A-35838, APRIL 2, 1931, 10 COMP. GEN. 447

A-35838: Apr 2, 1931

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TRANSPORTATION - OCEAN SHIPMENTS - DAMAGES IN TRANSIT - "PERILS OF THE SEA" 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 WARRANTY IS NOT AFFECTED BY THE HARTER ACT OF FEBRUARY 13. THE RELIEF GRANTED TO CARRIERS BY SECTION 3 OF SAID ACT IS CONDITIONED UPON THE DISCHARGE OF THE CARRIER'S DUTY TO USE DUE DILIGENCE TO PROVIDE A SEAWORTHY VESSEL. WHERE A VESSEL RECEIVED GOODS OR PROPERTY IN GOOD CONDITION FOR WATER TRANSPORTATION AND SAME IS NOT DELIVERED AT DESTINATION IN LIKE ORDER AND CONDITION.

A-35838, APRIL 2, 1931, 10 COMP. GEN. 447

TRANSPORTATION - OCEAN SHIPMENTS - DAMAGES IN TRANSIT - "PERILS OF THE SEA" 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 WARRANTY IS NOT AFFECTED BY THE HARTER ACT OF FEBRUARY 13, 1893, 27 STAT. 445. THE RELIEF GRANTED TO CARRIERS BY SECTION 3 OF SAID ACT IS CONDITIONED UPON THE DISCHARGE OF THE CARRIER'S DUTY TO USE DUE DILIGENCE TO PROVIDE A SEAWORTHY VESSEL, PROPERLY MANNED, DULY EQUIPPED, AND SUPPLIED FOR THE PURPOSE OF THE CONTEMPLATED VOYAGE. WHERE A VESSEL RECEIVED GOODS OR PROPERTY IN GOOD CONDITION FOR WATER TRANSPORTATION AND SAME IS NOT DELIVERED AT DESTINATION IN LIKE ORDER AND CONDITION, A PORTION THEREOF HAVING BEEN LOST IN TRANSIT, A PRESUMPTION IS RAISED OF NEGLIGENCE ON THE PART OF THE CARRIER, AND IN ORDER TO BE RELIEVED OF RESULTANT DAMAGE TO THE SHIPPER THE BURDEN IS ON THE CARRIER TO SHOW THAT SUCH DAMAGE WAS DUE TO "PERILS OF THE SEA," OR TO ONE OF THE OTHER EXCEPTED CAUSES IN THE HARTER ACT OF FEBRUARY 13, 1893, 27 STAT. 445.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 2, 1931:

NORTON LILLY AND CO. APPLIED MARCH 10, 1931, FOR REVIEW OF SETTLEMENT OF FEBRUARY 6, 1931, BY WHICH WAS DISALLOWED ITS CLAIM FOR $53.31, THE AMOUNT DEDUCTED FROM VOUCHER NO. 8677, AUGUST, 1928, ACCOUNTS OF CAPT. FRANK BALDWIN, UNITED STATES NAVY, DISBURSING OFFICER, TO COVER THE DAMAGES SUSTAINED BY THE GOVERNMENT ON ACCOUNT OF THE LOSS OF CERTAIN NAVY DEPARTMENT SUPPLIES FROM A SHIPMENT BEING TRANSPORTED BY CLAIMANT, IN MARCH AND APRIL, 1928, ON ITS STEAMSHIP HEGIRA FROM NEW YORK, N.Y., TO SAN DIEGO, CALIF.

