A-15479, SEPTEMBER 1, 1926, 6 COMP. GEN. 173

A-15479: Sep 1, 1926

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THE OWNER OF AN AUTOMOBILE AND HOUSEHOLD GOODS SHIPPED AS A PART OF THE CARGO OF A VESSEL ON A GOVERNMENT BILL OF LADING IS OBLIGATED TO CONTRIBUTE IN GENERAL AVERAGE RESULTING FROM THE STRANDING OF SUCH VESSEL WHILE THE CARGO. OF WHICH HIS GOODS WERE A PART. WAS BEING TRANSPORTED TO DESTINATION. LIEUTENANT BORDEN WAS DULY AUTHORIZED BY THE COAST AND GEODETIC SURVEY TO SHIP HIS HOUSEHOLD GOODS. THE STEAMER STEEL SCIENTIST WAS STRANDED ON APRIL 13. UPON ARRIVAL OF SHIPMENT IN MANILA THE TRANSPORTATION COMPANY'S AGENT REFUSED TO DELIVER THE AUTOMOBILE TO LIEUTENANT BORDEN UNLESS A CASH DEPOSIT OR BOND WAS GIVEN TO SECURE THE PAYMENT OF GENERAL AVERAGE CONTRIBUTIONS. OR UNLESS INSTRUCTIONS TO RELEASE SHIPMENT WITHOUT A DEPOSIT OR BOND WERE ISSUED BY THE HOME OFFICE OF THE TRANSPORTATION COMPANY.

A-15479, SEPTEMBER 1, 1926, 6 COMP. GEN. 173

GENERAL AVERAGE - HOUSEHOLD EFFECTS AND AUTOMOBILE OF OFFICER OF COAST AND GEODETIC SURVEY SHIPPED ON A STRANDED VESSEL THE OBLIGATION TO CONTRIBUTE IN GENERAL AVERAGE RESTS UPON THE VESSEL, THE CARGO AND THE FREIGHT, AND THE OWNERS OF SUCH INTERESTS. WITH CERTAIN EXCEPTIONS, ALL PROPERTY SAVED CONTRIBUTES, THE CARGO OWNERS CONTRIBUTING ACCORDING TO THE VALUE OF THEIR RESPECTIVE PROPERTY SAVED. THE OWNER OF AN AUTOMOBILE AND HOUSEHOLD GOODS SHIPPED AS A PART OF THE CARGO OF A VESSEL ON A GOVERNMENT BILL OF LADING IS OBLIGATED TO CONTRIBUTE IN GENERAL AVERAGE RESULTING FROM THE STRANDING OF SUCH VESSEL WHILE THE CARGO, OF WHICH HIS GOODS WERE A PART, WAS BEING TRANSPORTED TO DESTINATION. THE FACT THAT THE GOVERNMENT UNDERTOOK TO BEAR THE EXPENSE OF TRANSPORTING THE GOODS DOES NOT OPERATE TO MAKE IT THE INSURER OF SAID GOODS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, SEPTEMBER 1, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 20, 1926, REQUESTING DECISION OF A QUESTION PRESENTED, AS FOLLOWS:

ON MARCH 25, 1926, LIEUTENANT FRANK S. BORDEN, OF THE UNITED STATES COAST AND GEODETIC SURVEY, SHIPPED AN AUTOMOBILE FROM PHILADELPHIA, PENNSYLVANIA, TO MANILA, PHILIPPINE ISLANDS, ON THE ISTHMIAN STEAMSHIP COMPANY'S STEAMER STEEL SCIENTIST, SHIPMENT BEING COVERED BY GOVERNMENT BILL OF LADING NUMBER C-65058, THE USUAL TERMS OF A GOVERNMENT BILL OF LADING GOVERNING THE SHIPMENT. LIEUTENANT BORDEN WAS DULY AUTHORIZED BY THE COAST AND GEODETIC SURVEY TO SHIP HIS HOUSEHOLD GOODS, WHICH TERM INCLUDES THE AUTOMOBILE SHIPPED ON ABOVE DATE.

THE STEAMER STEEL SCIENTIST WAS STRANDED ON APRIL 13, 1926. UPON ARRIVAL OF SHIPMENT IN MANILA THE TRANSPORTATION COMPANY'S AGENT REFUSED TO DELIVER THE AUTOMOBILE TO LIEUTENANT BORDEN UNLESS A CASH DEPOSIT OR BOND WAS GIVEN TO SECURE THE PAYMENT OF GENERAL AVERAGE CONTRIBUTIONS, OR UNLESS INSTRUCTIONS TO RELEASE SHIPMENT WITHOUT A DEPOSIT OR BOND WERE ISSUED BY THE HOME OFFICE OF THE TRANSPORTATION COMPANY. IN REPLY TO LETTER FROM THE COAST AND GEODETIC SURVEY, MARSH AND MCLENNAN, 80 MAIDEN LANE, NEW YORK CITY, ADJUSTERS FOR GENERAL AVERAGE, INQUIRED AS TO WHETHER THE SHIPMENT WAS AT THE RISK OF LIEUTENANT BORDEN OR ON ACCOUNT OF THE COAST AND GEODETIC SURVEY. IF THE FORMER, A CASH DEPOSIT OR BOND WILL BE REQUIRED, WHILE A LETTER TO THE EFFECT THAT THE COAST AND GEODETIC SURVEY WILL ARRANGE FOR THE PAYMENT OF THE PROPER GENERAL AVERAGE CHARGES WILL BE ACCEPTABLE IN THE LATTER CASE.

