B-2811, JANUARY 16, 1940, 19 COMP. GEN. 651

B-2811: Jan 16, 1940

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CARGO IS CARRIED AT THE RISK OF THE OWNER. THE DEDUCTION REPRESENTS THE VALUE ($4) OF TWO GLASS DRIP PANS WHICH WERE FOUND TO BE BROKEN ON DELIVERY AT DESTINATION IN THE SHIPMENT COVERED BY BILL OF LADING T-345737. IN PART: * * * WE * * * FIND THAT OUR SAN JUAN OFFICE HAS REPORTED THAT THIS SHIPMENT AS WELL AS THE REMAINING 3 WERE ALL DELIVERED IN GOOD CONDITION AGAINST A CLEAN RECEIPT. IT WOULD APPEAR THAT THIS COMPANY IS NOT RESPONSIBLE FOR THE DAMAGE. WHICH WAS APPARENTLY OF A CONCEALED NATURE. ESPECIALLY SO SINCE FRAGILE CARGO IS CARRIED AT THE RISK OF THE OWNER. WAS RECEIVED BY THE NEW YORK AND PORTO RICO STEAMSHIP CO. UPON DELIVERY AT SAN JUAN IT WAS FOUND THAT TWO GLASS DRIP PANS WERE BROKEN.

B-2811, JANUARY 16, 1940, 19 COMP. GEN. 651

TRANSPORTATION - VESSELS - DAMAGE OR LOSS IN TRANSIT - EFFECT OF STIPULATION AGAINST LIABILITY A PROVISION IN TRANSPORTATION RATES PUBLISHED TO APPLY ON ARTICLES SHIPPED BY VESSEL, THAT THE ,CARGO IS CARRIED AT THE RISK OF THE OWNER," DOES NOT RELIEVE THE CARRIER OF RESPONSIBILITY FOR BREAKAGE CAUSED BY NEGLIGENCE, PARTICULARLY AS THE HARTER ACT, 27 STAT. 445, EXPRESSLY PROHIBITS INSERTION IN ANY BILL OF LADING OF ANY AGREEMENT RELIEVING THE OWNER OF ANY VESSEL TRANSPORTING MERCHANDISE FROM PORTS OF THE UNITED STATES, FROM LIABILITY ARISING FROM NEGLIGENCE IN LOADING, STOWAGE, CUSTODY, CARE, OR PROPER DELIVERY OF PROPERTY COMMITTED TO ITS CHARGE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE NEW YORK AND PORTO RICO STEAMSHIP CO., JANUARY 16, 1940:

THERE HAS BEEN CONSIDERED YOUR REQUEST FOR ALLOWANCE OF $4 OF THE AMOUNT, $4.15, DEDUCTED IN SETTLEMENT NO. T-135436, OCTOBER 10, 1938, UPON YOUR BILL 2114, FOR CHARGES FOR THE TRANSPORTATION OF FOUR SHIPMENTS OF MISCELLANEOUS FREIGHT FROM NEW YORK, N.Y., TO SAN JUAN, P.R., IN JANUARY 1936. THE DEDUCTION REPRESENTS THE VALUE ($4) OF TWO GLASS DRIP PANS WHICH WERE FOUND TO BE BROKEN ON DELIVERY AT DESTINATION IN THE SHIPMENT COVERED BY BILL OF LADING T-345737, AND THE UNEARNED FREIGHT THEREON (15 CENTS).

YOUR REQUEST STATES, IN PART:

* * * WE * * * FIND THAT OUR SAN JUAN OFFICE HAS REPORTED THAT THIS SHIPMENT AS WELL AS THE REMAINING 3 WERE ALL DELIVERED IN GOOD CONDITION AGAINST A CLEAN RECEIPT. IN THE CIRCUMSTANCES, IT WOULD APPEAR THAT THIS COMPANY IS NOT RESPONSIBLE FOR THE DAMAGE, WHICH WAS APPARENTLY OF A CONCEALED NATURE, ESPECIALLY SO SINCE FRAGILE CARGO IS CARRIED AT THE RISK OF THE OWNER.

AS SHOWN BY THE RECORD, THE SHIPMENT COVERED BY BILL OF LADING T 345737, WAS RECEIVED BY THE NEW YORK AND PORTO RICO STEAMSHIP CO. AT NEW YORK ON JANUARY 18, 1936, IN APPARENT GOOD ORDER AND CONDITION. UPON DELIVERY AT SAN JUAN IT WAS FOUND THAT TWO GLASS DRIP PANS WERE BROKEN, AND THE CHIEF QUARTERMASTER OFFICER IN RECEIPTING FOR THE SHIPMENT, MADE NOTATION TO THIS EFFECT UPON THE REVERSE SIDE OF THE BILL OF LADING (WHICH IS THE OFFICIAL RECEIPT FOR THE PROPERTY), IN THE MANNER THEREIN PROVIDED. THE WEIGHT OF THE DAMAGED ARTICLES WAS SHOWN AS 9 POUNDS, AND THE VALUE AS $4. FROM THIS RECORD IT APPEARS THAT THE DAMAGE OCCURRED WHILE IN CUSTODY OF THE CARRIER, AND THAT THE CARRIER HAD NOTICE OF THE DAMAGE. THE ARTICLES WERE PACKED IN A CASE SO AS TO INSURE SAFE TRANSPORTATION TO DESTINATION UNDER ORDINARY CARE AND HANDLING. UNDER THE CIRCUMSTANCES IT WOULD APPEAR THAT THE DAMAGE RESULTED FROM NEGLIGENCE IN THE HANDLING OR STOWAGE OF THE MERCHANDISE.

WHILE IT MAY BE THAT THE RATES PUBLISHED TO APPLY ON THE ARTICLES SHIPPED, PROVIDE THAT THE ,CARGO IS CARRIED AT THE RISK OF THE OWNER," IT DOES NOT APPEAR THAT SUCH STIPULATION RELIEVES THE CARRIER OF RESPONSIBILITY FOR BREAKAGE CAUSED BY NEGLIGENCE.

THE HARTER ACT, 27 STAT. 445, EXPRESSLY PROHIBITS INSERTION IN ANY BILL OF LADING, ANY AGREEMENT RELIEVING THE OWNER OF ANY VESSEL TRANSPORTING MERCHANDISE FROM PORTS OF THE UNITED STATES, FROM LIABILITY ARISING FROM NEGLIGENCE IN LOADING, STOWAGE, CUSTODY, CARE, OR PROPER DELIVERY OF PROPERTY COMMITTED TO ITS CHARGE, AND BESIDES IT SEEMS ANY SUCH STIPULATION WOULD BE VOID EVEN INDEPENDENTLY OF THE STATUTE. ( LIVERPOOL AND GREAT WESTERN STEAM CO. V. PHOENIX INSURANCE CO., 129 U.S. 397; THE TAMPICO, 151 FED. 689, AND DIETRICH V. U.S. SHIPPING BOARD, 9 FED. (2D) 733).

ACCORDINGLY, THE DEDUCTION FOR VALUE OF THE DAMAGE TO THE SHIPMENT APPARENTLY WAS PROPER AND THE SETTLEMENT MAY NOT BE MODIFIED AS URGED.