B-151207, SEP. 30, 1963
Highlights
THIS OFFICE HAS DISALLOWED THE CLAIM TO DATE FOR THE REASON THAT THERE HAS NOT BEEN ESTABLISHED TO OUR SATISFACTION THAT THE REQUIRED DEGREE OF DUE DILIGENCE WAS EXERCISED BY THE VESSEL OWNER TO MAKE THE VESSEL SEAWORTHY PRIOR TO THE VOYAGE ON WHICH THE GOVERNMENT CARGO WAS CARRIED. SINCE THE GENERAL AVERAGE ACCIDENT IS ALLEGED TO HAVE BEEN CAUSED BY A LEAK IN THE STARBOARD DOUBLE BOTTOM TANK RESULTING FROM HEAVY WEATHER ENCOUNTERED ON THE PREVIOUS WESTBOUND VOYAGE. REQUESTED EVIDENCE THAT THE VESSEL OWNER HAD PROPERLY EXAMINED THE DOUBLE BOTTOM TANKS THROUGH REGULAR SOUNDING PROCEDURE PRIOR TO THE VOYAGE ON WHICH THE GOVERNMENT CARGO WAS LOADED. IN REPLY THERETO INDICATED THAT THERE IS NO RECORD OF DAILY SOUNDING OF THE DOUBLE BOTTOM TANKS AND THAT THE REQUIREMENT FOR DAILY SOUNDING REFLECTS AN UNREASONABLY BURDENSOME INTERPRETATION OF WHAT CONSTITUTES DUE DILIGENCE.
B-151207, SEP. 30, 1963
TO FRANK B. HALL AND COMPANY:
WE REFER TO YOUR LETTER OF JUNE 20, 1963, REQUESTING FURTHER CONSIDERATION OF A CLAIM IN GENERAL AVERAGE ALLEGEDLY ARISING OUT OF AN ACCIDENT INCURRED BY THE SS. COLORADO WITH GOVERNMENT CARGO ABOARD.
THIS OFFICE HAS DISALLOWED THE CLAIM TO DATE FOR THE REASON THAT THERE HAS NOT BEEN ESTABLISHED TO OUR SATISFACTION THAT THE REQUIRED DEGREE OF DUE DILIGENCE WAS EXERCISED BY THE VESSEL OWNER TO MAKE THE VESSEL SEAWORTHY PRIOR TO THE VOYAGE ON WHICH THE GOVERNMENT CARGO WAS CARRIED.
SINCE THE GENERAL AVERAGE ACCIDENT IS ALLEGED TO HAVE BEEN CAUSED BY A LEAK IN THE STARBOARD DOUBLE BOTTOM TANK RESULTING FROM HEAVY WEATHER ENCOUNTERED ON THE PREVIOUS WESTBOUND VOYAGE, THIS OFFICE, IN A LETTER DATED MAY 22, 1963, REQUESTED EVIDENCE THAT THE VESSEL OWNER HAD PROPERLY EXAMINED THE DOUBLE BOTTOM TANKS THROUGH REGULAR SOUNDING PROCEDURE PRIOR TO THE VOYAGE ON WHICH THE GOVERNMENT CARGO WAS LOADED. YOUR LETTER OF JUNE 20, 1963, IN REPLY THERETO INDICATED THAT THERE IS NO RECORD OF DAILY SOUNDING OF THE DOUBLE BOTTOM TANKS AND THAT THE REQUIREMENT FOR DAILY SOUNDING REFLECTS AN UNREASONABLY BURDENSOME INTERPRETATION OF WHAT CONSTITUTES DUE DILIGENCE.
THIS OFFICE BELIEVES THAT COMMERCIAL MARITIME PRACTICE WOULD REQUIRE THE UTILIZATION OF ACCEPTED PROTECTIVE PROCEDURES TO ASSURE THAT THE VESSEL IS SEAWORTHY AFTER AN EXPERIENCE OF HEAVY WEATHER ON A PREVIOUS VOYAGE. THIS CERTAINLY WOULD SEEM TO ENTAIL SOUNDINGS OF FUEL DOUBLE BOTTOM TANKS AT LEAST PRIOR TO AND UPON COMPLETION OF FILLING OR EMPTYING A SPECIFIC TANK. SUCH A PRACTICE WOULD APPEAR TO BE REQUIRED TO SATISFY THE REQUIREMENTS OF THE DUE DILIGENCE NECESSARY FOR THE PAYMENT OF THIS CLAIM AND WOULD NOT APPEAR TO BE UNDULY BURDENSOME ON THE PART OF THE VESSEL OWNER.
UPON A SHOWING THAT SOUNDINGS WERE TAKEN OF THE DOUBLE BOTTOM TANK IN QUESTION PRIOR TO THE FILING OF THE TANK WITH FUEL AFTER LEAVING VANCOUVER AND THAT THE TANK WAS FOUND TO BE DRY, OR, IN LIEU THEREOF, COMPELLING REASONS FOR THE ASSERTION THAT THE ACTS OR OMISSIONS OF THE VESSEL OWNER IN THE INSTANT CASE MEET THE REQUIREMENTS OF DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY AS SET FORTH IN THE LAW THE CLAIM MAY BE ALLOWED.
IF IT IS YOUR ASSERTION THAT LEAKAGE IN THE TANK DID NOT OCCUR OR COULD NOT HAVE BEEN DISCOVERED UNTIL AFTER THE GOVERNMENT CARGO WAS LOADED AT PORTLAND THIS OFFICE WILL CONSIDER A STATEMENT TO THIS EFFECT OVER THE SIGNATURE OF A DISINTERESTED QUALIFIED EXPERT OF STRONG PROBATIVE EFFECT TO ESTABLISH THE DEFECT AS LATENT AND NOT DISCOVERABLE BY THE EXERCISE OF DUE DILIGENCE.