A-55013, MAY 10, 1934, 13 COMP. GEN. 342

A-55013: May 10, 1934

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THE UNITED STATES IS NOT LIABLE FOR THE VALUE OF THE LAUNCH WHERE IT WAS LOST AS THE RESULT OF THE NAVIGATION OF THE PILOT WHILE BEING USED FOR THE PURPOSE CONTEMPLATED BY THE LEASE. 1934: I HAVE YOUR LETTER OF APRIL 12. BAILEY WAS ALSO EMPLOYED BY THE COAST AND GEODETIC SURVEY AS LAUNCH ENGINEER AT $1. THE BUREAU MAKES A PRACTICE OF STATING IN THE PROPOSAL BEFORE THE LAUNCHES ARE HIRED THAT THE OWNER. WILL BE HIRED AS LAUNCH ENGINEER AND OPERATOR AT A STATED AMOUNT. AS THE OWNER WILL FREQUENTLY BID IN HIS LAUNCH AT A VERY LOW PRICE IN ORDER TO GET THE JOB. IT ALSO RESULTS IN THIS BUREAU OBTAINING MEN THAT ARE FAMILIAR WITH LOCAL WATERS AND IT GIVES THE OWNER AN OPPORTUNITY TO MAKE SURE THAT GOOD CARE IS TAKEN OF THE MACHINERY IN HIS LAUNCH.

A-55013, MAY 10, 1934, 13 COMP. GEN. 342

LEASES - VESSELS - DESTRUCTION UNDER A LEASE AGREEMENT COVERING THE HIRE OF A LAUNCH BY THE COAST AND GEODETIC SURVEY, PROVIDING FOR THE EMPLOYMENT OF THE OWNER AS PILOT AND COXSWAIN AND PROVIDING THAT THE BOAT BE YIELDED UP IN AS GOOD CONDITION AS WHEN RECEIVED, THE UNITED STATES IS NOT LIABLE FOR THE VALUE OF THE LAUNCH WHERE IT WAS LOST AS THE RESULT OF THE NAVIGATION OF THE PILOT WHILE BEING USED FOR THE PURPOSE CONTEMPLATED BY THE LEASE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, MAY 10, 1934:

I HAVE YOUR LETTER OF APRIL 12, 1934, AS FOLLOWS:

UNDER DATE OF NOVEMBER 16, 1933, THE COAST AND GEODETIC SURVEY OF THIS DEPARTMENT ENTERED INTO A LEASE WITH JOHN B. BAILEY, OF MARTIN'S POINT, SOUTH CAROLINA, FOR THE HIRE OF HIS LAUNCH FOR USE IN CONNECTION WITH THE WORK OF THE SURVEY. MR. BAILEY WAS ALSO EMPLOYED BY THE COAST AND GEODETIC SURVEY AS LAUNCH ENGINEER AT $1,440 PER ANNUM. THE BUREAU MAKES A PRACTICE OF STATING IN THE PROPOSAL BEFORE THE LAUNCHES ARE HIRED THAT THE OWNER, OR HIS REPRESENTATIVE, WILL BE HIRED AS LAUNCH ENGINEER AND OPERATOR AT A STATED AMOUNT. IT HAS BEEN FOUND THAT THIS PRACTICE USUALLY RESULTS IN OBTAINING LAUNCHES AT A VERY LOW FIGURE, AS THE OWNER WILL FREQUENTLY BID IN HIS LAUNCH AT A VERY LOW PRICE IN ORDER TO GET THE JOB. IT ALSO RESULTS IN THIS BUREAU OBTAINING MEN THAT ARE FAMILIAR WITH LOCAL WATERS AND IT GIVES THE OWNER AN OPPORTUNITY TO MAKE SURE THAT GOOD CARE IS TAKEN OF THE MACHINERY IN HIS LAUNCH.

