B-127139, MAR. 26, 1956

B-127139, MAR. 26, 1956

TO MYLOS TRADING CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1956, AND TO PRIOR CORRESPONDENCE, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR OFFICE IN THE SETTLEMENT OF YOUR CLAIMS, WHEREIN YOU WERE ALLOWED THE AMOUNT OF $2,085.40 AND THERE WAS DISALLOWED THE SUM OF $5,017.67, REPRESENTING EXCESS COSTS WHICH YOU CLAIMED TO BE DUE ON ACCOUNT OF THE FAILURE OF THE GOVERNMENT TO GIVE TIMELY NOTICE TO THE SHIPMASTERS OF THE S.S. FIRENZE AND THE S.S. NORLANDO WITH REGARD TO THE PORTS OF DISCHARGE OF THE VESSELS' CARGOS.

THE RECORD SHOWS THAT YOU ENTERED INTO A CONTRACT WITH THE GOVERNMENT (NO. DA-11-184-ENG-12760, DATED JUNE 27, 1953) BY THE TERMS OF WHICH YOU WERE TO SHIP 30,000 NET METRIC TONS OF AMMONIUM SULPHATE, F.O.B. VESSELS AT GOVERNMENT DESIGNATED BERTH, BUOY OR MOORING AT VARIOUS PORTS IN KOREA TO BE DESIGNATED.

IN SUPPORT OF YOUR CLAIM YOU CONTEND THAT THE GOVERNMENT FAILED TO TIMELY NOTIFY THE SHIPMASTERS OF THE AFOREMENTIONED VESSELS OF THE PORTS OF DISCHARGE; THAT THE SHIPMASTER OF THE S.S. NORLANDO RADIOED ON NOVEMBER 6, 9, 11 AND 12, 1953, FOR INSTRUCTIONS AS TO THE PORT OF DISCHARGE, ALL OF WHICH WERE UNANSWERED; AND THAT THE SHIPMASTER OF THE S.S. FIRENZE RADIOED FOR THE PORT OF DISCHARGE ON OCTOBER 13, 16 AND 17, 1953, ALL OF WHICH WERE UNANSWERED. YOU FURTHER CONTEND THAT IF THE CONTRACT HAD BEEN SPECIFIC AND CLEAR THAT THE INSTRUCTIONS TO THE SHIPMASTER WERE TO BE GIVEN BY YOU AND NOT BY THE RECEIVING OFFICER, KOREA CIVIL ASSISTANCE COMMAND, IT WOULD HAVE BEEN A SIMPLE TASK ON YOUR PART TO NOTIFY THE SHIPMASTERS OF THE PORTS OF DISCHARGE.

THE SUCCESSOR CONTRACTING OFFICER HAS REPORTED THAT ON SEPTEMBER 9, 1953, THE RECEIVING AGENCY, KOREA CIVIL ASSISTANCE COMMAND CABLED YOU THAT INCHON WOULD BE THE DISCHARGING PORT FOR THE S.S. FIRENZE AND REQUESTED YOU SPECIFICALLY TO SO ADVISE THE SHIPMASTER. BECAUSE OF YOUR FAILURE TO SO ADVISE THE SHIPMASTER, THE SHIP PROCEEDED TO PUSAN AND UPON ARRIVAL THERE ON OR ABOUT OCTOBER 17, 1953, THE SHIPMASTER WAS ADVISED TO PROCEED TO INCHON. AS A RESULT YOU NOW CLAIM ADDITIONAL EXPENSES OF $3,794.49 FOR THIS PARTICULAR SHIPMENT. AS TO THE SHIPMENT INVOLVING THE S.S. NORLANDO, THE SUCCESSOR CONTRACTING OFFICER HAS REPORTED THAT YOU WERE INFORMED BY WIRE ON OCTOBER 10, 1953, THAT THE SHIP WAS TO DISCHARGE CARGO AT MOKPO AND YOSU AND THAT YOU FAILED TO NOTIFY THE SHIPMASTER OF THESE INSTRUCTIONS. ALSO, IT APPEARS THAT THE LOG JOURNAL OF THE S.S. NORLANDO SHOWS THAT SUBSEQUENT TO OCTOBER 10, 1953, THE DATE YOU WERE INFORMED AS TO THE REQUIRED PORT OF DISCHARGE, THE SHIPMASTER OF THIS VESSEL WHILE OFF THE SOUTH COAST OF KOREA WIRED THE RECEIVING AGENCY, KOREA CIVIL ASSISTANCE COMMAND FOUR TIMES IN AN ATTEMPT TO OBTAIN THE PROPER PORT OF DISCHARGE FOR HIS VESSEL PRESUMABLY BECAUSE YOU HAD FAILED TO NOTIFY HIM OF THE GOVERNMENT'S MESSAGE TO YOU. THE SHIPMASTER STATES THAT SINCE HE FAILED TO RECEIVE ANY ANSWER TO HIS WIRES, HE WIRED THE SHIPOWNERS OF HIS DECISION TO PROCEED TO THE PORT OF PUSAN. HOWEVER, WHEN 48 MILES FROM PUSAN, HE RECEIVED INSTRUCTIONS FROM THE SHIPOWNERS TO PROCEED TO THE PORT OF MOKPO, AND ABOUT THE SAME TIME THE RECEIVING AGENCY, KOREA CIVIL ASSISTANCE COMMAND, ALSO WIRED HIM TO PROCEED TO MOKPO WHICH HE ACCOMPLISHED. YOUR CLAIM FOR ADDITIONAL EXPENSES INCURRED IN CONNECTION WITH THIS LATER SHIPMENT ON THE S.S. NORLANDO IS IN THE AMOUNT OF $1,223.18.

