B-158984-0.M June 13, 1966

B-158984-0.M: Jun 13, 1966

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Claims Division Returned herewith is your file Z-2310949 relative to the claim of Bennett & Company. Leakage was found in No. 1 hold and the starboard boiler tubes were leaking. The suit was settled by the department by acceptance of $7. Although the claim for general average contribution was sent here by the Department of Agriculture because it is time - barred by the two - year statute of limitation on suits in admiralty against the Government. It is not barred from consideration by our Office as the claim has been presented here well within our ten - year barring act. The contract of carriage here involved is represented by a commercial bill of lading covering a shipment of wheat donated to the Government of Jordan under Title II.

B-158984-0.M June 13, 1966

Director, Claims Division

Returned herewith is your file Z-2310949 relative to the claim of Bennett & Company.

The claim for $951.93, by Bennett & Company, average adjusters, represents the contribution by Government - sponsored Public Law 480 cargo and by the freight to the general average expenses incurred during a voyage of the S. S. Asian. As related in the general average statement the incident happened between April 18, and May 4, 1963, when the vessel, bound from New Orleans, Louisiana, to Karachi, Pakistan, encountered heavy weather. Also, leakage was found in No. 1 hold and the starboard boiler tubes were leaking. In view of great danger to vessel and cargo and for the common safety the Master jettisoned boards and shores stowed on the forward deck.

Apparently the Department of Agriculture did not consider this general average claim previously because the Department of Justice had recommended that the claim be paid as billed rather than to risk prejudicing a proposed compromise of a cargo damage suit then pending. The suit was settled by the department by acceptance of $7,500.

Although the claim for general average contribution was sent here by the Department of Agriculture because it is time - barred by the two - year statute of limitation on suits in admiralty against the Government, 46 U. S. C. 745, it is not barred from consideration by our Office as the claim has been presented here well within our ten - year barring act, 31 U. S. C. 71a. See 29 Comp. Gen. 45.

The contract of carriage here involved is represented by a commercial bill of lading covering a shipment of wheat donated to the Government of Jordan under Title II, section 201 of the Agricultural Trade development and Assistance Act of 1954 (Public Law 480), 68 Stat. 457, as amended, 7 U. S. C. 1721. The shipment was transported from Orange, Texas, to Ababa, Jordan, or between a port of the United States and a foreign port in foreign trade and hence is subject to the Carriage of Goods by Sea Act (COGSA), 46 U. S. C. 1300, et seq. The record indicates that the vessel was under a time - charter which has been held not to be charter party. Guzman v. Pichirilo, 369 U. S. 698, 700 (1962). Thus, the bill of lading issued under the time - charter is not exempt from the provision of COGSA. 46 U. S. C. 1305.

Under 46 U. S. C. 1305 it is also provided that nothing in COGSA shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average, For general average purposes the bill of lading refers to the York / Antwerp Rules, 1950, and contains a provision entitled "NEW JASON CLAUSE" reading as follows:

"In event of accident, danger, damage or disaster before or after the commencement of the voyage, resulting from any cause whatsoever, whether due to negligence, or not, for which, or for the consequence of which the carrier is not responsible, by statute, contract, or otherwise the goods, shippers, consignees or Owners of the goods, shall contribute with the carrier in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the goods."

The heavy weather encountered appears to be a peril of the sea for which the carrier or ship is not responsible under section 4(2)(c) of COGSA, 46 U. S. C. 1304(2)(c). M/V Black Eagle, 1962 AMC 1985. Moreover, there is no indication in the record that any unseaworthiness of the vessel caused or contributed to the loss. See B-156887-O.M., February 23, 1966, and B-157519, February 15, 1966.

Accordingly, and if otherwise correct, the claim for $951.93 should be allowed.

FRANK H. WEITZEL

Assistant Comptroller General of the United States