A-20840, DECEMBER 9, 1927, 7 COMP. GEN. 370

A-20840: Dec 9, 1927

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THERE IS AN IMPLIED WARRANTY THAT THE VESSEL IS IN ALL RESPECTS SEAWORTHY IN FACT AND REASONABLY FIT TO CARRY THE PARTICULAR GOODS SPECIFIED IN THE BILL OF LADING. A VESSEL'S LIABILITY FOR LOSS OR INJURY TO CARGO FROM A BREACH OF SUCH WARRANT IS NOT AFFECTED BY THE HARTER ACT OF FEBRUARY 13. IS CONDITIONED UPON THE DISCHARGE OF THE CARRIER'S DUTY TO USE DUE DILIGENCE TO PROVIDE THAT WHICH IT HOLDS OUT TO THE SHIPPER IT IS COMPETENT TO FURNISH. 807.52 CHARGED AGAINST HIM TO COVER THE DAMAGES SUSTAINED BY THE UNITED STATES ON ACCOUNT OF THE LOSS OF CERTAIN WAR DEPARTMENT ORDNANCE MATERIAL WHICH WAS BEING TRANSPORTED BY CLAIMANT ON BARGES OVER SAN FRANCISCO AND SUISUN BAYS. THERE APPEARS TO BE NO QUESTION AS TO THE LOSS OF THE CARGO OF ORDNANCE MATERIAL BY THE CAPSIZING OF ONE OF THE CLAIMANT'S BARGES ON WHICH IT WAS BEING TRANSPORTED IN THE EARLY MORNING HOURS OF FEBRUARY 16.

A-20840, DECEMBER 9, 1927, 7 COMP. GEN. 370

TRANSPORTATION, WATER - PROPERTY LOST IN TRANSIT - DAMAGES - RELIEF FROM LIABILITY UNDER "HARTER ACT" IN CONTRACTS FOR CARRIAGE BY SEA, THERE IS AN IMPLIED WARRANTY THAT THE VESSEL IS IN ALL RESPECTS SEAWORTHY IN FACT AND REASONABLY FIT TO CARRY THE PARTICULAR GOODS SPECIFIED IN THE BILL OF LADING. A VESSEL'S LIABILITY FOR LOSS OR INJURY TO CARGO FROM A BREACH OF SUCH WARRANT IS NOT AFFECTED BY THE HARTER ACT OF FEBRUARY 13, 1893, 27 STAT. 445. THE RELIEF GRANTED TO CARRIERS BY SECTION 3 OF THE HARTER ACT OF FEBRUARY 13, 1893, 27 STAT. 445, IS CONDITIONED UPON THE DISCHARGE OF THE CARRIER'S DUTY TO USE DUE DILIGENCE TO PROVIDE THAT WHICH IT HOLDS OUT TO THE SHIPPER IT IS COMPETENT TO FURNISH, TO WIT, A SEAWORTHY VESSEL, PROPERLY MANNED, DULY EQUIPPED, AND SUPPLIED FOR THE PURPOSES OF THE CONTEMPLATED VOYAGE.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 9, 1927:

PAUL P. NOYES REQUESTED, OCTOBER 6, 1927, REVIEW OF SETTLEMENT NO. W 624 1/2, DATED SEPTEMBER 27, 1927, WHEREIN THE SUM OF $513.91 OTHERWISE FOUND DUE CLAIMANT FOR LIGHTERAGE, AS THEREIN SPECIFIED, APPLIED IN PARTIAL LIQUIDATION OF AN INDEBTEDNESS OF $29,807.52 CHARGED AGAINST HIM TO COVER THE DAMAGES SUSTAINED BY THE UNITED STATES ON ACCOUNT OF THE LOSS OF CERTAIN WAR DEPARTMENT ORDNANCE MATERIAL WHICH WAS BEING TRANSPORTED BY CLAIMANT ON BARGES OVER SAN FRANCISCO AND SUISUN BAYS, FROM FORT MASON TO BENICIA ARSENAL, CALIF., THE LOSS RESULTING FROM THE COLLISION OF TWO OF SAID BARGES, AND THE CAPSIZING OF ONE OF THEM.

