States, 643 F. Supp. 623, 625 (C.I.T. 1986). The entire record was reviewed in the course of our issuance of Ruling 112965. There was no misunderstanding of facts. The bases of our decision are as stated in the ruling. With respect to certain of the items for which the protest was denied, the documentation submitted by APL was found to be insufficient. Accordingly, the petition is denied. Please provide APL with a copy of this letter. Sincerely, Arthur P. Schifflin Chief