THE COAST AND GEODETIC SURVEY STATES THAT ON NOVEMBER 29, 1933, IT WAS NECESSARY TO LAND A SURVEY PARTY NEAR CHARLESTON LIGHTHOUSE AND AN ATTEMPT HAD BEEN MADE TO REACH THAT LIGHTHOUSE BY A SHELTERED ROUTE THROUGH LIGHTHOUSE CREEK, BUT, OWING TO THE LOW STAGE OF THE TIDE, THE LAUNCH COULD NOT GET THROUGH. THE SURVEY FURTHER SETS FORTH, IN EFFECT, AS FOLLOWS: MR. BAILEY, WHO WAS PILOTING THE LAUNCH, THEN THOUGHT THAT HE COULD LAND THE PARTY AT LIGHTHOUSE INLET ON THE OUTSIDE COAST AND THE LAUNCH PROCEEDED TO THAT POINT. WHILE LIGHTHOUSE INLET IS DEEP INSIDE, IT HAS A SHALLOW BAR ACROSS THE ENTRANCE. THESE BARS ARE NEVER STABLE AND CHANGE CONSTANTLY. BAILEY APPROACHED THE BAR SLOWLY IN SEARCH OF A CHANNEL THROUGH WHICH HE MIGHT PASS. THERE APPEARED TO BE LITTLE SURF AT THIS TIME. UNDER SUCH CONDITIONS, IF A BOAT TOUCHES, IT CAN USUALLY BE BACKED OFF BY ITS OWN POWER. THIS HAPPENED ONCE AND THE BOAT WAS BACKED OFF BY ITS OWN POWER. ON THE SECOND ATTEMPT TO FIND THE CHANNEL THE BOAT AGAIN RAN AGROUND DESPITE THE FACT THAT BAILEY HAD A MAN SOUNDING AS HE APPROACHED THE BAR. THE ENGINE WAS REVERSED AND THE MEN ON THE LAUNCH JUMPED OVERBOARD AND TRIED TO SHOVE THE BOAT OFF, BUT WITHOUT RESULTS.

THE FACT THAT THE BOAT COULD NOT BE FREED WAS PROBABLY DUE TO THE PECULIAR CHARACTER OF THE SAND WHICH FORMED A SUCTION ON THE BOTTOM OF THE BOAT AND HELD IT FAST. THE CURRENT ALSO PROBABLY TENDED TO SET HER ON THE BAR. IT APPEARS THAT THE MEN ON THE LAUNCH DID EVERYTHING POSSIBLE TO FLOAT IT, BUT THE TASK WAS SIMPLY BEYOND THEIR CAPACITY.

IN ATTEMPTING TO LAND AT LIGHTHOUSE INLET, MR. BAILEY MADE A SEAMAN'S DECISION AND IT PROVED TO BE WRONG. IN THE WORK OF THE COAST AND GEODETIC SURVEY WE CAN NEVER BE ENTIRELY SAFE. LANDINGS HAVE TO BE MADE WHEN IT IS WELL KNOWN THAT THERE IS MORE OR LESS DANGER INVOLVED. IT APPEARS, THEREFORE, THAT IN AN ATTEMPT TO EXPEDITE THE WORK OF THE PARTY, BAILEY USED WHAT PROVED TO BE BAD JUDGMENT IN ATTEMPTING TO NAVIGATE HIS LAUNCH FROM SEA INTO LIGHTHOUSE INLET, AND THE TOTAL LOSS OF THE LAUNCH RESULTED.

PARAGRAPH 6 OF THE LEASE PROVIDES:

"AT THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE THE LESSEE SHALL YIELD UP SAID LAUNCH TO THE LESSOR IN AS GOOD CONDITION AS WHEN RECEIVED, LOSS AND DAMAGE BY FIRE, ACT OF GOD, AND ORDINARY WEAR AND TEAR EXCEPTED.'

MR. BAILEY HAS SUBMITTED A CLAIM IN THE AMOUNT OF $800.00 FOR THE LOSS OF HIS LAUNCH.

LIEUTENANT B. H. RIGG, THE CHIEF OF PARTY, STATES THAT HE CONSIDERS $800 A FAIR AND JUST PRICE FOR THE LAUNCH. MR. BAILEY HAS SUBMITTED LETTERS FROM THREE DISINTERESTED PARTIES STATING THAT THEY CONSIDER $800 AS A FAIR VALUATION OF THE LAUNCH. THE CHARACTER AND RELIABILITY OF THESE THREE MEN ARE ESTABLISHED BY A LETTER FROM THE LOCAL INSPECTORS OF THE STEAMBOAT INSPECTION SERVICE.

IN VIEW OF THE ABOVE FACTS, YOUR DECISION IS REQUESTED AS TO WHETHER THE GOVERNMENT IS LIABLE FOR THE LOSS OF THIS LAUNCH.

THE LEASE DATED NOVEMBER 16, 1933, COVERING THE RENTAL OF THE LAUNCH NO. U-1169, UNTIL JUNE 30, 1934, CONTAINED PROVISIONS AS FOLLOWS:

(B) THAT THE SAID LESSOR SHALL, DURING THE TERM OF THIS LEASE OR ANY RENEWAL THEREOF, KEEP THE SAID LAUNCH IN GOOD CONDITION AND REPAIR AND FIT FOR THE USE FOR WHICH IT WAS LEASED, AND IN CASE IT IS NOT AVAILABLE AT ANY TIME OR IS LAID UP FOR REPAIRS, THE SAID LESSEE SHALL NOT BE CHARGED ANY RENT DURING SUCH PERIOD OF DISABILITY.

