B-141816, APRIL 22, 1960, 39 COMP. GEN. 721

B-141816: Apr 22, 1960

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836.38 IS PRESENTED UNDER THE PROVISIONS OF GOVERNMENT BILLS OF LADING COVERING GOVERNMENT-OWNED CARGO ABOARD THE SS. THAT THE GOVERNMENT'S CONTRIBUTORY SHARE IN THE GENERAL AVERAGE AS CLAIMED IS PROPERLY PAYABLE. AN EXAMINATION OF THE FILE PERTAINING TO THE CLAIM DISCLOSES NO DOUBTFUL QUESTION OF LAW OR FACT AND THE CLAIM IS PROPERLY FOR PAYMENT. THE LETTER FROM THE MILITARY SEA TRANSPORTATION SERVICE INDICATES THAT THE CLAIM WAS TRANSMITTED TO OUR OFFICE IN COMPLIANCE WITH OUR DECISION OF JUNE 15. ALL GENERAL AVERAGE CLAIMS WERE REQUIRED TO BE FORWARDED TO OUR OFFICE FOR SETTLEMENT PURSUANT TO OUR DECISION OF MARCH 18. OR WHERE THE QUESTION OF LAW INVOLVED IS NOT CONCLUSIVELY SETTLED BY THE COURTS.

B-141816, APRIL 22, 1960, 39 COMP. GEN. 721

GENERAL AVERAGE CLAIMS - CLAIM SETTLEMENT JURISDICTION - ADMINISTRATIVE IN LIEU OF GENERAL ACCOUNTING OFFICE SETTLEMENT GENERAL AVERAGE CLAIMS ARISING INCIDENT TO SHIPMENTS UNDER GOVERNMENT OR COMMERCIAL BILLS OF LADING MAY BE SETTLED ADMINISTRATIVELY WITHOUT REFERRAL TO THE GENERAL ACCOUNTING OFFICE; HOWEVER, IF ANY SUCH CLAIMS INVOLVE DOUBTFUL QUESTIONS OF LAW OR FACT THEY SHOULD BE SENT TO THE GENERAL ACCOUNTING OFFICE. B-55025, MARCH 18, 1946, MODIFIED.

TO THE SECRETARY OF THE NAVY, APRIL 22, 1960:

BY LETTER OF JANUARY 25, 1960, REFERENCE GA-413 SER 47M7, A COPY ATTACHED, THE COUNSEL OF THE MILITARY SEA TRANSPORTATION SERVICE TRANSMITTED TO OUR OFFICE THE STATEMENT OF GENERAL AND PARTICULAR AVERAGE AND SPECIAL CHARGES ON CARGO PREPARED BY JOHNSON AND HIGGINS, GENERAL AVERAGE ADJUSTERS, ON BEHALF OF THE LUCKENBACH STEAMSHIP CO., OWNER OF THE SS. MARINE LEOPARD. CLAIM IN THE AMOUNT OF $2,836.38 IS PRESENTED UNDER THE PROVISIONS OF GOVERNMENT BILLS OF LADING COVERING GOVERNMENT-OWNED CARGO ABOARD THE SS. MARINE LEOPARD AS THE GOVERNMENT'S CONTRIBUTION TO EXPENDITURES OF A GENERAL AVERAGE NATURE RESULTING FROM THE COLLISION OF THAT SHIP AND THE SS. HOWARD OLSON ON MAY 14, 1956, AT POINT SUR, CALIFORNIA. THE MILITARY SEA TRANSPORTATION SERVICE STATES THAT IN ITS OPINION A GENERAL AVERAGE INCIDENT DID OCCUR; THAT THE ITEMS OF EXPENSE APPEAR REASONABLE AND PROPER GENERAL AVERAGE DISBURSEMENTS; THAT NO DEFENSE EXISTS TO THE GENERAL AVERAGE CLAIM; AND THAT THE GOVERNMENT'S CONTRIBUTORY SHARE IN THE GENERAL AVERAGE AS CLAIMED IS PROPERLY PAYABLE. AN EXAMINATION OF THE FILE PERTAINING TO THE CLAIM DISCLOSES NO DOUBTFUL QUESTION OF LAW OR FACT AND THE CLAIM IS PROPERLY FOR PAYMENT.