THERE APPEARS TO BE NO QUESTION AS TO THE LOSS OF THE CARGO OF ORDNANCE MATERIAL BY THE CAPSIZING OF ONE OF THE CLAIMANT'S BARGES ON WHICH IT WAS BEING TRANSPORTED IN THE EARLY MORNING HOURS OF FEBRUARY 16, 1927, AND THE DUMPING THEREOF INTO SUISUN BAY, WITH RESULTANT DAMAGES TO THE UNITED STATES IN THE SUM OF $29,807.52. THE CLAIMANT CONTENDS, HOWEVER, THAT UNDER THE PROVISIONS OF SECTION 3 OF THE HARBOR ACT OF FEBRUARY 13, 1893, 27 STAT. 445, HE IS NOT LIABLE FOR SUCH DAMAGES.

SAID SECTION PROVIDES AS FOLLOWS:

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, OR 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.

THE FACTS WITH REFERENCE TO THE LOSS APPEAR TO BE AS FOLLOWS:

QUANTITIES OF ORDNANCE MATERIALS, CONSISTING OF SHRAPNEL, FUSES, AIRWAY PARACHUTE FLARES, AND POWDER CHARGES FOR SMOKE PUFF OUTFITS, CONSIGNED TO THE COMMANDING OFFICER OF THE ORDNANCE INTERMEDIATE DEPOT, BENICIA ARSENAL, CALIF., WERE DISCHARGED FROM THE U.S. TRANSPORT KENOWIS AT THE FORT MASON DOCKS AND THERE DELIVERED TO PAUL P. NOYES, A PRIVATE CARRIER, FOR TRANSPORTATION TO THE BENICIA ARSENAL WHARF, A DISTANCE OF APPROXIMATELY 37 MILES. THE CARRIER ACCEPTED SAID MATERIALS UNDER HIS EXISTING CONTRACT OF AFFREIGHTMENT AND UNDERTOOK DELIVERY THEREOF IN TWO OF HIS BARGES, NOS. 105 AND 106, TOWED BY HIS GAS LAUNCH ANITA, WHICH WERE IN CHARGE OF A GASBOAT OPERATOR AND ONE HELPER. THE GAS BOAT AND BARGES LEFT THE FORT MASON DOCK WITH SUCH CARGO ABOUT 6.50 P.M., FEBRUARY 15, 1927. WHILE ON THE VOYAGE, AT ABOUT 3 O-CLOCK A.M. ON FEBRUARY 16, 1927, THE TOW AND THE BARGES ENCOUNTERED A STORM WHEN ONLY A SHORT DISTANCE FROM BENICIA ARSENAL, AND THE WIND BLEW SO HARD THAT THE WATER BECAME TOO ROUGH TO MAKE A LANDING AT THE DOCK AND THE TOW THEN SOUGHT SHELTER ACROSS THE CHANNEL ON THE MARTINEZ SIDE OF THE BAY; BUT WHEN ABOUT HALFWAY ACROSS THE CHANNEL THE LAUNCH ANITA LOST HER PROPELLER, WHICH RENDERED HER HELPLESS. THE TWO BARGES THEN COLLIDED AND ONE OF THEM CAPSIZED AND DUMPED HER CARGO INTO THE SEA, AFTER WHICH SHE RIGHTED HERSELF. THE LAUNCH WAS CAST OFF FROM THE BARGES, DRIFTED ABOUT 300 FEET, AND WAS THEN ANCHORED. THE VESSELS WERE PICKED UP ABOUT 4 P.M. OF THAT DAY BY THE MARINE VESSEL SOUTH SHORE AND TOWED TO BENICIA.

IN THE APPROVED REPORT OF SURVEY BY THE WAR DEPARTMENT'S ORDNANCE SURVEYING OFFICER, DATED APRIL 21, 1927, IT IS STATED:

I HAVE EXAMINED ALL AVAILABLE TESTIMONY IN THIS CASE, AND I HAVE PERSONALLY INVESTIGATED THE SAME, AND IT IS BY BELIEF THAT THE LOSS OF THE PROPERTY ENUMERATED HEREON OF THE VALUE OF TWENTY-NINE THOUSAND EIGHT HUNDRED AND SEVEN DOLLARS AND FIFTY-TWO CENTS ($29,807.52), WAS CAUSED, FIRST, BY THE CARRIER DISREGARDING THE STORM WARNINGS THAT * * * WERE DISPLAYED ON THE EVENING OF FEBRUARY 15, 1927; AND SECOND, BY THE CARRIER FAILING TO COMPLY WITH RULE 7,"WAR DEPARTMENT RULES AND REGULATIONS RELATIVE TO CARRYING EXPLOSIVES, SAN FRANCISCO BAY," WHICH PROVIDES THAT A COMPETENT PERSON SHALL BE ON EACH VESSEL CARRYING EXPLOSIVES, * * * AS HE HAD AGREED TO DO IN ACCEPTING HIS "PERMIT TO TRANSPORT EXPLOSIVES," * * *. FURTHER, THAT IF THE CARRIER HAD COMPLIED WITH RULE 7 MENTIONED ABOVE AND HAD A COMPETENT MAN BEEN ABOARD BARGE NO. 106 AT THE TIME THE PROPELLER SHAFT BROKE, HE COULD HAVE ANCHORED BARGE NO. 106 AND BY THUS KEEPING IT HEADED INTO THE WIND THE ACCIDENT WOULD HAVE BEEN AVOIDED.

