A-55796, MAY 24, 1934, 13 COMP. GEN. 385

A-55796: May 24, 1934

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TRANSPORTATION - OCEAN SHIPMENTS - DAMAGES IN TRANSIT - PERILS OF THE SEA WHERE IT IS NOT SHOWN THAT THE WEATHER ENCOUNTERED WAS OTHERWISE THAN MIGHT REASONABLY HAVE BEEN EXPECTED ON THE VOYAGE IN QUESTION. THE MERE FACT THAT ROUGH SEAS BOARDED THE DECK ON WHICH CARGO WAS LOADED. IS NOT SUFFICIENT TO ESTABLISH THE EXISTENCE OF A "PERIL OF THE SEA" SO AS TO RELIEVE THE CARRIER FROM LIABILITY FOR THE DAMAGE. WHEREIN THERE WAS DISALLOWED ITS CLAIM FOR $37.03. THE DIMENSIONS OF THE CASE WERE INDICATED ON THE BILL OF LADING AS BEING 32 FEET 2 INCHES LONG. THE CUBIC VOLUME IS SHOWN AS 2. THE CARRIER URGES THAT THE DAMAGE WAS DUE TO THE FACT THAT THE VESSEL ENCOUNTERED HEAVY SEAS. IN SUPPORT OF THIS CONTENTION IT HAS SUBMITTED AN AFFIDAVIT FROM THE MASTER OF THE VESSEL TO THE EFFECT THAT THE FOLLOWING IS A TRUE ABSTRACT FROM THE SHIP'S LOG: SEPTEMBER 11.

A-55796, MAY 24, 1934, 13 COMP. GEN. 385

TRANSPORTATION - OCEAN SHIPMENTS - DAMAGES IN TRANSIT - PERILS OF THE SEA WHERE IT IS NOT SHOWN THAT THE WEATHER ENCOUNTERED WAS OTHERWISE THAN MIGHT REASONABLY HAVE BEEN EXPECTED ON THE VOYAGE IN QUESTION, THE MERE FACT THAT ROUGH SEAS BOARDED THE DECK ON WHICH CARGO WAS LOADED, CAUSING THE CARGO TO BE SHIFTED WITH RESULTANT DAMAGE THERETO, IS NOT SUFFICIENT TO ESTABLISH THE EXISTENCE OF A "PERIL OF THE SEA" SO AS TO RELIEVE THE CARRIER FROM LIABILITY FOR THE DAMAGE.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 24, 1934:

THE LOS ANGELES STEAMSHIP CO. (MATSON NAVIGATION CO., AGENTS) HAS REQUESTED A REVIEW OF SETTLEMENT T-88776 1/2, DATED AUGUST 28, 1933, WHEREIN THERE WAS DISALLOWED ITS CLAIM FOR $37.03, DEDUCTED IN CONNECTION WITH THE PAYMENT OF FREIGHT CHARGES CLAIMED IN ITS BILL NO. 99, COVERING CHARGES FOR THE TRANSPORTATION OF AIRPLANE PARTS FROM SAN DIEGO, CALIF., TO HONOLULU, HAWAII, PER BILL OF LADING N-856203, DATED AUGUST 26, 1932, THE DEDUCTION HAVING BEEN MADE BECAUSE OF DAMAGE IN TRANSIT TO A CASE OF WING PANELS.

THE BILL OF LADING IN QUESTION BEARS THE NOTATION,"CASE WEIGHING 9910 LBS., WING PANELS RECEIVED IN DAMAGED CONDITION, CONTENTS SLIGHTLY DAMAGED. COST TO REPAIR DAMAGES PARTS $37.03. SURVEY 41-33 DATED 27 SEPTEMBER 1932. RESPONSIBILITY: LOS ANGELES S.S. CO.' THE DIMENSIONS OF THE CASE WERE INDICATED ON THE BILL OF LADING AS BEING 32 FEET 2 INCHES LONG, 8 FEET 5 INCHES WIDE, AND 10 FEET 5 INCHES HIGH, AND THE CUBIC VOLUME IS SHOWN AS 2,820 CUBIC FEET.

