A-19290, AUGUST 1, 1927, 7 COMP. GEN. 86

A-19290: Aug 1, 1927

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PUBLIC PROPERTY DAMAGED IN TRANSIT - RESPONSIBILITY WHERE PROPERTY IS RECEIVED IN GOOD ORDER BY A VESSEL AND IS NOT DELIVERED IN LIKE ORDER AND CONDITION. A PRESUMPTION IS RAISED OF NEGLIGENCE ON THE PART OF THE CARRIER AND THE BURDEN IS ON THE SHIP TO SHOW THAT THE DAMAGE WAS DUE TO ONE OF THE EXCEPTED CAUSES NAMED IN THE "HARTER ACT" OF FEBRUARY 13. IT APPEARS THAT WHEN THE SHIPMENT REACHED DESTINATION THERE WAS A SHORTAGE OF ONE Y AND THAT ANOTHER WAS BROKEN. DEDUCTION WAS MADE OF $9.41 ON VOUCHER NO. 9990 TO COVER BOTH THE SHORTAGE AND BREAKAGE AND FREIGHT ON THE TWO ARTICLES. THE INSTANT CLAIM IS FOR THE AMOUNT DEDUCTED ON ACCOUNT OF THE BROKEN Y. IT IS NOT LIABLE FOR THE BROKEN Y. THAT THE DEDUCTION OF $4.70 TO COVER THE VALUE THEREOF WAS IMPROPER.

A-19290, AUGUST 1, 1927, 7 COMP. GEN. 86

PUBLIC PROPERTY DAMAGED IN TRANSIT - RESPONSIBILITY WHERE PROPERTY IS RECEIVED IN GOOD ORDER BY A VESSEL AND IS NOT DELIVERED IN LIKE ORDER AND CONDITION, A PRESUMPTION IS RAISED OF NEGLIGENCE ON THE PART OF THE CARRIER AND THE BURDEN IS ON THE SHIP TO SHOW THAT THE DAMAGE WAS DUE TO ONE OF THE EXCEPTED CAUSES NAMED IN THE "HARTER ACT" OF FEBRUARY 13, 1893, 27 STAT. 445.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 1, 1927:

THE UNITED FRUIT CO. HAS APPLIED FOR REVIEW OF SETTLEMENT NO. 06463, DATED JUNE 22, 1927, DISALLOWING ITS CLAIM FOR $4.70, THE AMOUNT DEDUCTED FROM VOUCHER NO. 9990, DECEMBER, 1926, ACCOUNTS OF A. C. WHITTON, DISBURSING CLERK OF THE PANAMA CANAL, TO COVER BREAKAGE ON A SHIPMENT OF SEWER PIPE Y'S MADE BY W. S. DICKEY CLAY MANUFACTURING CO., CHATTANOOGA, TENN., TO THE PANAMA CANAL ON MAY 22, 1926.

IT APPEARS THAT WHEN THE SHIPMENT REACHED DESTINATION THERE WAS A SHORTAGE OF ONE Y AND THAT ANOTHER WAS BROKEN. DEDUCTION WAS MADE OF $9.41 ON VOUCHER NO. 9990 TO COVER BOTH THE SHORTAGE AND BREAKAGE AND FREIGHT ON THE TWO ARTICLES. REIMBURSEMENT BY THE CONNECTING CARRIER HAS BEEN MADE THE CLAIMANT FOR THE AMOUNT DEDUCTED ON ACCOUNT OF THE SHORTAGE, AND THE INSTANT CLAIM IS FOR THE AMOUNT DEDUCTED ON ACCOUNT OF THE BROKEN Y. THE CLAIMANT CONTENDS THAT UNDER THE PROVISIONS OF THE "HARTER ACT" OF FEBRUARY 13, 1893, 27 STAT. 445, IT IS NOT LIABLE FOR THE BROKEN Y, AND, THEREFORE, THAT THE DEDUCTION OF $4.70 TO COVER THE VALUE THEREOF WAS IMPROPER. SAID ACT PROVIDES, IN PART, AS FOLLOWS:

