B-124948, SEP. 17, 1959

B-124948: Sep 17, 1959

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF JULY 23. THE INDEBTEDNESS WAS RECOVERED BY DEDUCTION IN MAKING PAYMENT FOR OTHER AMOUNTS DUE THE EAST ASIATIC COMPANY. THE ACTION TAKEN WAS STRICTLY IN ACCORDANCE WITH THE HOLDING IN THE ISTHMIAN STEAMSHIP CASE AND NOT FROM ANY FEELING THAT THE UNITED STATES DID NOT HAVE A JUST AND VALID CLAIM AGAINST THE EAST ASIATIC COMPANY. THE RECORD HERE SHOWN THE AMMONIUM PHOSPHATE INVOLVED WAS SHIPPED ON BILL OF LADING NO. 75 DATED APRIL 22. WERE TORN AND THE CONTENTS EXCEPT FOR 553.3 KILOGRAMS WERE LOST. IS THE BARE INVOICE COST OF THE LOST MATERIAL. IT IS REPORTED THAT NOTIFICATION OF INTENT TO CLAIM WAS FORWARDED TO THE EAST ASIATIC COMPANY.

B-124948, SEP. 17, 1959

TO MESSRS. KNIGHT, GARDNER, POOR AND STEVENS, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1959, RELATIVE TO THE INDEBTEDNESS OF THE EAST ASIATIC COMPANY, LTD., TO THE UNITED STATES IN THE AMOUNT OF $1,096.19 WHICH AROSE FROM THE LOSS AND DAMAGE TO A SHIPMENT OF AMMONIUM PHOSPHATE, ON A COMMERCIAL BILL OF LADING, FROM ROTTERDAM, HOLLAND, TO BANGKOK, THAILAND, IN APRIL 1952.

THE INDEBTEDNESS WAS RECOVERED BY DEDUCTION IN MAKING PAYMENT FOR OTHER AMOUNTS DUE THE EAST ASIATIC COMPANY, LTD. HOWEVER, UPON RECEIPT OF YOUR LETTER OF FEBRUARY 20, 1959, PROTESTING SUCH ACTION AND PURSUANT TO THE RECENT DECISION OF THE SUPREME COURT IN UNITED STATES V. ISTHMIAN STEAMSHIP CO., 359 U.S. 314, OUR TRANSPORTATION DIVISION ADVISED YOU THAT ARRANGEMENTS WOULD BE MADE TO REFUND TO THE EAST ASIATIC COMPANY THE AMOUNT PREVIOUSLY DEDUCTED.

THE ACTION TAKEN WAS STRICTLY IN ACCORDANCE WITH THE HOLDING IN THE ISTHMIAN STEAMSHIP CASE AND NOT FROM ANY FEELING THAT THE UNITED STATES DID NOT HAVE A JUST AND VALID CLAIM AGAINST THE EAST ASIATIC COMPANY, INC.

THE RECORD HERE SHOWN THE AMMONIUM PHOSPHATE INVOLVED WAS SHIPPED ON BILL OF LADING NO. 75 DATED APRIL 22, 1952, ABOARD THE SS KOREA CONSIGNED TO THE SPECIAL TECHNICAL AND ECONOMIC MISSION, C/O AMERICAN EMBASSY, BANGKOK, THAILAND. ACCORDING TO SURVEY NOTE ISSUED BY THE PORT AUTHORITY OF THAILAND ON SEPTEMBER 15, 1952, ONE HUNDRED SEVENTY TWO BAGS UPON ARRIVAL IN BANGKOK ON 5.6.52, WERE TORN AND THE CONTENTS EXCEPT FOR 553.3 KILOGRAMS WERE LOST. THE AMOUNT CLAIMED, $1,096.19, IS THE BARE INVOICE COST OF THE LOST MATERIAL. IT IS REPORTED THAT NOTIFICATION OF INTENT TO CLAIM WAS FORWARDED TO THE EAST ASIATIC COMPANY, LTD., BY LETTER OF MAY 22, 1953, AND THAT SUCH COMPANY, BY LETTER OF JUNE 3, 1953, DISCLAIMED LIABILITY ON THE GROUND THAT SINGLE JUTE BAGS ARE INSUFFICIENTLY PROTECTIVE FOR OVERSEAS SHIPMENT. ALSO, THAT COMPANY IN RESPONSE TO DEMAND OF THE GENERAL SERVICES ADMINISTRATION, AGAIN, BY LETTER OF APRIL 28, 1954, DISCLAIMED LIABILITY ASSERTING THAT CLAUSE 19 OF THE BILL OF LADING RELEASED THE COMPANY FROM LIABILITY FOR GOODS SHIPPED IN PAPER BAGS. IT THUS APPEARS, IF NOTICE TO THE COMPANY OF SUCH BADLY TORN BAGS AND LOSS OF CONTENTS WAS NOT IMMEDIATELY APPARENT ON UNLOADING, IT WAS GIVEN IN MAY 1953 WITHIN APPROXIMATELY EIGHT MONTHS OF THE ISSUANCE OF THE SURVEY NOTE WHICH DETERMINED THE QUANTITY OF THE SHIPMENT LOST. ALSO, SINCE THE COMPANY TWICE REJECTED THE CLAIMS IN JUNE 1953 AND APRIL 1954, IT WOULD APPEAR IT SHOULD HAVE A FILE IN THE MATTER. UNDER SUCH CIRCUMSTANCES, WE CANNOT AGREE WITH YOUR STATEMENT "THAT THE MATTER WAS SO OLD WHEN CLAIM WAS FIRST MADE THAT THE EAST ASIATIC COMPANY LTD'S BANGKOK OFFICE COULD RECALL NONE OF THE DETAILS AND HAS NO FILES PERTAINING TO THE SHIPMENT.' ALSO, OUR FILES SHOW THAT THE "SINGLE JUTE BAGS" AND "PAPER BAGS" REFERRED TO IN THE COMPANY'S DISCLAIMER OF RESPONSIBILITY IN REALITY WERE 6-PLY EXPORT PAPER BAGS, TWO OF WHICH WERE BITUMINOUS. WE THEREFORE ARE OF THE OPINION THAT OUR CLAIM WAS AND IS A VALID ONE EVEN THOUGH WE MAY, UNDER THE REASONING OF THE COURT OF APPEALS FOR THE SECOND CIRCUIT IN THE SOUTH STAR CASE, 210 F.2D 44, NOW BE PRECLUDED FROM RECOVERING THEREON BY SUIT. WE, THEREFORE, ARE NOT INTERESTED IN THE SETTLEMENT OF THIS CLAIM ON THE BASIS OF SOME TOKEN "EX GRATIA" PAYMENT.

HOWEVER, IF YOUR CLIENT WISHES TO DISPOSE OF THIS CLAIM AND YOU ARE IN POSITION TO MAKE A FAIR OR REASONABLE OFFER IN COMPROMISE, SUCH COMPROMISE WILL BE GIVEN CONSIDERATION. IF DEEMED REASONABLE, SUCH OFFER WILL BE FORWARDED TO THE ATTORNEY GENERAL, WITH OUR RECOMMENDATION FOR ACCEPTANCE. OTHERWISE, THE INDEBTEDNESS MUST OF NECESSITY REMAIN OPEN IN OUR OFFICE, PENDING COLLECTION BY SUCH OTHER MEANS AS MAY BE OPEN TO US.