THE CLAIMANT'S CONTENTION BEING OF NONLIABILITY UNDER THE PROVISIONS OF THIS ENACTMENT, IT WILL BE ASSUMED FOR THE PURPOSES OF THIS CONSIDERATION THAT THE CARRIERS HERE INVOLVED WERE A "VESSEL" WITHIN THE MEANING OF SAID ENACTMENT.

THE RELIEF AFFORDED BY SECTION 3 OF THE HARTER ACT, SUPRA, TO SHIPOWNERS IS PURELY STATUTORY, AND IN ORDER FOR A SHIPOWNER TO HAVE THE BENEFIT OF THE EXEMPTIONS THEREIN PROVIDED AGAINST ERRORS OF MANAGEMENT OR NAVIGATION, OR ARISING FROM DANGERS OF THE SEA, ACTS OF GOD, ETC., AS THEREIN SPECIFIED, THE BURDEN IS ON HIM TO PROVE AFFIRMATIVELY THAT THE VESSEL WAS "SEAWORTHY" AT THE BEGINNING OF THE VOYAGE, OR THAT DUE DILIGENCE HAD BEEN USED TO MAKE HER SO; AND THAT THE VESSEL WAS "PROPERLY MANNED, EQUIPPED, AND SUPPLIED.' IT IS ONLY WHEN HE HAS DISCHARGED THE BURDEN WHICH THE LAW IMPOSES UPON HIM, AND HAS SHOWN THAT SUCH REQUIREMENTS OF THE STATUTE HAVE BEEN COMPLIED WITH, THAT THE LAW RELIEVES HIM OF THE LIABILITY WHICH HE WOULD OTHERWISE INCUR. IN THIS CONNECTION SEE INTERNATIONAL NAVIGATION COMPANY V. FARR AND BAILEY MFG. COMPANY, 181 U.S. 218; THE SOUTHWARK, 191 U.S. 1; THE WILDCRAFT, 201 U.S. 378.

IN CONTRACTS FOR CARRIAGE BY SEA, THERE IS AN IMPLIED WARRANTY THAT THE VESSEL IS IN ALL RESPECTS SEAWORTHY IN FACT AND REASONABLY FIT TO CARRY THE PARTICULAR GOODS SPECIFIED IN THE BILL OF LADING. THE PRUSSIA, 93 FED.REP. 837; PACIFIC COAST S.S.CO. V. BANCROFT-WHITNEY CO. ET AL., 94 ID. 180; THE NELLIE FLOYD, 116 ID. 80; NEILSON V. COAL, CEMENT AND SUPPLY CO., 122 ID. 617; THE RAPPAHANNOCK, 184 ID. 291; BENNER LINE V. PENDLETON, ET AL., 217 ID. 497. A VESSEL'S LIABILITY FOR LOSS OR INJURY TO CARGO FROM A BREACH OF SUCH WARRANTY IS NOT AFFECTED BY THE HARTER ACT. THE STANFIELD, 92 FED.REP. 663; THE AGGI, 107 ID. 300; BENNER LINE V. PENDLETON ET AL., 217 ID. 497; THE JEANNIE, 225 ID. 178. THE REQUIREMENT OF SEAWORTHINESS INTENDS THAT THE SHIP SHALL BE IN A FIT STATE AS TO REPAIR, EQUIPMENT, CREW, AND IN ALL OTHER RESPECTS TO ENCOUNTER THE ORDINARY PERILS OF A CONTEMPLATED VOYAGE. THE TJOMO, 115 FED.REP. 919.