THE DEDUCTION OF $53.31 WAS MADE ON SAID VOUCHER NO. 8677 TO COVER THE VALUE OF THE SHORTAGE FOUND ON DELIVERY OF SUCH SHIPMENT AND THE AMOUNT OF PREPAID FREIGHT CHARGES THEREON, TO WIT:

TABLE VALUE OF 540 POUNDS OF NITRIC ACID AND 285 POUNDS OF MURIATIC

ACID LOST IN TRANSIT --------------------------------------- $39.78 FREIGHT CHARGES (PREPAID) ON SAID LOST SUPPLIES ------------- 13.53

TOTAL AMOUNT ------------------------------------------ 53.31

IT APPEARS THAT THE INVOLVED SHIPMENT CONTAINED 8 CASES OF NITRIC ACID AND 10 CASES OF MURIATIC ACID, THE COMBINED WEIGHT OF WHICH WAS 2,830 POUNDS; THAT WHEN SUCH SHIPMENT REACHED ITS DESTINATION IT WAS FOUND ON DELIVERY THEREOF THAT THERE WAS A SHORTAGE OF 540 POUNDS OF NITRIC ACID AND 285 POUNDS OF MURIATIC ACID, TOTALING 825 POUNDS.

THERE WOULD APPEAR TO BE NO QUESTION AS TO THE LOSS OF THE 825 POUNDS OF ACIDS FROM THE CARGO WHILE SAME WAS IN TRANSIT ABOARD THE CLAIMANT- CARRIER'S SHIP, AND THE CLAIMANT DOES NOT DISPUTE THE AMOUNT OF THE GOVERNMENT'S DAMAGE CLAIM RESULTING FROM SUCH LOSS. HOWEVER, THE CLAIMANT DENIES LIABILITY FOR THE DAMAGES AND CONTENDS THAT THE LOSS OF SAID CARGO WAS DUE TO THE "PERILS OF THE SEA," WHICH CAUSE WAS WITHOUT ITS FAULT AND BEYOND ITS CONTROL, AND THAT IT IS ENTITLED TO BE RELIEVED FROM ANY LIABILITY FOR DAMAGES RESULTING FROM SUCH CARGO LOSS UNDER THE PROVISIONS OF THE HARTER ACT OF FEBRUARY 13, 1893, 27 STAT. 445.

THE SAID ACT OF FEBRUARY 13, 1893, 27 STAT. 445, PROVIDED:

SEC. 3. 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 OF 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.

WITH REFERENCE TO THE LOSS OF SAID CARGO, THE CLAIMANT IN LETTER OF DECEMBER 9, 1930, TO THE NAVY DEPARTMENT, STATED:

OUR INVESTIGATION OF THIS CLAIM DEVELOPS THAT THE LOSS WAS OCCASIONED BY REASON OF THE CARGO HAVING BEEN WASHED OVERBOARD DURING THE UNUSUALLY ROUGH AND BOISTEROUS WEATHER ENCOUNTERED BY THE VESSEL, AS EVIDENCED BY CHIEF OFFICER'S LOG BOOK, AN EXTRACT OF WHICH WE ATTACH HERETO. THIS IS A LOSS DUE TO PERILS OF THE SEA AND IS ONE FOR WHICH THE VESSEL IS NOT LIABLE. * * *

AGAIN, WITH REFERENCE TO THIS MATTER, THE CLAIMANT IN LETTER TO THIS OFFICE DATED MARCH 10, 1931, STATED:

* * * THIS SHIPMENT WAS STOWED ON DECK AND THE BILL OF LADING CONTRACT SO CLAUSED. IT IS FURTHER TRUE THAT IT IS CUSTOMARY, AND IN FACT A REQUIREMENT OF THIS TRADE THAT GOODS OF THIS NATURE BE CARRIED ON DECK AND NOT UNDER DECK. IT IS FURTHER TRUE THAT THE SHIPMENT WAS PROPERLY SECURED AND LASHED AND EVERY PRECAUTION TAKEN TO INSURE THE SAFE ARRIVAL OF THE GOODS. HOWEVER, DUE TO THE EXTRAORDINARY WEATHER CONDITIONS ENCOUNTERED BY THE VESSEL, 5 CASES WERE TORN LOOSE AND WASHED OVERBOARD AND SEVERAL CASES BROKEN AND CONTENTS LOST BY REASON OF MOUNTAINOUS SEAS WASHING OVER DECKS.