(C) THAT IN CASE OF FAILURE AT ANY TIME TO COMPLY WITH ANY OF THE TERMS, CONDITIONS, AND REQUIREMENTS OF THIS LEASE ACCORDING TO THE TRUE INTENT AND MEANING THEREOF, WHEREBY THE SERVICE OF THE SAID LAUNCH IS NOT AVAILABLE WHEN REQUIRED, OR IT IS NOT KEPT IN PROPER CONDITION FOR SERVICE BY THE LESSOR, A SUITABLE LAUNCH, FULLY EQUIPPED AND PROVIDED AS THE ONE HEREIN DESCRIBED, SHALL BE FURNISHED BY THE LESSOR AND AT HIS EXPENSE, OR THE REPRESENTATIVE OF THE LESSEE IN CHARGE MAY, WITH THE APPROVAL OF THE DIRECTOR, TERMINATE THIS LEASE AND SECURE A SUITABLE LAUNCH UPON COMPETITIVE BIDS OR OTHERWISE, IN WHICH EVENT THE SAID LESSOR SHALL REMAIN LIABLE FOR ANY EXCESS IN COST AND ANY OTHER DAMAGES SUSTAINED BY THE SAID LESSEE ON ACCOUNT OF SUCH DEFAULT.

3. THIS LEASE MAY BE TERMINATED AT ANY TIME BY THE LESSEE UPON GIVING NOTICE IN WRITING TO THAT EFFECT TO THE LESSOR.

4. AT THE OPTION OF THE LESSEE THIS LEASE, WITH ALL ITS COVENANTS AND AGREEMENTS, MAY BE RENEWED UNDER THE SAME TERMS AND CONDITIONS, AND AT THE SAME RENTAL, FOR A FURTHER PERIOD OF SIX MONTHS, ENDING NOT LATER THAN DECEMBER 31, 1934, UPON FIFTEEN DAYS WRITTEN NOTICE OF ITS INTENTION TO SO RENEW.

6. AT THE EXPIRATION OF EARLIER TERMINATION OF THIS LEASE THE LESSEE SHALL YIELD UP SAID LAUNCH TO THE LESSOR IN AS GOOD CONDITION AS WHEN RECEIVED, LOSS AND DAMAGE BY FIRE, ACT OF GOD, AND ORDINARY WEAR AND TEAR EXCEPTED.

7. FOR AND IN CONSIDERATION OF THE ABOVE COVENANTS AND AGREEMENTS THE LESSEE SHALL PAY TO THE LESSOR AS RENT FOR SAID LAUNCH THE SUM OF TWENTY- FOUR DOLLARS AND NO CENTS ($24.00) PER MONTH, PAYABLE ON THE FIRST DAY OF EACH MONTH FOR THE MONTH PRECEDING, OR AS SOON THEREAFTER AS PROPERTY PREPARED AND APPROVED VOUCHERS ARE RECEIVED BY THE PROPER DISBURSING OFFICER.

PARAGRAPHS (B) AND (C), SUPRA, CONTEMPLATED AND PROVIDED FOR THE HAPPENING OF SUCH INCIDENT AS OCCURRED HERE. THERE APPEARS NO DOUBT FROM THE LANGUAGE USED THAT THE PARTIES INTENDED THAT IF AT ANY TIME DURING THE TERM OF THE LEASE THE LAUNCH BECAME DISABLED, LAID UP FOR REPAIRS, OR DESTROYED WHILE BEING USED FOR THE PURPOSE CONTEMPLATED BY THE LEASE, RENT WOULD NOT BE PAYABLE FOR THE PERIOD OF SUCH DISABILITY. ALSO, THAT IT WAS NOT ONLY INCUMBENT UPON THE LESSOR TO EFFECT THE NECESSARY REPAIRS BUT IT WAS AGREED IN THE EVENT THE LAUNCH BECAME UNSERVICEABLE A SUITABLE ONE WAS TO BE PROVIDED FOR BY THE LESSOR AT HIS EXPENSE OR THE REPRESENTATIVE OF THE LESSEE IN CHARGE, WITH THE APPROVAL OF THE DIRECTOR, COULD TERMINATE THE LEASE AND SECURE A SUITABLE LAUNCH UPON COMPETITIVE BIDS OR OTHERWISE, IN WHICH EVENT THE LESSOR REMAINED LIABLE FOR ANY EXCESS COST OR ANY OTHER DAMAGE SUSTAINED BY THE LESSEE ON ACCOUNT OF SUCH DEFAULT.