THE HARTER ACT RELIEVES CARRIERS FROM SOME OF THE HARSHER RULES OF OBLIGATION IN FORCE BEFORE ITS PASSAGE, BUT SUCH RELIEF IS CONDITIONED UPON THE DISCHARGE OF THE CARRIER'S DUTY TO USE DUE DILIGENCE TO PROVIDE THAT WHICH IT HOLDS OUT TO THE SHIPPER IT IS COMPETENT TO FURNISH, TO WIT, A SEAWORTHY VESSEL, PROPERLY MANNED, DULY EQUIPPED, AND SUPPLIED FOR THE PURPOSES OF THE CONTEMPLATED VOYAGE. THE SOUTHWARK, 191 U.S. 1. EXERCISING THE DEGREE OF CARE AND DILIGENCE IMPOSED BY THE HARTER ACT ON AN OWNER TO MAKE HIS VESSEL SEAWORTHY, HE IS REQUIRED TO TAKE SUCH PRECAUTIONS AS ARE REASONABLY ADEQUATE FOR THE PROTECTION OF THE CARGO AGAINST KNOWN PERILS, OR WHICH REASONABLE FORESIGHT MAY HAVE ANTICIPATED. THE R. P. FITZGERALD, 212 FED.REP. 678.

IN THE INSTANT CASE ON THE DAY THE CARRIER RECEIVED THE ORDNANCE MATERIALS FOR TRANSPORTATION THE GOVERNMENT WEATHER BUREAU REPORTS GAVE WARNINGS TO THE PUBLIC OF STORMY WEATHER OVER THE SAN FRANCISCO BAY REGION. THE CARRIER UNDERTOOK THE 37 MILE VOYAGE WITH THE LAUNCH AND TWO BARGES MANNED BY ONLY THE GAS-BOAT OPERATOR AND ONE OTHER MAN, WHEN THE WAR DEPARTMENT'S RULES AND REGULATIONS RELATIVE TO THE CARRYING OF EXPLOSIVES ON SAN FRANCISCO BAY--- AND WITH WHICH THE CARRIER HAD AGREED TO COMPLY--- REQUIRED EACH BARGE TO HAVE A MAN ABOARD. WHEN THE VOYAGE WAS ALMOST COMPLETED STORMY WEATHER WAS ENCOUNTERED THAT MADE THE SEA VERY ROUGH. FOR SOME UNEXPLAINED REASON THE PROPELLER OF THE LAUNCH BROKE AND RENDERED HER USELESS AS A TOW FOR THE BARGES. BEFORE THE CREW ABOARD SUCCEEDED IN ANCHORING THE BARGES COLLIDED AND ONE OF THEM CAPSIZED, DUMPING HER CARGO, THEN RIGHTED HERSELF. THE CARGO SO DUMPED INTO THE BAY WAS A TOTAL LOSS. IT DOES NOT APPEAR THAT THE STORM WAS AN EXTRAORDINARY GALE FOR THAT SEASON OF THE YEAR ON SAN FRANCISCO BAY, AND THE RECORD BEFORE THIS OFFICE DOES NOT DISCLOSE THAT THE CARGO WAS PROPERLY STOWED ON THE BARGES, OR THAT THE BARGES AND THE LAUNCH WERE PROPERLY EQUIPPED AND SUPPLIED FOR THE VOYAGE. IN ADDITION TO THE COURT DECISIONS HEREINABOVE CITED, RELATIVE TO THE MATTERS HERE INVOLVED, SEE: THE CARIB PRINCE, 170 U.S. 655 (18 SUP.CT. 753); THE G. R. BOOTH, 171 U.S. 450 (19 SUP.CT. 9); THE GERMANIC, 196 U.S. 589 (29 SUP.CT. 317); THE CALIMA, 82 FED.REP. 665; THE MANTOBA, 104 ID. 145; THE C. W. ELPHICKE, 122 ID. 439.

AS IT HAS NOT BEEN ESTABLISHED THAT THE CARRIER COMPLIED WITH THE REQUIREMENTS IMPOSED UPON HIM BY THE LAW RELATIVE TO THE CARGO AND ITS TRANSPORTATION IN ORDER TO BE GRANTED THE RELIEF PROVIDED BY SECTION 3 OF THE HARTER ACT, TO WIT, THAT THE VESSELS WERE EACH "IN ALL RESPECTS SEAWORTHY AND PROPERLY MANNED, EQUIPPED, AND SUPPLIED," TO ENCOUNTER THE ORDINARY PERILS OF THE CONTEMPLATED VOYAGE, AND THAT THE CARGO WAS PROPERLY LOADED OR STOWED ON THE BARGES, IT MUST BE HELD THE CARRIER IS LIABLE FOR THE DAMAGES SUSTAINED BY THE UNITED STATES ON ACCOUNT OF THE LOSS OF THE INVOLVED CARGO OF ORDNANCE MATERIALS, THE VALUE OF WHICH IS REPORTED BY THE WAR DEPARTMENT TO BE $29,807.52.