B-135144, AUG. 1, 1958

B-135144: Aug 1, 1958

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GENERAL SERVICES ADMINISTRATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5. DID NOT SPECIFY THE ACTUAL ROUTE OR ROUTES TO BE FOLLOWED OR PROVIDE ANY BASIS FOR ADDITIONAL COMPENSATION IF ALTERNATE LONGER ROUTES ACTUALLY WERE USED. IT IS NOTED THAT THE CUSTOMARY AND USUAL ROUTE BETWEEN THE PORTS HERE INVOLVED IS BY WAY OF THE SUEZ CANAL. ADELFETIS HAVE FILED CLAIMS FOR ADDITIONAL FREIGHT BECAUSE OF LONGER VOYAGES TO DESTINATION BY WAY OF THE CAPE OF GOOD HOPE RATHER THAN BY WAY OF THE SUEZ CANAL. WE HAVE CAREFULLY CONSIDERED THESE CLAIMS IN THE LIGHT OF ALL THE INFORMATION AND DATA BEFORE OUR OFFICE AND WE HAVE CONCLUDED THAT NO AUTHORITY OF LAW EXISTS FOR PAYMENT OF SUCH CLAIMS ON THE PRESENT RECORD.

B-135144, AUG. 1, 1958

TO HONORABLE FRANKLIN FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5, 1958, WITH ENCLOSURES, TRANSMITTING FOR OUR CONSIDERATION CLAIMS FOR ADDITIONAL OCEAN FREIGHT DUE TO THE CLOSING OF THE SUEZ CANAL IN OCTOBER-NOVEMBER 1956 AND THE RESULTING NECESSITY FOR VESSELS UNDER VOYAGE CHARTER WITH YOUR ADMINISTRATION TO PROCEED TO THEIR DESTINATIONS BY WAY OF THE CAPE OF GOOD HOPE.

THE CHARTER PARTIES INVOLVED COVERED THE SHIPMENT OF FERTILIZERS FROM EUROPEAN PORTS TO PORTS IN INDIA AND CAMBODIA AT FIXED RATES OF FREIGHT PER TON, BUT DID NOT SPECIFY THE ACTUAL ROUTE OR ROUTES TO BE FOLLOWED OR PROVIDE ANY BASIS FOR ADDITIONAL COMPENSATION IF ALTERNATE LONGER ROUTES ACTUALLY WERE USED. IT IS NOTED THAT THE CUSTOMARY AND USUAL ROUTE BETWEEN THE PORTS HERE INVOLVED IS BY WAY OF THE SUEZ CANAL. THE OWNERS OF THE CHARTERED VESSELS, THE S.S. ZANCLE, S.S. RINGHORN, THE S.S. NICA, AND PRESUMABLY THE S.S. ADELFETIS HAVE FILED CLAIMS FOR ADDITIONAL FREIGHT BECAUSE OF LONGER VOYAGES TO DESTINATION BY WAY OF THE CAPE OF GOOD HOPE RATHER THAN BY WAY OF THE SUEZ CANAL.

WE HAVE CAREFULLY CONSIDERED THESE CLAIMS IN THE LIGHT OF ALL THE INFORMATION AND DATA BEFORE OUR OFFICE AND WE HAVE CONCLUDED THAT NO AUTHORITY OF LAW EXISTS FOR PAYMENT OF SUCH CLAIMS ON THE PRESENT RECORD.

IT IS NOTED THAT THE CHARTER PARTY IN THE CASE OF THE S.S. RINGHORNAND S.S. STATIUS JENSEN PROVIDED THAT IF THE SUEZ CANAL WAS IMPASSABLE BEFORE LOADING COMMENCED THE OWNERS MIGHT CANCEL THE CHARTER PARTY, AND THAT BY FIRST ADDENDUM AN ADDITIONAL AMOUNT OF FREIGHT WAS ALLOWED THE STATIUS JENSEN IF A VOYAGE VIA THE CAPE OF GOOD HOPE BECAME NECESSARY. NO SUCH PROVISION AND/OR ADDENDUM WAS INCLUDED IN THE CHARTER PARTIES COVERING THE OTHER VESSELS. THE CHARTER PARTIES HERE INVOLVED AS PERFORMED AND EXECUTED BY THE VESSELS CLAIMING ADDITIONAL COMPENSATION BY REASON OF THE LONGER VOYAGES, LIKE ANY OTHER CONTRACTS, NECESSARILY MUST AFFORD THE LEGAL BASIS UPON WHICH SUCH CLAIMS CAN BE PAID BY THE GOVERNMENT. PROVISION WAS MADE IN THE CHARTER PARTIES FOR FREIGHT ESCALATION OR ADJUSTMENT IN THE EVENT THE USUAL, CUSTOMARY ROUTES TO DESTINATION COULD NOT BE FOLLOWED. AT THE MOST, EQUITABLE CONSIDERATIONS APPEAR TO SUPPORT THESE CLAIMS. HOWEVER, SUCH CONSIDERATIONS, IN VIEW OF THE EXISTENCE OF VALID, SUBSISTING AGREEMENTS, CONSTITUTE NO BASIS FOR SETTLEMENT IN EXCESS OF THE AGREED RATES OF FREIGHT.

TO AUTHORIZE THE PAYMENT OF THESE CLAIMS ON ANY BASES OTHER THAN UNDER THE CHARTER PARTIES WOULD BE CONTRARY TO THE FUNDAMENTAL RULE THAT CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN AND THAT THE FACT THAT SUPERVENING OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO ENTITLE A CONTRACTOR TO ADDITIONAL COMPENSATION.

ACCORDINGLY, AND SINCE NO RATES OF FREIGHT IN EXCESS OF THOSE PROVIDED FOR IN THE CHARTER PARTIES MAY BE PAID, THE SUBJECT CLAIMS ARE NOT TO BE REGARDED AS LEGAL OBLIGATIONS OF THE GOVERNMENT.

THE FILES TRANSMITTED WITH YOUR LETTER OF FEBRUARY 5, 1958, ARE RETURNED HEREWITH.