B-143961, OCT. 14, 1960

B-143961: Oct 14, 1960

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WAS IN COLLISION WITH THE TANKER "BROOKFIELD" AND HAD TO RETURN TO NEW YORK FOR REPAIRS. ALTHOUGH THE ADJUSTMENT OF GENERAL AVERAGE (PREPARED IN LONDON) IS DATED AUGUST 2. THIS CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL APRIL 24. WHEN IT WAS FORWARDED HERE FOR SETTLEMENT BY THE DEPARTMENT OF THE ARMY. THE VIEW IS ADVANCED THAT THE STATUTORY PERIOD HAS NOT EXPIRED SINCE THE CLAIM FIRST ACCRUED IN 1952. THE EARLIEST TIME THE ADJUSTMENT IN GENERAL AVERAGE COULD HAVE BEEN MADE AS THE NECESSARY DOCUMENTS WERE IN THE UNITED STATES INCIDENT TO SETTLEMENT OF THE COLLISION LIABILITY. A CLAIM FOR CONTRIBUTION FIRST ACCRUES UPON RENDITION OF A GENERAL AVERAGE STATEMENT FIXING THE AMOUNTS FOR CONTRIBUTION WAS CONSIDERED BY THE SUPREME COURT OF THE UNITED STATES IN UNITED STATES V.

B-143961, OCT. 14, 1960

TO BARBER STEAMSHIP LINES, INC.:

YOUR LETTER OF AUGUST 25, 1960, RESUBMITS THE CLAIM FOR CONTRIBUTION IN GENERAL AVERAGE OF THE OWNERS OF THE M. V.'STIRLING CASTLE," THE UNION- CASTLE MAIL STEAMSHIP CO., LTD., LONDON, ENGLAND. WE PREVIOUSLY DECLINED TO TAKE COGNIZANCE OF THE CLAIM, INVOLVING THE SUM OF $102.69, IN VIEW OF THE ACT OF OCTOBER 9, 1940 (31 U.S.C. 71A), BARRING A CLAIM NOT RECEIVED IN OUR OFFICE "WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

THE EVENT GIVING RISE TO THE CLAIM FOR CONTRIBUTION OCCURRED IN 1944. THE "STIRLING CASTLE," SAILING FROM NEW YORK WITH CARGO OF THE UNITED STATES ARMY, ON SEPTEMBER 20, 1944, WAS IN COLLISION WITH THE TANKER "BROOKFIELD" AND HAD TO RETURN TO NEW YORK FOR REPAIRS. ALTHOUGH THE ADJUSTMENT OF GENERAL AVERAGE (PREPARED IN LONDON) IS DATED AUGUST 2, 1955, A LAPSE OF MORE THAN 10 YEARS, AND THIS CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL APRIL 24, 1956, WHEN IT WAS FORWARDED HERE FOR SETTLEMENT BY THE DEPARTMENT OF THE ARMY, THE VIEW IS ADVANCED THAT THE STATUTORY PERIOD HAS NOT EXPIRED SINCE THE CLAIM FIRST ACCRUED IN 1952, THE EARLIEST TIME THE ADJUSTMENT IN GENERAL AVERAGE COULD HAVE BEEN MADE AS THE NECESSARY DOCUMENTS WERE IN THE UNITED STATES INCIDENT TO SETTLEMENT OF THE COLLISION LIABILITY.

WHETHER, AS APPARENTLY CONTENDED, A CLAIM FOR CONTRIBUTION FIRST ACCRUES UPON RENDITION OF A GENERAL AVERAGE STATEMENT FIXING THE AMOUNTS FOR CONTRIBUTION WAS CONSIDERED BY THE SUPREME COURT OF THE UNITED STATES IN UNITED STATES V. ATLANTIC MUTUAL INSURANCE CO. (THE LOGAN), 298 U.S. 483. THE COURT, AFTER STATING THAT COURTS HAVE GENERALLY REGARDED THE RIGHT TO CONTRIBUTION AS ACCRUING UPON THE ARRIVAL OF THE SHIP AT THE PORT OF DESTINATION AND THE DELIVERY OF THE CARGO, WENT ON TO SAY:

"* * * THAT THE AMOUNT OF THE REQUIRED CONTRIBUTION MAY THEN BE UNLIQUIDATED IS NO OBSTACLE, FOR IN PROPER SEQUENCE LIQUIDATION COMES AFTER ACCRUAL, AND CAN BE MADE IN THE SUIT OR ACTION WHEREIN THE RIGHT IS PRESENTED FOR ADJUDICATION. IN THIS REGARD A CLAIM FOR CONTRIBUTION DOES NOT DIFFER FROM MANY OTHERS WHERE AT THE TIME OF ACCRUAL THE RECOVERABLE DAMAGES OR AMOUNT DUE REMAINS UNLIQUIDATED. AS WAS WELL SAID IN A RELATED CASE,"THE LAW IS FAMILIAR ENOUGH IN ACTIONS OF TORT AND IN MANY ACTIONS IN CONTRACT, WITH LIABILITIES WHICH ARE PRESENTLY DUE, ALTHOUGH UNLIQUIDATED.'"

YOU WERE ADVISED, IN LIGHT OF THE FOREGOING, THAT THE MATTERS PRESENTED IN YOUR RECENT LETTER AFFORD NO BASIS FOR CONSIDERING THIS CLAIM AS HAVING BEEN FILED HERE WITHIN 10 YEARS OF ITS ACCRUAL, AND THAT WE REMAIN OF THE VIEW THAT THE CLAIM IS BARRED BY THE ACT OF 1940.