IT IS A WELL SETTLED RULE OF LAW THAT, IN THE ABSENCE OF A VALID AGREEMENT TO THE CONTRARY, THE OWNER OF A SHIP CARRYING GOODS FOR HIRE IS A COMMON CARRIER WITH THE LIABILITY OF AN INSURER AGAINST ALL LOSSES, EXCEPTING THOSE CAUSED BY THE ACT OF GOD AND PUBLIC ENEMIES. THE NIAGARA, 21 HOW. (U.S.) 723; THE LADY PIKE, 21 WALL. (U.S.) 1, 14; LIVERPOOL AND GREAT WESTERN S. CO., 129 U.S. 397, 437; AND THE FOLMINA, 212 U.S. 354, 361. GENERALLY, A COMMON CARRIER RECEIVING GOODS FOR SHIPMENT IS LIABLE FOR THEIR DAMAGE OR LOSS AS SUCH COMMON CARRIER WHILE SAME ARE IN TRANSIT, UNLESS SAME RESULTED FROM CAUSES EXCUSABLE UNDER THE TERMS OF THE CONTRACT, OR FROM AN ACT OF GOD OR PUBLIC ENEMIES. THE HARTER ACT RELIEVES THE 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 A SEAWORTHY VESSEL, PROPERLY MANNED, DULY EQUIPPED AND SUPPLIED FOR THE PURPOSE 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.

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 OR PERILS 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 THE SHIPOWNER OF THE LIABILITY WHICH HE WOULD OTHERWISE INCUR. IN THIS CONNECTION SEE INTERNATIONAL NAVIGATION CO. V. FARR AND BAILEY MFG. CO., 181 U.S. 218; THE SOUTHWARK, 191 U.S. 1; THE WILDCRAFT, 201 U.S. 378; THE FOLMINA, 212 U.S. 354; THE FREY, 106 FED.REP. 319; THE GOVERNOR POWERS, 243 FED.REP. 961; THE JOHN TWOHY, 279 FED.REP. 343; O.Y. TONNAGE, A.B. ET AL. V. TEXAS CO., 296 FED.REP. 893; AND ALEXANDER ECCLES AND CO. V. STRACHAN SHIPPING CO., 21 FED.REP. (2D SERIES), 653.

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 FED.REP. 180; THE NELLIE FLOYD, 116 FED.REP. 80; NEILSON V. COAL, CEMENT AND SUPPLY CO., 122 FED. REP. 617; THE RAPPAHANNOCK, 184 FED.REP. 291; BENNER LINE V. PENDLETON ET AL., 217 FED.REP. 497. A VESSEL'S LIABILITY FOR LOSS OR INJURY TO CARGO FROM A BREACH OF SUCH WARRANTY IS NOT AFFECTED BY THE HARTER ACT. SEE THE STANFELD, 92 FED.REP. 663; THE AGI., 107 FED.REP. 300; THE JEANNIE, 225 FED.REP. 178. THE REQUIREMENT OF SEAWORTHINESS AT THE BEGINNING OF A VOYAGE INCLUDES, NOT ONLY SEAWORTHINESS IN HULL AND EQUIPMENT, BUT ALSO IN THE STOWAGE OF THE CARGO. THE FREY, 92 FED.REP. 667; CORSAR V. J. D. SPRECKELS AND BROS. CO., 141 FED.REP. 260; AND THE MEDEA, 179 FED.REP. 781. IT IS INTENDED BY SUCH SEAWORTHY REQUIREMENT 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 THE CONTEMPLATED VOYAGE. THE TJOMO, 115 FED.REP. 919. AND, ALSO, THAT THE CARGO BE LOADED AND STORED IN SUCH MANNER THAT IT MAY BE TRANSPORTED SAFELY TO ITS DESTINATION WITHOUT DAMAGE OR LOSS FROM THE ORDINARY PERILS OF THE CONTEMPLATED VOYAGE. THE ONEIDA, 108 FED.REP. 86; AND STEAMSHIP WELLESLEY CO. V. C. A. HOOPER AND CO., 185 FED.REP. 733.THE DUTY OF THE CARRIER IS DISCHARGED ONLY BY THE TAKING OF PRECAUTIONS AND THE EXERCISE OF CARE, REASONABLY ADEQUATE FOR THE PROTECTION OF THE CARGO AGAINST THE PERILS WHICH ARE KNOWN TO EXIST OR WHICH BY THE EXERCISE OF REASONABLE FORESIGHT MAY BE ANTICIPATED. THE JEAN BART, 197 FED.REP. 1003.

