B-117677 December 21, 1953

B-117677: Dec 21, 1953

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Was forwarded to this Office for consideration as a meritorious claim properly for reporting to the Congress under the act of April 10. Mormacsum was chartered by the Military Sea Transportation. 12 military personnel were carried in an escort capacity. Such personnel were assigned stateroom as passengers on the vessel and occupied the same during the voyage. Oil and dirt became collected on their shoes and thus was deposited on the stateroom carpeting causing indelible stains to the extent that the carpeting had to be entirely replaced. The courts have consistently held that there is no liability for damage to a chaartered vessel without proof of negligence. States that: "The evidence of record does not establish that there was any negligent act or omission on the part of military personnel aboard the ship which caused the alleged damage.

B-117677 December 21, 1953

The Honorable The Secretary of the Army

My dear Mr. Secretary:

By first indorsement dated October 8, 1953, from the Office, Chief of Finance, reference FINEY 167/76290, the claim of Moore-McCormack Lines, Inc., was forwarded to this Office for consideration as a meritorious claim properly for reporting to the Congress under the act of April 10, 1928, 31 U.S.C. 236. The claim, in the amount of $1,000, represents damage to the floor carpeting of staterooms of the S.S. Mormacsum while en route from Olympia, Washington, to Pusan, Korea, between July 19 and August 6, 1950.

By time charter party No. MST-133, dated July 13, 1950, the S.S. Mormacsum was chartered by the Military Sea Transportation, Department of the Navy, for the shipment of military organizational equipment to Korea. In order that the equipment might be maintained and guarded during the voyage, 12 military personnel were carried in an escort capacity. Such personnel were assigned stateroom as passengers on the vessel and occupied the same during the voyage. The record indicates that, because of the nature of their shipboard duties, grease, oil and dirt became collected on their shoes and thus was deposited on the stateroom carpeting causing indelible stains to the extent that the carpeting had to be entirely replaced.

The charter party contains no covenant for the return of the vessel in good order and condition, reasonable wear and tear excepted, other than that contained in article 8(d) which required the charterer to repair damages to the vessel caused by negligence of its employees in loading and discharging the vessel. In the absence of such a covenant, the courts have consistently held that there is no liability for damage to a chaartered vessel without proof of negligence. See The Mononghala, 282 F. 17; C. F. Harses Company v. Upper Hudson Stone Company, 234 F. 859; Schoolmaker Conners Company v. Lambert Transportation Company, 268 F. 102; Lake Michigan Car Ferry Transportation Company v. Crosby, 107 F. 723, 150 A.L.R. 272; also, see Shaw v. United States, 93 U.S. 235; Clark v. United States, 95 U.S. 539; The Gibralter, 52 F. 2d 787; The Roalyn, 93 F. 2d 278. In that connection, 4th indorsement of May 21, 1952, from BOJAG, Department of the Army, Fort Holabird, Baltimore, Maryland, to the Commander, MSTS, Department of the Navy, states that:

"The evidence of record does not establish that there was any negligent act or omission on the part of military personnel aboard the ship which caused the alleged damage. Accordingly, payment as a tort claim is precluded."

Thus, as the matter now stands, the claim may not be paid under the charter party; likewise, it does not appear to come within the purview of the Federal Tort Claims Act, 28 U.S.C. 2672, et seq.

However, the act of July 3, 1943, as amended, 31 U.S.C. 223b, authorizes the Secretary of the Army to settle certain personal property damage claims, including damage to personal property bailed to the Government caused by military personnel incident to noncombat activities, in amounts not to exceed $1,000. Notwithstanding the apparent applicability of that statutory authority to the facts of the instant claim, it was referred here for consideration under the act of April 10, 1928. However, the authority conferred by the 1928 act necessarily would exclude claims which are for administrative consideration under a special statute such as the act of July 3, 1943, as amended, 31 U.S.C. 223b.

Accordingly, the claims file is returned herewith for consideration by your Department. Moore-McCormack Lines is being advised of this action.

Sincerely yours,

Lindsay C. Warren Comptroller General of the United States

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