THAT IT SHALL NOT BE LAWFUL FOR ANY VESSEL TRANSPORTING MERCHANDISE OR PROPERTY FROM OR BETWEEN PORTS OF THE UNITED STATES OF AMERICA AND FOREIGN PORTS, HER OWNER, MASTER, AGENT, OR MANAGER, TO INSERT IN ANY BILL OF LADING OR SHIPPING DOCUMENT ANY COVENANT OR AGREEMENT WHEREBY THE OBLIGATIONS OF THE OWNER OR OWNERS OF SAID VESSEL TO EXERCISE DUE DILIGENCE PROPERLY EQUIP, MAN, PROVISION, AND OUTFIT SAID VESSEL, AND TO MAKE SAID VESSEL SEAWORTHY AND CAPABLE OF PERFORMING HER INTENDED VOYAGE, OR WHEREBY THE OBLIGATIONS OF THE MASTER, OFFICERS, AGENTS, OR SERVANTS TO CAREFULLY HANDLE AND STOW HER CARGO AND TO CARE FOR AND PROPERLY DELIVER SAME, SHALL IN ANY WISE BE LESSENED, WEAKENED, OR AVOIDED.

THAT IF THE OWNER OF ANY VESSEL TRANSPORTING MERCHANDISE OR PROPERTY TO OR FROM ANY PORT IN THE UNITED STATES OF AMERICA SHALL EXERCISE DUE DILIGENCE TO MAKE THE SAID VESSEL IN ALL RESPECTS SEAWORTHY AND PROPERLY MANNED, EQUIPPED, AND SUPPLIED, NEITHER THE VESSEL, HER OWNER, OR OWNERS, AGENT, OR CHARTERERS SHALL BECOME OR BE HELD RESPONSIBLE FOR DAMAGE OR LOSS RESULTING FROM FAULTS OR ERRORS IN NAVIGATION OR IN THE MANAGEMENT OF SAID VESSEL NOR SHALL THE VESSEL, HER OWNER OR OWNERS, CHARTERERS, AGENT, OR MASTER BE HELD LIABLE FOR LOSSES ARISING FROM DANGERS OF THE SEA OR OTHER NAVIGABLE WATERS, ACTS OF GOD, OF PUBLIC ENEMIES, OR THE INHERENT DEFECT, QUALITY, OR VICE OF THE THING CARRIED, OR FROM INSUFFICIENCY OF PACKAGE, OR SEIZURE UNDER LEGAL PROCESS, OR FOR LOSS RESULTING FROM ANY ACT OR OMISSION OF THE SHIPPER OR OWNER OF THE GOODS, HIS AGENT OR REPRESENTATIVE, OR FROM SAVING OR ATTEMPTING TO SAVE LIFE OR PROPERTY AT SEA, OR FROM ANY DEVIATION IN RENDERING SUCH SERVICE.

NO EVIDENCE HAS BEEN PRESENTED TO SHOW THAT THE BREAKAGE OF THE Y WAS DUE TO ANY FAULT OR ERROR IN NAVIGATION OR MANAGEMENT OF THE VESSEL OR TO DANGERS OF THE SEA, OR TO ANY OF THE OTHER CAUSES MENTIONED IN THE PARAGRAPHS ABOVE QUOTED. THE GOODS HAVING BEEN RECEIVED IN GOOD CONDITION AND NOT DELIVERED IN THE ORDER RECEIVED, RAISED THE PRESUMPTION OF NEGLIGENCE ON THE PART OF THE CARRIER AND THE BURDEN IS ON THE SHIP TO SHOW THAT THE DAMAGE WAS DUE TO ONE OF THE EXCEPTED CAUSES. SEE 12 COMP. DEC. 749 AND AUTHORITIES CITED THEREIN. THE FACT THAT THE ARTICLE WAS BROKEN RAISED A DOUBT AS TO WHETHER IT WAS PROPERLY STOWED, AND IN THE ABSENCE OF EVIDENCE SHOWING THAT IT WAS, THE DOUBT MUST BE RESOLVED AGAINST THE SHIP-OWNER AND IN FAVOR OF THE SHIPPER. SEE THE SOUTHWARK, 191 U.S. 1, 16.