INFORMATION IS DESIRED AS TO WHETHER LIEUTENANT BORDEN OR THE COAST AND GEODETIC SURVEY IS LIABLE FOR THE GENERAL AVERAGE CHARGES.

AS THE AUTOMOBILE IS STILL BEING HELD BY THE TRANSPORTATION COMPANY, IT WILL BE APPRECIATED IF THIS MATTER CAN BE EXPEDITED AS MUCH AS POSSIBLE.

GENERAL AVERAGE IS A CONTRIBUTION BY THE SEVERAL INTERESTS ENGAGED IN A MARITIME ADVENTURE TO MAKE GOOD THE LOSS OF ONE OF THEM FOR VOLUNTARY SACRIFICES OF PART OF THE SHIP OR CARGO TO SAVE THE RESIDUE OF THE PROPERTY AND/OR THE LIVES OF THOSE ON BOARD FROM AN IMPENDING PERIL, OR FOR EXTRAORDINARY EXPENSES NECESSARILY INCURRED FOR THE COMMON BENEFIT AND SAFETY OF ALL THE INTERESTS IN THE ADVENTURE. THE RIGHT TO CONTRIBUTION IS BASED UPON THE PRINCIPLE THAT WHATEVER IS SACRIFICED FOR THE COMMON SAFETY OF THE ASSOCIATED INTERESTS SHALL BE MADE GOOD BY ALL THE INTERESTS WHICH WERE EXPOSED TO THE COMMON PERIL, AND WERE SAVED FROM THE COMMON DANGER BY THE SACRIFICE. THE SPIRIT AND INTENDMENT OF THE LAW OF CONTRIBUTION IN GENERAL AVERAGE IS TO PLACE THE PERSONS INTERESTED, AS NEAR AS MAY BE, IN THE SAME RELATIVE POSITION WHICH THEY OCCUPIED BEFORE THE PERIL WAS MET. THE OBLIGATION TO CONTRIBUTE IN GENERAL AVERAGE RESTS UPON THE VESSEL, THE CARGO AND THE FREIGHT, AND THE OWNERS OF SUCH INTERESTS. WITH CERTAIN EXCEPTIONS, ALL PROPERTY SAVED CONTRIBUTES. THE CARGO OWNERS CONTRIBUTE ACCORDING TO THE VALUE OF THEIR PROPERTY SAVED. SEE 36 CYC. 372, ET SEQ., AND CASES THEREIN CITED, WHICH INCLUDE: THE JASON, 178 FED.REP. 414; THE STRATHDON, 94 FED.REP. 206; MCANDREWS V. THATCHER, 3 WALL. (U.S.) 347; AND THE MAGGIE HAMMOND, 9 WALL. (U.S.) 435.

IN THE INSTANT CASE THE OWNER OF THE AUTOMOBILE AND HOUSEHOLD GOODS SHIPPED AS PART OF THE CARGO OF THE ISTHMIAN STEAMSHIP CO.'S STEAMER STEEL SCIENTIST FROM PHILADELPHIA TO MANILA, P.I., ON GOVERNMENT BILL OF LADING NO. C-65058, WAS LIEUT. FRANK S. BORDEN, OF THE UNITED STATES COAST AND GEODETIC SURVEY, AND THE FACT THAT SAID GOODS WERE TRANSPORTED ON A GOVERNMENT BILL OF LADING DOES NOT RELIEVE HIM FROM HIS OBLIGATION AS OWNER THEREOF TO CONTRIBUTE IN GENERAL AVERAGE RESULTING FROM THE STRANDING OF SAID VESSEL WHILE THE CARGO, OF WHICH HIS GOODS WERE A PART, WAS BEING TRANSPORTED TO DESTINATION. THE CARGO OF THE VESSEL IS LIABLE FOR THE GENERAL AVERAGE ASSESSED, AND THE RELEASE THEREOF FROM THE LIEN ATTACHED IS A MATTER FOR ADJUSTMENT BY THE OWNER OF THE EFFECTS. THERE IS NO AUTHORITY OF LAW FOR THE UNITED STATES TO CONTRIBUTE IN GENERAL AVERAGE WHERE NONE OF THE CARGO INVOLVED, OR THE VESSEL, IS GOVERNMENT PROPERTY, AS APPEARS TO BE THE CASE HERE. THE FACT THAT THE GOVERNMENT UNDERTAKES TO BEAR THE EXPENSES OF TRANSPORTING THE EFFECTS OF AN OFFICER OR EMPLOYEE UNDER CERTAIN CIRCUMSTANCES DOES NOT OPERATE TO MAKE THE GOVERNMENT AN INSURER OF SAID PROPERTY. AS BETWEEN THE GOVERNMENT AND THE OWNER ALL RISKS OF THE SHIPMENT ARE ASSUMED BY THE OWNER UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW.