B-160225, MAR. 31, 1967

B-160225: Mar 31, 1967

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REFERENCE IS MADE TO THE ABOVE CLAIM BY YOUR COMPANY FOR A GENERAL AVERAGE CONTRIBUTION OF $7. IS SUPPORTED BY A GENERAL AND PARTICULAR AVERAGE STATEMENT CONTAINING A REPORT OF SURVEY MADE AT HONOLULU. THE UNDERTAKING IN QUESTION WAS COVERED BY A CHARTER PARTY DATED JUNE 14. A SUBSTITUTION OF VESSEL CLAUSE WAS INCLUDED IN THE CHARTER PARTY. A BILL OF LADING WAS ISSUED AT NEW YORK AND SIGNED BY THE MASTER. IT SHOWED THAT THE UREA WAS LOADED AT MAMONAL. THE RECORD IS NOT CLEAR AS TO THE ROUTE OF THE VESSEL. IT WAS TO PROCEED IN BALLAST TO MAMONAL. TOTAL AMOUNT OF THE GENERAL AVERAGE CONTRIBUTION TO THE EXPENSES OCCASIONED BY THE BOILER FAILURE IS SHOWN TO BE $14. 973.12 AND THE UNITED STATES GOVERNMENT SHARE OF THIS CONTRIBUTION IS SHOWN TO BE $7.

B-160225, MAR. 31, 1967

TO FRANK B. HALL AND COMPANY, INC.:

SUBJECT: SS KINGSUN - BOILER DAMAGE,

NOVEMBER 10, 1965. GENERAL

AVERAGE CLAIM NO. 7312.

REFERENCE IS MADE TO THE ABOVE CLAIM BY YOUR COMPANY FOR A GENERAL AVERAGE CONTRIBUTION OF $7,426.76 ON AGENCY FOR INTERNATIONAL DEVELOPMENT CARGO ABOARD THE SS KINGSUN IN NOVEMBER 1965, WHEN THE VESSEL DEVELOPED ENGINE TROUBLE.

YOUR CLAIM, PRESENTED ORIGINALLY TO THE DEPARTMENT OF STATE, AGENCY FOR INTERNATIONAL DEVELOPMENT, IS SUPPORTED BY A GENERAL AND PARTICULAR AVERAGE STATEMENT CONTAINING A REPORT OF SURVEY MADE AT HONOLULU, HAWAII, ON DECEMBER 28, 1965. THE FACTS RELATED IN THE SURVEYOR'S REPORT CONSTITUTE THE BASIS OF YOUR CLAIM FOR GENERAL AVERAGE CONTRIBUTION.

THE UNDERTAKING IN QUESTION WAS COVERED BY A CHARTER PARTY DATED JUNE 14, 1965, BETWEEN INTERNATIONAL UNION MARINE CORPORATION AND THE TITAN INDUSTRIAL CORPORATION OF NEW YORK. THE CHARTER PARTY CALLED FOR THE TRANSPORTATION OF 6,000 METRIC TONS OF UREA, IN BAGS, FROM MAMONAL, COLOMBIA, TO SAIGON, SOUTH VIETNAM, TO BE LOADED ABOARD THE SS FULDA "OR SIMILAR SUBSTITUTE.' A SUBSTITUTION OF VESSEL CLAUSE WAS INCLUDED IN THE CHARTER PARTY.

ON SEPTEMBER 30, 1965, A BILL OF LADING WAS ISSUED AT NEW YORK AND SIGNED BY THE MASTER. IT SHOWED THAT THE UREA WAS LOADED AT MAMONAL, COLOMBIA, ABOARD THE SS KINGSUN (NATIONALIST CHINESE FLAG). THE AMERICAN BUREAU OF SHIPPING RECORD FOR 1965 SHOWS THIS VESSEL TO BE OWNED AND OPERATED BY THE UNION MARINE CORPORATION, LTD., OF KEELUNG, FORMOSA. BOTH THE CHARTER PARTY AND THE BILL OF LADING CONTAINED REFERENCE TO THE NEW JASON CLAUSE AND THE CARRIAGE OF GOODS BY SEA ACT, 49 U.S.C. 1300 ET SEQ.

THE RECORD IS NOT CLEAR AS TO THE ROUTE OF THE VESSEL; ACCORDING TO THE CHARTER PARTY, IT WAS TO PROCEED IN BALLAST TO MAMONAL, COLOMBIA, TO TAKE ON THE AFOREMENTIONED CARGO. NEITHER DOES THE RECORD HERE SHOW WHEN THE VESSEL SAILED FROM MAMONAL, COLOMBIA, FOR SAN FRANCISCO, CALIFORNIA. SAN FRANCISCO, THE VESSEL APPARENTLY TOOK ON A QUANTITY OF DRIED MILK, AND, ACCORDING TO YOUR GENERAL AND PARTICULAR AVERAGE STATEMENT, DEPARTED FROM SAN FRANCISCO ON OCTOBER 31, 1965.

A DEVIATION IN ROUTE TO PUT IN AT HONOLULU TO ACCOMPLISH BOILER REPAIRS OCCURRED ON NOVEMBER 9, 1965. THE COST OF SUCH REPAIRS AMOUNTED TO $39,661.86. TOTAL AMOUNT OF THE GENERAL AVERAGE CONTRIBUTION TO THE EXPENSES OCCASIONED BY THE BOILER FAILURE IS SHOWN TO BE $14,973.12 AND THE UNITED STATES GOVERNMENT SHARE OF THIS CONTRIBUTION IS SHOWN TO BE $7,426.76.

AS INDICATED ABOVE, THE EXPENSES INCURRED ARE FOR REPAIRS TO DAMAGED BOILERS, WHICH CAUSED A POWER FAILURE APPROXIMATELY NINE DAYS OUT OF SAN FRANCISCO. THE REPORT MADE BY THE SURVEYOR AT HONOLULU SHOWED THE BOILER DAMAGE TO BE EXTENSIVE AND ATTRIBUTED IT TO CREW NEGLIGENCE IN FAILING TO PROPERLY MAINTAIN THE BOILERS. IN PARTICULAR, IT IS STATED ON PAGE 6 OF THE REPORT THAT THE ,BASIC CAUSE OF THE DAMAGE WAS THE RESULT OF IMPROPER TREATMENT OF BOILER WATER AND LACK OF PROPER CLEANING OF THE FIRE SIDES OF THE BOILER.' YOUR CLAIM FOR CONTRIBUTION, THEREFORE, APPEARS TO BE BASED ON THE PROVISION OF THE NEW, OR AMENDED, JASON CLAUSE (INCLUDED IN THE CHARTER PARTY BY CLAUSE 37), WHICH READS:

"IN THE 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 TO THE GOODS.'

CO-EXISTENT WITH THE DISCLAIMER OF LIABILITY PROTECTING THE VESSEL IN THE ABOVE-CITED CLAUSE ARE THE PROVISIONS OF SECTION 4 (1) OF THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1304 (1), WHICH STATES:

"/1) UNSEAWORTHINESS.

"NEITHER THE CARRIER NOR THE SHIP SHALL BE LIABLE FOR LOSS OR DAMAGE ARISING OR RESULTING FROM UNSEAWORTHINESS UNLESS CAUSED BY WANT OF DUE DILIGENCE ON THE PART OF THE CARRIER TO MAKE THE SHIP SEAWORTHY, AND TO SECURE THAT THE SHIP IS PROPERLY MANNED, EQUIPPED, AND SUPPLIED, AND TO MAKE THE HOLDS, REFRIGERATING AND COOL CHAMBERS, AND ALL OTHER PARTS OF THE SHIP IN WHICH GOODS ARE CARRIED FIT AND SAFE FOR THEIR RECEPTION, CARRIAGE, AND PRESERVATION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (1) OF SECTION 1303 OF THIS TITLE. WHENEVER LOSS OR DAMAGE HAS RESULTED FROM UNSEAWORTHINESS, THE BURDEN OF PROVING THE EXERCISE OF DILIGENCE SHALL BE ON THE CARRIER OR OTHER PERSONS CLAIMING EXEMPTION UNDER THIS SECTION.'

WE CONCUR IN THE GENERAL VIEW THAT NEGLIGENCE OF THE CREW OR ERRORS IN THE MANAGEMENT OR NAVIGATION OF THE VESSEL COME WITHIN THE EXCEPTIONS OF THE AMENDED JASON CLAUSE, AND WE WOULD NOT DENY LIABILITY FOR A CONTRIBUTION WHERE THE FACTS CLEARLY ESTABLISH THE EXISTENCE OF THE GENERAL AVERAGE INCIDENT. BUT IN THIS PARTICULAR CASE, WE HAVE CONSIDERABLE DOUBT THAT ALL THE DAMAGE TO THE BOILERS, AS RECITED IN THE SURVEYOR'S REPORT, COULD HAVE OCCURRED BETWEEN THE TIME THE VESSEL LEFT MAMONAL, COLOMBIA, AND THE TIME THE BOILERS BROKE DOWN. IN SUBSTANCE, THE WORK RECOMMENDED BY THE SURVEYOR'S REPORT SUGGESTS AN ALMOST COMPLETE OVERHAUL AND REBUILDING OF THE BOILERS. SERIOUS QUESTION ARISES AS TO WHETHER THE DAMAGE COULD HAVE BEEN SO EXTENSIVE IN THAT SHORT PERIOD OF TIME, IF THE VESSEL WAS SEAWORTHY AT THE TIME OF DEPARTURE FROM MAMONAL, COLOMBIA.

THE SURVEYOR'S REPORT SHOWS, AMONG OTHER THINGS, THAT ON THE STARBOARD BOILER, ALL SCREEN TUBES NEEDED REPLACEMENT; THE FURNACE FLOOR AND FRONT WALL BRICK WORK HAD TO BE RENEWED ENTIRELY; AND THAT BROKEN AND MISSING TILES IN THE GENERATING TUBE BANK ROOF ALSO HAD TO BE RENEWED. THE PORT BOILER SHOWED SUBSTANTIALLY THE SAME CONDITIONS. ANALYZING THE NATURE OF THE DAMAGE AND ITS EXTENT THROUGHOUT BOTH BOILERS, IT SEEMS THAT WHILE CREW NEGLIGENCE OR ERRORS IN THE MANAGEMENT OF THE VESSEL MAY HAVE BEEN RESPONSIBLE FOR THE DAMAGE, SUCH NEGLIGENCE OR ERRORS OCCURRED SOME TIME BEFORE THE VOYAGE IN QUESTION.

THE CHARTER PARTY, WHICH GOVERNED THE RIGHTS AND LIABILITIES OF THE PARTIES TO THIS TRANSACTION, CONTAINED A PROVISION IN CLAUSE 1 THAT THE VESSEL TO BE USED WAS "TIGHT, STAUNCH, AND IN EVERY WAY FIT FOR THE VOYAGE.' THE CONDITION OF THESE BOILERS STRONGLY SUGGESTS THAT THE VESSEL WAS NOT FIT FOR THE VOYAGE. ON THE BASIS OF THIS RECORD, THEREFORE, WE ARE OF THE VIEW THAT THE EVIDENCE DOES NOT ESTABLISH THAT THE VESSEL IS ENTITLED TO THE BENEFIT OF THE EXCEPTION IN THE AMENDED JASON CLAUSE.

AS STATED IN FIRESTONE SYNTHETIC FIBERS CO. V. M/S BLACKHERON, 324 F.2D 835, 836 (1963), TO BRING ITSELF WITHIN THE PROTECTION OF THE AMENDED JASON CLAUSE, THE VESSEL OWNER MUST PRODUCE EVIDENCE ESTABLISHING A RIGHT TO THE DEFENSE AFFORDED THEREIN. IN THIS CASE WE HAVE ONLY THE STATEMENT OF THE AVERAGE ADJUSTER. A SIMILAR STATEMENT BY AN AVERAGE ADJUSTER HAS BEEN VIEWED AS AN EX PARTE DOCUMENT AND AS MERELY THE SHIPOWNERS' VERSION OF THE ACCOUNT AS BETWEEN THE PARTIES. THE NESCO, 47 F.2D 643 (1931). SUCH A STATEMENT IS NOT CONCLUSIVE ON THE PARTIES IN THE ABSENCE OF AN AGREEMENT TO THAT EFFECT IN THE SHIPPING CONTRACT. REBORA V. BRITISH AND FOREIGN MARINE INSURANCE CO., 180 N.E. 90 (1932). NO SUCH AGREEMENT APPEARS IN THE CHARTER PARTY IN THIS CASE.

THE VESSEL SS KINGSUN IS A SO-CALLED LIBERTY SHIP. THE AMERICAN BUREAU OF SHIPPING RECORD FOR 1965 SHOWS IT WAS BUILT AND BOILERS INSTALLED AT BALTIMORE, MARYLAND, IN DECEMBER 1943. THE VESSEL APPEARS TO HAVE CHANGED HANDS ON A NUMBER OF OCCASIONS, BEING KNOWN AT VARIOUS TIMES AS SS UNIVERSAL, OCEAN SHIPPER, SOUTHWAVE, AMERSEA, FRANK B. STOCKTON AND, FINALLY, THE KINGSUN, IN 1962. THE LAST SURVEY BY AN AMERICAN BUREAU OF SHIPPING SURVEYOR WAS MADE IN JANUARY 1964, ALMOST TWO YEARS BEFORE THIS INCIDENT OCCURRED. NO INFORMATION HAS BEEN FURNISHED AS TO WHEN THE LAST COAST GUARD INSPECTION OF THE VESSEL WAS MADE.

WE FIND NO BASIS ON THIS RECORD TO SUPPORT YOUR CLAIM FOR A GENERAL AVERAGE CONTRIBUTION, AND OUR CLAIMS DIVISION IS BEING INSTRUCTED TO DISALLOW IT BY APPROPRIATE CERTIFICATE OF SETTLEMENT.