B-104788, SEP. 19, 1957

B-104788: Sep 19, 1957

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INC.: A BRIEF AND RELATED DOCUMENTARY DATA WERE RECEIVED IN OUR OFFICE ON APRIL 29. THE DISALLOWANCE WAS SUSTAINED UPON REVIEW BY OUR DECISION. SINCE THE FINDING OF SUCH FAILURE TO EXERCISE DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY WAS BASED UPON AN ADMINISTRATIVE REPORT BY THE DEPARTMENT OF THE ARMY. WAS FORWARDED TO THE DEPARTMENT OF THE ARMY FOR ITS COMMENTS AND THE COMMENTS OF THE MILITARY SEA TRANSPORTATION SERVICE ON THE CONTENTIONS IN THE BRIEF THAT THERE WAS NO FAILURE ON THE PART OF THE SHIPOWNER TO EXERCISE THE REQUIRED DILIGENCE TO PROVIDE A SEAWORTHY VESSEL. OUR OFFICE IS NOW IN RECEIPT OF REPORTS FROM THE DEPARTMENT OF THE ARMY AND THE MSTS INDICATING THAT THE SHIPOWNER DID IN FACT EXERCISE DUE DILIGENCE TO PROVIDE A SEAWORTHY VESSEL.

B-104788, SEP. 19, 1957

TO LYKES BROS. STEAMSHIP CO., INC.:

A BRIEF AND RELATED DOCUMENTARY DATA WERE RECEIVED IN OUR OFFICE ON APRIL 29, 1957, FROM MR. MILTON C. GRACE, ATTORNEY FOR LYKES BROS. STEAMSHIP CO., INC., REQUESTING RECONSIDERATION OF A CLAIM FILED BY C. A. SPORL AND CO., INC., AVERAGE ADJUSTERS IN THE AMOUNT OF $28,479.37, REPRESENTING THE PROPORTION OF GENERAL AVERAGE ON ARMY CARGO ABOARD THE S.S. BENJAMIN HUNTINGTON, WHEN SHE STRANDED ON JULY 5, 1947, EN ROUTE FROM LAKE CHARLES, LOUISIANA TO BREMERHAVEN, GERMANY.

THE CLAIM PREVIOUSLY HAD BEEN DISALLOWED BY SETTLEMENT DATED SEPTEMBER 17, 1951, OF OUR CLAIMS DIVISION, FOR THE REASON THAT THE RECORD FAILED TO DISCLOSE THE SHIPOWNER HAD EXERCISED THE REQUIRED DILIGENCE TO MAKE THE VESSEL SEAWORTHY AT THE COMMENCEMENT OF THE VOYAGE. THE DISALLOWANCE WAS SUSTAINED UPON REVIEW BY OUR DECISION, B 104788 DATED JUNE 19, 1953.

SINCE THE FINDING OF SUCH FAILURE TO EXERCISE DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY WAS BASED UPON AN ADMINISTRATIVE REPORT BY THE DEPARTMENT OF THE ARMY, THE BRIEF, TOGETHER WITH RELATED MATERIAL, WAS FORWARDED TO THE DEPARTMENT OF THE ARMY FOR ITS COMMENTS AND THE COMMENTS OF THE MILITARY SEA TRANSPORTATION SERVICE ON THE CONTENTIONS IN THE BRIEF THAT THERE WAS NO FAILURE ON THE PART OF THE SHIPOWNER TO EXERCISE THE REQUIRED DILIGENCE TO PROVIDE A SEAWORTHY VESSEL.

OUR OFFICE IS NOW IN RECEIPT OF REPORTS FROM THE DEPARTMENT OF THE ARMY AND THE MSTS INDICATING THAT THE SHIPOWNER DID IN FACT EXERCISE DUE DILIGENCE TO PROVIDE A SEAWORTHY VESSEL. ACCORDINGLY, YOU ARE ADVISED THAT WE HAVE TODAY INSTRUCTED OUR CLAIMS DIVISION TO RE EXAMINE THE CLAIM AND, UPON COMPLETION OF WHATEVER DEVELOPMENT MAY BE NECESSARY, TO ALLOW THE SAME, IF OTHERWISE PROPER, IN THE AMOUNT IT FINDS DUE.