THE CARRIER URGES THAT THE DAMAGE WAS DUE TO THE FACT THAT THE VESSEL ENCOUNTERED HEAVY SEAS. IN SUPPORT OF THIS CONTENTION IT HAS SUBMITTED AN AFFIDAVIT FROM THE MASTER OF THE VESSEL TO THE EFFECT THAT THE FOLLOWING IS A TRUE ABSTRACT FROM THE SHIP'S LOG:

SEPTEMBER 11, 1932.--- 9:40 P.M., SHIPPED HEAVY SEA FORE DECK--- 1 BOX AEROPLANE SHIFTED DAMAGING BOTTOM OF BOX AND CARRIED AWAY HOUSING ON STEAM PIPES, CHANGED COURSE TO 180 DEGREES WHEEL-HOUSE--- CREW SECURING BOX--- WIND N.W. 4--- MODERATE CONFUSED SEA AND SWELL SHIPPING HEAVY SEAS.

IN ITS REQUEST FOR REVIEW THE CARRIER STATES:

THE FORCE OF THE WIND HAS IN THIS PARTICULAR INSTANCE NO BEARING ON THE QUESTION OF LIABILITY. BY REFERRING TO THE EVIDENCE WE HAVE SUBMITTED, YOU WILL FIND THAT THE VESSEL SHIPPED A HEAVY SEA AND THAT THE BOXED AIRPLANE SHIFTED, CAUSING THE DAMAGE INVOLVED. IT IS FURTHER STATED THAT THE SEA BOARDED THE VESSEL WITH SUCH FORCE AS TO CARRY AWAY THE HOUSING ON THE STEAM LINES. SURELY A SEA HEAVY ENOUGH SO AS TO TEAR LOOSE HEAVY STEEL PLATE PIPE COVERINGS CANNOT BE CONSIDERED AS ONE OF ORDINARY NATURE.

FROM THIS WE BELIEVE YOU WILL AGREE THAT, AS PREVIOUSLY STATED, REGARDLESS OF THE FORCE OF THE WIND THE DAMAGE WAS CAUSED PURELY AND SOLELY BY THE HEAVY SEA SHIPPED ON THE FORE DECK. NEEDLESS TO SAY, IT IS NOT AN UNCOMMON OCCURRENCE FOR VESSELS TO BE IN THE MIDST OF HEAVY SEAS AND SWELLS WITHOUT ANY ACCOMPANYING STRONG WIND. IN OTHER WORDS, THE WIND AT THE PARTICULAR TIME THIS INCIDENT OCCURRED HAD PROBABLY SUBSIDED, BUT THE SEA WAS UNQUESTIONABLY ROUGH, CAUSING THE VESSEL TO ROLL AND PITCH IN THE HEAVY SWELLS.

IT IS THUS INDICATED THAT THE DAMAGE RESULTED FROM HEAVY SEAS BOARDING THE DECK ON WHICH THE CASE OF AIRPLANE PARTS WAS LOADED, CAUSING THE CASE TO BE SHIFTED. THERE IS NOTHING TO SHOW, HOWEVER, THAT THE WEATHER ENCOUNTERED WAS OTHERWISE THAN MIGHT REASONABLY HAVE BEEN EXPECTED ON THE VOYAGE IN QUESTION OR THAT THE CASE, IF PROPERLY STOWED AND SECURED, WOULD NOT HAVE WITHSTOOD THE ROUGH SEAS WITHOUT DAMAGE. THE MERE FACT THAT AS A RESULT OF THE ROUGH SEA THE CASE WAS SHIFTED TEARING AWAY THE HOUSING ON THE STEAM PIPES, WOULD NOT APPEAR CONCLUSIVE ON THE POINT. WHERE WEATHER ENCOUNTERED ON A VOYAGE IS NOT MORE SEVERE THAN MIGHT BE EXPECTED, PERIL OF THE SEA IS NO DEFENSE FOR INJURIES TO GOODS FROM IMPROPER STOWAGE. THE ROSALIA, 264 FED. 285, IT WAS SAID THAT "THE PERIL WHICH FORMS A GOOD EXCEPTION IN A BILL OF LADING MEANS SOMETHING SO CATASTROPHIC AS TO TRIUMPH OVER THOSE SAFEGUARDS BY WHICH SKILLFUL AND VIGILANT SEAMEN USUALLY BRING SHIP AND CARGO TO PORT IN SAFETY.'

THE RECORD IN THE INSTANT MATTER DOES NOT ESTABLISH SUCH A CONDITION TO HAVE EXISTED. ACCORDINGLY, THE SETTLEMENT IS SUSTAINED.