dissenting.
I respectfully dissent.
The vessel repair statute, 19 U.S.C. § 1466(a), imposes a duty on the “expenses of [ship] repairs made in a foreign country.” In Texaco Marine Services, Inc. v. United States, 44 F.3d 1539 (Fed.Cir.1994), this court held that in determining whether a particular expense is a dutiable expense of repair, a “but for” test should be used. The court thus interpreted “expenses of repair” as covering “all expenses (not specifically excepted in the statute) which, but for dutiable repair work, would not have been incurred. Conversely, ‘expenses of repairs’ does not cover expenses that would have been incurred even without the occurrence of dutiable repair work.” 44 F.3d at 1544. Application of the “but for” test would render the dry-docking expenses at issue in this case non-dutiable, because the dry-docking was done for inspection and maintenance purposes as well as for repairs, and thus the expenses would have been incurred even without the occurrence of the dutiable repair work.
The court today holds that the expenses are dutiable by accepting the government’s invitation to depart from the “but for” test of Texaco with respect to expenses that are attributable to two or more causes. In that setting, the court holds, the dutiable share of the expenses should be determined by apportionment between the dutiable repairs and the other cause or causes of the expenditure. I disagree with the court’s adoption of this “multiple causes” gloss on Texaco. Instead, I would apply the “but for” test of Texaco in this context and, based on that test, I would uphold the decision of the Court of International Trade that the expenses at issue in this case are not dutiable.
As I read the decision in Texaco, the court anticipated cases of this sort. Particularly enlightening is the Texaco court’s treatment of the earlier decision in the Geo Hall Coal case to which the majority alludes. Geo Hall Coal involved dry-docking expenses that were incurred for the purpose of determining whether repairs were necessary. The dry-docking expenses in that case were held not to be dutiable. While the majority is correct that the cryptic statement of the facts by the Board of General Appraisers in the Geo Hall Coal case does not state that the dry-docking was necessary to perform the repairs at issue in that case, the Texaco court treated the dry-docking expenses as *1364if they were necessary for the repairs. See 44 F.3d at 1546, quoting Int’l Navigation Co. v. United States, 38 Cust.Ct. 5, 148 F.Supp. 448 (Cust.Ct.1957). Based on that premise, the Texaco court concluded that the dry-docking expenses in that case nonetheless were not dutiable because they “would have been incurred irrespective of whether or not dutiable repairs were performed.” 44 F.3d at 1547. As applied to this case, that principle means that the dry-docking expenses in this case should not be dutiable because those expenses would have been incurred irrespective of whether or not dutiable repairs had been performed.
In departing from the Texaco “but for” test, the court today looks to tort law principles of causation as applied to multiple tortfeasors. In that setting, the law generally holds each tortfeasor liable for the victim’s injury if that tortfeasor’s conduct was sufficient to cause the injury even if, because of the conduct of the others, the victim would have suffered the same injury absent each particular tortfeasor’s conduct. For such cases, it makes good sense to depart from the “but for” test, because the consequences of adhering to the test would be that all of the multiple culpable actors would escape liability and the one innocent party — the victim — would be forced to bear the burden of the injury. In the context of the vessel repair statute, however, the question is not whether and how to compensate the victim of a wrong. Congress has determined that a duty of 50 percent on foreign repairs is the appropriate amount to protect the American shipbuilding industry from foreign competition; the question before us is simply whether, in determining how to calculate that 50 percent duty, a particular expense should be attributed to the cost of repairs. And the answer to that question is best given by the formula set forth in Texaco: that the expense is not an expense of repair if it “would have been incurred irrespective of whether or not dutiable repairs were performed.” 44 F.3d at 1546.
Quite apart from the teachings of the Texaco case, the government’s proposed method of determining causation in a multiple cause setting finds no support in the vessel repair statute. The government’s method requires Customs to apportion the costs in question between dutiable costs of repair and other, nondutiable costs. The statute, however, offers no guidance as to how such an apportionment should be conducted; in fact, the statute contains no reference to apportionment at all, which suggests that Congress did not have in mind that Customs would subdivide “multiple cause” expenses into dutiable and nondutiable portions.
Based on the language of the statute, as construed by this court in Texaco, I believe that the Court of International Trade applied the proper test for determining causation in the setting presented by this case, and I would therefore affirm the judgment of the trial court.