ALTHOUGH IT IS YOUR CONTENTION THAT THE GOVERNMENT WAS REQUIRED TO NOTIFY THE SHIPMASTERS DIRECTLY AS TO THE PORTS OF DISCHARGE, YOU ADMIT THAT THERE WAS NOTHING IN THE CONTRACT TO THIS EFFECT. AND WHILE THERE WAS NOTHING IN THE CONTRACT AS TO WHAT PARTY THE GOVERNMENT WAS TO NOTIFY IN CASE THE PORTS OF DISCHARGE WERE CHANGED, THE SHIPMASTER WAS NOT A PARTY TO THE CONTRACT AND THE CONTRACT REQUIRED YOU AS CONTRACTOR TO FURNISH THE GOVERNMENT WITH SHIPPING NOTICES INCLUDING "MASTER'S NOTICE OF EXPECTED TIME OF ARRIVAL AT PORTS DESIGNATED HEREIN.' UNDER SUCH CIRCUMSTANCES THE GOVERNMENT WOULD NOT BE OBLIGATED TO NOTIFY THE SHIPMASTERS IN THE EVENT THERE WAS A CHANGE IN THE PORTS OF DISCHARGE BUT WOULD DISCHARGE ITS RESPONSIBILITY BY NOTIFYING YOU AS A CONTRACTOR.

THE GOVERNMENT THROUGH THE RECEIVING AGENCY, KOREA CIVIL ASSISTANCE COMMAND, HAS COMPLIED WITH THE PROVISIONS OF THE CONTRACT BY REASON OF ITS NOTIFICATION OF DISCHARGE INSTRUCTIONS TO YOU AND, ALTHOUGH NOT REQUIRED, TO THE SHIPMASTERS AS WELL. IF THERE WAS ANY DOUBT AS TO WHO WAS RESPONSIBLE FOR NOTIFYING THE SHIPMASTERS OF A CHANGE IN PORT OF DISCHARGE, IT WOULD APPEAR THAT THE FIRST NOTICE SENT TO YOU IN THIS CASE ON SEPTEMBER 9, 1953, TO ADVISE THE SHIPMASTER OF THE S.S. FIRENZE OF SUCH A CHANGE, CLARIFIED THE GOVERNMENT'S UNDERSTANDING ON THIS POINT AND IF YOU WERE OF THE OPINION THAT YOU WERE NOT REQUIRED TO NOTIFY THE SHIPMASTER OF SUCH CHANGES, YOU SHOULD HAVE QUESTIONED THESE INSTRUCTIONS. WHILE IT MAY BE THAT THE SHIPMASTERS ATTEMPTED TO OBTAIN DISCHARGE INSTRUCTIONS FROM THE GOVERNMENT RECEIVING AGENCY AND WHILE SUCH AGENCY ATTEMPTED TO FURNISH THESE INSTRUCTIONS IN DUE TIME, YOU WERE NOT RELIEVED THEREBY OF YOUR DUTY TO ADVISE THE SHIPMASTERS UPON RECEIVING TIMELY NOTICES OF SUCH CHANGES.