WHERE A SHIPMENT OF GOODS IN THE CUSTODY OF A CARRIER IS DAMAGED OR LOST, THE PRIMA FACIE PRESUMPTION IS THAT SUCH DAMAGE OR LOSS IS DUE TO THE FAULT OF THE CARRIER AND THE BURDEN IS UPON HIM TO PROVE THAT SUCH DAMAGE OR LOSS WAS DUE TO CAUSES FOR WHICH HE IS NOT LEGALLY RESPONSIBLE. ROBINSON ET AL. V. THE MAGGIE M., 30 FED.REP. 692; THE SAMUEL E. SPRING, 29 FED.REP. 398; AND CHICOPEE BANK V. PHILADELPHIA BANK, 8 WALL. 650.

IN THE INSTANT MATTER THE CLAIMANT HAS PRESENTED AN EXTRACT OF THE LOG OF THE CHIEF OFFICER OF THE S.S. HEGIRA FOR THE VOYAGE ON WHICH THE INVOLVED SHIPMENT OF ACIDS WAS CARRIED, FROM WHICH IT APPEARS THAT SAID SHIP LEFT LOCUST POINT, BALTIMORE, MD., ON MARCH 12, 1928, AND ARRIVED AT SAN DIEGO, CALIF., ON APRIL 16, 1928; THAT DURING THE NIGHT OF MARCH 27, 1928, THE VESSEL WAS SHIPPING HEAVY WATER OVER THE DECKS AND THAT THE CASES OF ACID STOWED AND LASHED AROUND MAIN MAST WERE TORN ADRIFT; AND THAT DUE TO "FRESH GALE," "HIGH HEAVY SEA" AND "HEAVY WIND AND RAIN SQUALLS" FIVE CASES OF THE GOVERNMENT'S SAID ACID SHIPMENT WASHED OVERBOARD AND OTHER CASES WERE BROKEN OPEN AND A PART OF THEIR CONTENTS LOST. THE PRESENT RECORD DOES NOT SHOW THAT SUCH WEATHER CONDITIONS AS SO REPORTED WERE UNUSUAL OR EXTRAORDINARY FOR THAT SEASON OF THE YEAR IN THAT PARTICULAR VICINITY; AND IT HAS NOT BEEN SHOWN THAT THE CARGO WAS PROPERLY AND SAFELY STOWED, AND THAT THE SHIP WAS PROPERLY EQUIPPED, MANNED, 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; THE G. R. BOOTH, 171 U.S. 450; THE GERMANIC, 196 U.S. 589; THE COLIMA, 82 FED.REP. 665; THE MANITOBA, 104 FED.REP. 145; THE C. W. ELPHICKE, 122 FED.REP. 439. IN THIS CONNECTION SEE, ALSO, 7 COMP. GEN., PAGES 86 AND 370.

AS IT HAS NOT BEEN ESTABLISHED THAT THE CARRIER COMPLIED WITH THE REQUIREMENTS IMPOSED UPON IT BY THE LAW RELATIVE TO THE INVOLVED CARGO AND ITS TRANSPORTATION IN ORDER TO BE GRANTED THE RELIEF PROVIDED BY SECTION 3 OF THE HARTER ACT, SUPRA, THE DISALLOWANCE OF THE CLAIM AS PER THE SETTLEMENT OF FEBRUARY 6, 1931, IS SUSTAINED.