THE LETTER FROM THE MILITARY SEA TRANSPORTATION SERVICE INDICATES THAT THE CLAIM WAS TRANSMITTED TO OUR OFFICE IN COMPLIANCE WITH OUR DECISION OF JUNE 15, 1955, B-121169, 34 COMP. GEN. 676. PRIOR TO OUR DECISION OF JUNE 15, 1955, ALL GENERAL AVERAGE CLAIMS WERE REQUIRED TO BE FORWARDED TO OUR OFFICE FOR SETTLEMENT PURSUANT TO OUR DECISION OF MARCH 18, 1946, B- 55025. OUR DECISION OF JUNE 15, 1955, MODIFIED DECISION OF MARCH 18, 1946, TO THE EXTENT OF AUTHORIZING ADMINISTRATIVE SETTLEMENT OF CERTAIN GENERAL AVERAGE CLAIMS ARISING UNDER CHARTER AGREEMENTS CONTAINING THE SO- CALLED DISPUTES CLAUSE. IN OUR DECISION OF JUNE 15, 1955, WE STATED AS FOLLOWS:

ACCORDINGLY, THESE CLAIMS (CLAIMS ARISING UNDER CHARTER AGREEMENTS CONTAINING THE SO-CALLED DISPUTES CLAUSE) NEED NO LONGER BE TRANSMITTED HERE FOR SETTLEMENT BUT SHOULD BE SETTLED ADMINISTRATIVELY WITH DUE REGARD TO THE CONTRACTOR'S RIGHTS UNDER THE SO-CALLED DISPUTES CLAUSE CONCERNING ALL QUESTIONS OF FACT. WHERE, HOWEVER, THE SETTLEMENT REQUIRES THE RESOLUTION OF LEGAL QUESTIONS NOT HERETOFORE DECIDED BY OUR OFFICE, OR WHERE THE QUESTION OF LAW INVOLVED IS NOT CONCLUSIVELY SETTLED BY THE COURTS, THE PAYMENT SHOULD NOT BE MADE ADMINISTRATIVELY UNTIL THE QUESTION HAS BEEN REFERRED HERE FOR APPROPRIATE DECISION OR, IN LIEU THEREOF, THE CLAIM MAY BE FORWARDED FOR DIRECT SETTLEMENT AFTER RESOLUTION OF DISPUTED MATERIAL FACTS UNDER THE PROCEDURE SET FORTH IN THE DISPUTES CLAUSE.

NO CHANGE IS CONTEMPLATED IN THE HANDLING OF GENERAL AVERAGE CLAIMS ARISING UNDER CHARTER AGREEMENTS CONTAINING THE DISPUTES CLAUSE, AND OUR DECISION OF JUNE 15, 1955, WITH REGARD THERETO SHOULD CONTINUE TO BE FOLLOWED.

HOWEVER, OUR EXPERIENCE WITH THE GENERAL AVERAGE CLAIMS TRANSMITTED TO OUR OFFICE FOR SETTLEMENT SUBSEQUENT TO OUR DECISION OF JUNE 15, 1955, HAS LED TO THE CONCLUSION THAT OUR DECISION OF MARCH 18, 1946, B 55025, SHOULD BE FURTHER MODIFIED WITH RESPECT TO GENERAL AVERAGE CLAIMS ARISING UNDER GOVERNMENT OR COMMERCIAL BILLS OF LADING. ACCORDINGLY, THESE CLAIMS NEED NO LONGER BE TRANSMITTED HERE FOR SETTLEMENT BUT SHOULD BE SETTLED ADMINISTRATIVELY IN THE ABSENCE OF DOUBTFUL QUESTIONS OF LAW OR FACT. ANY CLAIM WHICH INVOLVES THE RESOLUTION OF DOUBTFUL QUESTIONS OF LAW OR FACT SHOULD BE TRANSMITTED TO OUR OFFICE FOR SETTLEMENT.

THE CLAIM TRANSMITTED TO OUR OFFICE BY THE LETTER OF JANUARY 25, 1960, WHICH IS RETURNED HEREWITH TOGETHER WITH ALL PERTINENT PAPERS, MAY BE PAID ADMINISTRATIVELY IN THE AMOUNT CLAIMED, IF OTHERWISE PROPER.