B-141384, JUN. 28, 1960

B-141384, JUN. 28, 1960

TO THE PACIFIC FAR EAST LINE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1960, IN WHICH YOU REQUEST A REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR $170.70 ON SUPPLEMENTAL BILL NO. 03210.

THE RECORD SHOWS THAT GOVERNMENT BILL OF LADING C 113861 DATED DECEMBER 27, 1957, WAS ISSUED AT AZUSA, CALIFORNIA, TO COVER A CONSIGNMENT OF 32 PIECES OF PIPE FROM THE SOUTHERN PIPE AND CASING COMPANY TO THE CIVIL AERONAUTICS ADMINISTRATION, WAKE ISLAND. THE BILL OF LADING WAS ACCEPTED BY THE PACIFIC FAR EAST LINE, INC., ON JANUARY 30, 1958, AND ON THIS DATE AT LONG BEACH, CALIFORNIA, A "MEMO BILL OF LADING ONLY," NO. 1-757, WAS ISSUED TO SHOW THAT THE PIPE WAS LADEN ABOARD THE ,S.S. WILLIAM LUCKENBACK," VOY 47W, FOR SHIPMENT TO THE CONSIGNEE AT WAKE ISLAND.

THE RECORD ALSO INDICATES THAT DURING THE UNLOADING OF THE PIPE FROM THE S.S. WILLIAM LUCKENBACK AT WAKE ISLAND INTO A LIGHTER (GOVERNMENT OWNED LGM) ALONGSIDE, ONE PIECE OF PIPE LANDED ON THE GUNWALE OF THE LIGHTER AND FELL INTO THE SEA. THE LOSS AND VALUE OF THE ONE LENGTH OF PIPE (16 INCH IN DIAMETER AND 18 FEET IN LENGTH) WAS NOTED ON THE BACK OF GOVERNMENT BILL OF LADING C-113861 AND WHEN THE CARRIER'S BILL NO. 03210 WAS PRESENTED FOR PAYMENT ON PUBLIC VOUCHER FORM, SF 1113, A DEDUCTION OF $170.70 WAS MADE BY THE ADMINISTRATIVE OFFICE TO COMPENSATE THE GOVERNMENT FOR THE VALUE OF THE LOST PIPE, PLUS THE UNEARNED FREIGHT CHARGES.

YOU CONTEND THAT THE TERMS OF AFFREIGHTMENT AND THE CONDITIONS IN DISCHARGING THE CARGO AT WAKE ISLAND WERE NOT CONSIDERED IN THE DISALLOWANCE OF YOUR CLAIM FOR $170.70. IN SUPPORT OF YOUR CONTENTION, YOU REFER TO PACIFIC FAR EAST LINE, INC., GUAM FREIGHT TARIFF NO. 1, WITH SPECIFIC REFERENCE TO THE SEVENTH REVISED PAGE 10, ITEM 5 (F), EFFECTIVE AUGUST 27, 1956, WHICH PROVIDES: ,RATES TO AND FROM MIDWAY AND WAKE ISLAND APPLY TO AND FROM "ON BOARD" AT ANCHORAGE, AND DO NOT INCLUDE THE COST OF HANDLING BETWEEN SHIP'S HOLD AND LIGHTER ALONGSIDE NOR THE COST OF LIGHTERAGE BETWEEN ALONGSIDE THE VESSEL AND THE DOCK. ALL SHIPMENTS AT MIDWAY AND WAKE ISLAND WILL BE ASSESSED A CHARGE OF $3.50 PER TON AS FREIGHTED FOR RECEIVING AND/OR DELIVERING OF CARGO BETWEEN SHIP'S HOLD AND LIGHTER ALONGSIDE.'

WE HAVE GIVEN CAREFUL CONSIDERATION TO YOUR CONTENTION. IT APPEARS THAT THE S.S. WILLIAM LUCKENBACK WAS TO HAVE CUSTODY AND CONTROL OF THE SHIPMENT OF PIPE UNTIL ITS DELIVERY INTO THE LIGHTER. THIS SEEMS CLEAR SINCE THE RECORD SHOWS THAT THE CARRIER IN BILLING ASSESSED SPECIAL HANDLING CHARGES OF $61.60 FOR THE SERVICE OF DELIVERING THE CARGO BETWEEN SHIP'S HOLD AND THE LIGHTER ALONGSIDE. THIS CHARGE AS SHOWN BY INVOICE NO. 03210, DATED MARCH 24, 1958, AND BILL OF LADING NO. 1-757, DATED JANUARY 30, 1958, WAS MADE ON THE BASIS OF THE APPLICABLE RATE OF $3.50 PER TON (OR FOR EACH 40 CUBIC FEET OF VOLUME) IN ACCORDANCE WITH ITEM 5 (F) OF THE PACIFIC FAR EAST LINE, INC., GUAM FREIGHT TARIFF NO. 1, WHICH PROVIDES IN PERTINENT PART: "* * *. ALL SHIPMENTS AT MIDWAY AND WAKE ISLAND WILL BE ASSESSED A CHARGE OF $3.50 PER TON AS FREIGHTED FOR RECEIVING AND/OR DELIVERING OF CARGO BETWEEN SHIP'S HOLD AND LIGHTER ALONGSIDE.' FURTHERMORE, THE PROVISIONS OF THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1300 ARE APPLICABLE HERE AND GOVERN THE RIGHTS AND OBLIGATIONS OF THE PARTIES BECAUSE OF CLAUSE 1 OF THE CARRIER'S COMMERCIAL BILL OF LADING INCORPORATED INTO THE CONTRACT OF CARRIAGE BY REFERENCE BY THE GOVERNMENT BILL OF LADING AND WHICH PROVIDES, IN SUBSTANCE, THAT THE BILL OF LADING IS SUBJECT TO THE PROVISIONS OF THE CARRIAGE OF GOODS BY SEA ACT OF 1936. THEREFORE, ON THE BASIS OF THE RECORD AND UNDER THE PROVISIONS OF SECTION 3 (2) OF THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1303 (2), IT APPEARS THAT THE CARRIER WAS NEGLIGENT IN THAT THE VESSEL FAILED TO "PROPERLY AND CAREFULLY LOAD, HANDLE, STOW, CARRY, KEEP, CARE FOR, AND DISCHARGE THE GOODS CARRIED," AS IT WAS REQUIRED TO DO UNDER THE ACT.

AS FOR THE CONTENTION AS TO THE CONDITIONS UNDER WHICH THE GOODS WERE DISCHARGED FROM THE VESSEL, THE RECORD DOES NOT SHOW THAT THE PERILS OF THE SEA OR OTHER CONDITIONS WERE SUCH AS TO RELIEVE THE CARRIER FROM LIABILITY UNDER SECTION 4 (2) (C) OF THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1304 (2) (C), AND IT SEEMS THAT THE LOSS OF THE PIPE COULD HAVE BEEN AVOIDED BY THE USE OF PRUDENCE, SKILL AND DILIGENCE.

ACCORDINGLY, THE PRESENT RECORD WARRANTS NO CHANGE IN OUR SETTLEMENT OF JANUARY 29, 1960, AND THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL NO. 03210 FOR $170.70 IS SUSTAINED.