B-127643, MAY 17, 1956

B-127643: May 17, 1956

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THIS CLAIM IS ONE OF THE TWO GENERAL AVERAGE CLAIMS WHICH YOU STATE IN YOUR LETTER OF MAY 3. YOU HAVE BEEN ADVISED WERE FORWARDED TO OUR OFFICE BY THE MILITARY SEA TRANSPORTATION SERVICE. THERE IS NO RECORD OF RECEIPT HERE OF THE CLAIM FOR GENERAL AVERAGE CONTRIBUTION IN CONNECTION WITH THE SS JEAN LAFITTE. WE HAVE BEEN ADVISED ALSO THAT A SUIT HAS BEEN FILED ON THE IDENTICAL CLAIM IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (TRANSFUEL CORPORATION OF DELAWARE V. THE BREAKDOWN OF THE REFRIGERATOR USED TO STORE PERISHABLE FOOD FOR THE CREW WHERE THE MASTER'S STATEMENT INDICATES THERE WERE SUFFICIENT DRY FOODSTUFFS TO SUSTAIN THE CREW FOR THE NORMAL TRIP TO THE PORT OF DESTINATION APPEARS NOT TO PRESENT A MATTER OF SUCH IMMINENT DANGER TO THE SHIP AND CARGO OR THE SUCCESS OF THE VOYAGE AS WOULD JUSTIFY THE ASSESSMENT OF GENERAL AVERAGE.

B-127643, MAY 17, 1956

TO DESPARD AND COMPANY, INC.:

THERE HAS BEEN RECEIVED IN THIS OFFICE FROM THE MILITARY SEA TRANSPORTATION SERVICE, DEPARTMENT OF THE NAVY, YOUR CLAIM IN THE AMOUNT OF $2,417.18, ALLEGEDLY DUE AS GENERAL AVERAGE ON UNITED STATES CARGO ABOARD THE SS WILLIAM H. CARRUTH, WHICH VESSEL SUFFERED A REFRIGERATOR BREAKDOWN EN ROUTE FROM NEW ORLEANS, LOUISIANA, TO HAWAIIAN ISLAND PORTS. THIS CLAIM IS ONE OF THE TWO GENERAL AVERAGE CLAIMS WHICH YOU STATE IN YOUR LETTER OF MAY 3, 1956, YOU HAVE BEEN ADVISED WERE FORWARDED TO OUR OFFICE BY THE MILITARY SEA TRANSPORTATION SERVICE. THERE IS NO RECORD OF RECEIPT HERE OF THE CLAIM FOR GENERAL AVERAGE CONTRIBUTION IN CONNECTION WITH THE SS JEAN LAFITTE.

IN REFERRING THE WILLIAM H. CARRUTH CLAIM TO US, THE MILITARY SEA TRANSPORTATION SERVICE RECOMMENDED THAT THE CLAIM BE DENIED IN ITS ENTIRETY ON THE BASIS THAT THE ACCIDENT--- BREAKDOWN OF THE REFRIGERATOR-- - DID NOT CONSTITUTE A GENERAL AVERAGE ACCIDENT WITHIN THE MEANING OF THE YORK-ANTWERP RULES OF 1950. WE HAVE BEEN ADVISED ALSO THAT A SUIT HAS BEEN FILED ON THE IDENTICAL CLAIM IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (TRANSFUEL CORPORATION OF DELAWARE V. UNITED STATES, ADMIRALTY NO. 182-363).

THE DECISIONS OF THE COURTS APPEAR UNIFORMLY TO CONDITION THE RIGHT TO GENERAL AVERAGE UPON THE ESTABLISHMENT OF THREE ELEMENTS, NAMELY, (A) A COMMON IMMINENT PERIL, (B) A VOLUNTARY SACRIFICE, AND (C) A SUCCESSFUL TERMINATION. THE BREAKDOWN OF THE REFRIGERATOR USED TO STORE PERISHABLE FOOD FOR THE CREW WHERE THE MASTER'S STATEMENT INDICATES THERE WERE SUFFICIENT DRY FOODSTUFFS TO SUSTAIN THE CREW FOR THE NORMAL TRIP TO THE PORT OF DESTINATION APPEARS NOT TO PRESENT A MATTER OF SUCH IMMINENT DANGER TO THE SHIP AND CARGO OR THE SUCCESS OF THE VOYAGE AS WOULD JUSTIFY THE ASSESSMENT OF GENERAL AVERAGE. AT LEAST THE MATTER IS CONSIDERED SO DOUBTFUL AS WOULD WARRANT US, AS THE ACCOUNTING OFFICERS OF THE GOVERNMENT, IN REJECTING THE CLAIM LETTING THE MATTER FOR ADJUDICATION BY A PROPER COURT PROCEEDING. SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288; CHARLES V. UNITED STATES, 19 C.CLS. 316, 319; 33 COMP. GEN. 394. FURTHERMORE, IT IS GENERALLY NOT PROPER FOR THE ACCOUNTING OFFICERS TO SETTLE A CLAIM AGAINST THE GOVERNMENT WHERE THE CLAIMANT IS PROSECUTING THE SAME CLAIM IN THE COURTS. 33 COMP. GEN. 479, 481.

UNDER THE CIRCUMSTANCES, NO FURTHER ACTION WILL BE TAKEN BY THE GENERAL ACCOUNTING OFFICE ON THE CLAIM, BUT RATHER THE MATTER WILL BE LEFT FOR SETTLEMENT BY THE COURT PROCEEDING.