IN SHEA V. UNITED STATES, 26 CT.CLS. 29, COMMENTING ON A SIMILAR CONTRACT THE COURT SAID:

* * * LIKE ALL OTHER CONTRACTS, ITS MEANING, FORCE, AND EFFECT, WHEN A CONTROVERSY ARISES, ARE TO BE DETERMINED BY THE COURT UPON THE LANGUAGE EMPLOYED IN CONNECTION WITH THE SUBJECT-MATTER, THE SURROUNDING CIRCUMSTANCES, AND THE ACTS OF THE PARTIES. (GIBBONS CASE, 15 C.CLS.R., 174; OTIS CASE, 19 C.CLS.R., 174; OTIS CASE, 19 C.CLS.R., 467; AND OTIS CASE, 20 C.CLS.R., 315.)

IT APPEARS THAT THE LESSOR BASES HIS CLAIM FOR RECOVERY UPON PARAGRAPH NUMBERED 6 OF THE LEASE, QUOTED, SUPRA, RELATIVE TO YIELDING UP THE LAUNCH IN AS GOOD CONDITION AS WHEN RECEIVED. IT APPEARS THAT THE LAUNCH WAS LEASED FROM THE OWNER WHO WAS EMPLOYED AS OPERATOR AND COXSWAIN BECAUSE OF THE REQUIREMENT OF NATIVE SKILL AND EXPERIENCE IN THE OPERATION THEREOF AND GENERAL KNOWLEDGE OF THE CHANNELS, BARS, FLATS, ETC., IN THE BAYS AND WATERWAYS IN THE VICINITY OF THE HARBOR OF CHARLESTON, S.C. IT FURTHER APPEARS THAT THE LAUNCH WAS BEING USED FOR THE PURPOSE CONTEMPLATED BY THE LEASE AND WAS UNDER THE CONTROL AND WAS BEING HANDLED BY THE CLAIMANT AT THE TIME SHE WAS RUN AGROUND.

THE UNITED STATES WAS NOT AN ABSOLUTE INSURER OF THE LAUNCH AGAINST ALL LOSS, DAMAGE, OR DESTRUCTION UNDER THE TERMS OF THE LEASE. THE LEASING OF THE LAUNCH WAS CONTINGENT UPON THE EMPLOYMENT OF THE OWNER, OR THE DESIGNATION BY HIM OF A COMPETENT REPRESENTATIVE AS ENGINEER AND COXSWAIN, TO HAVE FULL RESPONSIBILITY FOR THE OPERATION AND SAFETY OF THE LAUNCH. UNDER THE TERMS OF THE LEASE THE UNITED STATES, IN EFFECT, CONTRACTED ONLY FOR THE SERVICES OF THE LAUNCH AND ITS OPERATOR, IT BEING CLEARLY CONTEMPLATED THAT THE CHOOSING OF THE COURSES TO BE RUN AND CHANNELS TO BE NAVIGATED IN REACHING DESIGNATED LOCATIONS WHERE COAST AND GEODETIC SURVEY WORK WAS TO BE PERFORMED WAS TO BE LEFT ENTIRELY TO THE DISCRETION OF THE OWNER WHO WAS REQUIRED TO BE A COMPETENT PERSON FAMILIAR WITH LOCAL WATERS. THERE IS NO PROOF OR ALLEGATION THAT ANY REPRESENTATIVE OF THE UNITED STATES OVERSAW OR DIRECTED THE PILOTING OF THE LAUNCH. ON THE CONTRARY, IT APPEARS THAT THE OWNER SELECTED THE COURSE HIMSELF WITHOUT INSTRUCTION FROM THE CHIEF OF THE FIELD PARTY OR OTHERWISE. THE LOSS OF THE LAUNCH WAS BEYOND A REASONABLE DOUBT THE RESULT OF ONE OF THE RISKS ENCOUNTERED BY THE OWNERS OF ALL SMALL BOATS ENGAGED IN NAVIGATING COASTAL WATERS, ESPECIALLY WHERE IT IS NECESSARY TO GO INTO OUTSIDE WATERS OF THE ATLANTIC OCEAN IN THAT LOCALITY, AND WAS NOT THE RESULT OF ANY FAULT OR NEGLIGENCE ON THE PART OF THE UNITED STATES. AS NEGLIGENCE IS NOT ATTRIBUTABLE TO THE UNITED STATES IN THIS CASE THE LOSS OF THE LAUNCH MUST FALL ON THE OWNER.