B-156590, JUL. 9, 1965

B-156590: Jul 9, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF A SETTLEMENT CERTIFICATE DATED APRIL 9. 342.28 IN DAMAGES AND OTHER EXPENSES SAID TO HAVE BEEN SUSTAINED BY THE S.S. - WAS CHARTERED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE TO TRANSPORT A CARGO OF BULK WHEAT TO SOUSSE. THE VESSEL WAS REFLOATED SEVERAL DAYS LATER WITH THE AID OF THREE TUGS OWNED BY THE TUNISIAN GOVERNMENT AFTER A PORTION OF THE CARGO WAS LIGHTENED. THE STATEMENT OF GENERAL AND PARTICULAR AVERAGE SHOWS THAT DAMAGE WAS SUSTAINED TO THE BOTTOM OF THE VESSEL IN GOING AGROUND AND TO THE SIDE OF THE VESSEL DURING REFLOATING OPERATIONS WHEN BUMPED BY A TUG. THE APPORTIONMENT OF GENERAL AVERAGE FOR WHICH THE UNITED STATES DEPARTMENT OF AGRICULTURE IS RESPONSIBLE AS OWNER OF THE CARGO IS STATED AS $14.

B-156590, JUL. 9, 1965

TO ISTHMIAN LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF A SETTLEMENT CERTIFICATE DATED APRIL 9, 1965, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM NO. 159-H FOR $74,342.28 IN DAMAGES AND OTHER EXPENSES SAID TO HAVE BEEN SUSTAINED BY THE S.S. BEAVER STATE, VOYAGE 96.

THIS SHIP--- OWNED BY STATES MARINE LINES, INC., AND TIME CHARTERED TO YOUR COMPANY--- WAS CHARTERED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE TO TRANSPORT A CARGO OF BULK WHEAT TO SOUSSE, TUNISIA. WHILE UNDER CONTROL OF A PILOT THE VESSEL STRANDED IN THE ENTRANCE CHANNEL TO SOUSSE ON JUNE 20, 1963. THE VESSEL WAS REFLOATED SEVERAL DAYS LATER WITH THE AID OF THREE TUGS OWNED BY THE TUNISIAN GOVERNMENT AFTER A PORTION OF THE CARGO WAS LIGHTENED.

THE STATEMENT OF GENERAL AND PARTICULAR AVERAGE SHOWS THAT DAMAGE WAS SUSTAINED TO THE BOTTOM OF THE VESSEL IN GOING AGROUND AND TO THE SIDE OF THE VESSEL DURING REFLOATING OPERATIONS WHEN BUMPED BY A TUG. THIS STATEMENT LISTS EXPENSES TOTALING $75,904.82 AND APPORTIONS $24,045.48 TO GENERAL AVERAGE, $42,624.42 TO PARTICULAR AVERAGE, AND $9,234.92 TO OWNERS. THE APPORTIONMENT OF GENERAL AVERAGE FOR WHICH THE UNITED STATES DEPARTMENT OF AGRICULTURE IS RESPONSIBLE AS OWNER OF THE CARGO IS STATED AS $14,203.73.

YOUR ORIGINAL CLAIM FOR $74,342.28 WAS DISALLOWED BY OUR CLAIMS DIVISION IN THE SETTLEMENT CERTIFICATE OF APRIL 9, 1965, FOR THE REASON THAT THE RECORD DID NOT ESTABLISH CLEARLY THE FACTS AND PRINCIPLES ON WHICH YOUR CLAIM WAS BASED. AT THAT TIME IT WAS POINTED OUT THAT THE GENERAL AVERAGE CLAIM AGAINST THE UNITED STATES GOVERNMENT FOR $14,203.73 HAD BEEN CERTIFIED FOR ALLOWANCE IN FULL.

IN YOUR REPLY OF APRIL 14, 1965, YOU REDUCED YOUR ORIGINAL CLAIM BY $14,203.73--- THE AMOUNT CERTIFIED FOR PAYMENT AS THE GOVERNMENT'S GENERAL AVERAGE CONTRIBUTION--- BUT ONCE AGAIN FAILED TO FURNISH ANY LEGAL BASIS TO SUPPORT YOUR APPARENT POSITION THAT THE GOVERNMENT SHOULD BEAR ALMOST ENTIRELY THE TOTAL DAMAGES AND EXPENSES ARISING OUT OF THE STRANDING INCIDENT. YOUR CLAIM, CONSEQUENTLY, FALLS WITHIN THAT CLASS OF CASES WHICH ACCOUNTING OFFICERS MUST REJECT BECAUSE OF DOUBTFUL VALIDITY IN FACT OR LAW, LEAVING TO THE CLAIMANT HIS REMEDY IN COURT. SEE UNITED STATES V. NEW YORK, N.H. AND H.R. CO., 355 U.S. 253, 255-256, FOOTNOTE 4 (1957); LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291 (1881); AND CHARLES V. UNITED STATES, 19 CT.CL. 316, 319 (1884).

YOU ADVISED US IN YOUR LETTER OF JUNE 18, 1965, THAT TO PREVENT YOUR CLAIM FROM BEING TIME-BARRED IN THE COURTS STATES MARINE LINES, INC., FILED AN ACTION AGAINST YOUR COMPANY ON JUNE 16, 1965, AND THAT AN IMPLEADING PETITION WAS FILED BY YOUR COMPANY AGAINST THE UNITED STATES. IN THESE CIRCUMSTANCES, WE WILL NOT TAKE ANY FURTHER ACTION ON YOUR CLAIM AT THIS TIME, SINCE 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 (1954).