B-151207, MAY 22, 1963

B-151207, MAY 22, 1963

TO FRANK B. HALL AND CO., INC.:

WE HAVE A LETTER DATED MARCH 25, 1963, FROM YOUR SAN FRANCISCO OFFICE WHICH REQUESTS A FURTHER REVIEW OF THE DISALLOWANCE ACTION OF THIS OFFICE, DUE TO THE FAILURE TO ESTABLISH THE EXERCISE OF DUE CARE TO MAKE THE VESSEL SEAWORTHY, WITH RESPECT TO A CLAIM FOR GENERAL AVERAGE CONTRIBUTION FOR GOVERNMENT CARGO ABOARD THE SS. COLORADO WHICH ALLEGEDLY SUFFERED A GENERAL AVERAGE ACCIDENT UNDER THE CIRCUMSTANCES HEREINAFTER RELATED.

THE FACTS OF RECORD BEFORE THIS OFFICE SHOW THAT THE VESSEL SAILED FROM YOKOHAMA, JAPAN, TO VANCOUVER, BRITISH COLUMBIA, ON MARCH 30, 1961. WHILE ON THIS EASTBOUND VOYAGE THE VESSEL ENCOUNTERED HIGH WINDS AND ROUGH SEAS ON APRIL 5, 1961, CAUSING THE MASTER TO SLOW HIS VESSEL AND DEVIATE SLIGHTLY FROM THE REGULAR COURSE. ON APRIL 10, 1961, THE VESSEL REACHED VANCOUVER WHERE IT UNLOADED ITS CARGO AND RELOADED FOR A WESTBOUND VOYAGE. UPON LEAVING VANCOUVER THE VESSEL PROCEEDED TO SEATTLE AND PORTLAND AT WHICH LATTER PORT IT LOADED UNITED STATES GOVERNMENT CARGO. ON APRIL 14, 1961, WHILE PROCEEDING FROM PORTLAND TO TACOMA, WASHINGTON, WATER WAS DISCOVERED IN THE OIL OF THE VESSEL. ON APRIL 15, 1961, WHILE IN PORT AT TACOMA THE CHIEF ENGINEER REPORTED THAT SOUNDINGS OF THE NO. 1 STARBOARD DOUBLE BOTTOM FUEL TANK SHOWED APPROXIMATELY FOUR FEET OF SALT WATER. THE SHIP WAS UNLOADED AND DRYDOCKED AT SEATTLE, WASHINGTON, WHERE IT WAS DISCOVERED A CRACK IN THE VESSEL HULL HAD PERMITTED THE SEA WATER TO ENTER THE DOUBLE BOTTOM TANK. GENERAL AVERAGE IS ASSERTED ON THE BASIS OF AN AVERAGE ACCIDENT AND THE DAMAGE TO THE VESSEL WHICH GAVE RISE TO THE AVERAGE CLAIM IS ALLEGED TO HAVE OCCURRED AS A RESULT OF THE HEAVY WEATHER EXPERIENCED ON THE PREVIOUS EASTBOUND VOYAGE ON APRIL 5, 1961.

ON THE BASIS OF THESE FACTS OUT OFFICE DISALLOWED THE CLAIM FOR THE REASON THAT THE VESSEL OWNER FAILED TO INSPECT THE VESSEL AFTER COMPLETION OF THE EASTBOUND VOYAGE, AND THUS CANNOT BE SAID TO HAVE EXERCISED DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY, THE FULFILLMENT OF WHICH CONDITION IS REQUIRED UNDER LAW TO ENTITLE A SHIPOWNER TO CONTRIBUTION IN GENERAL AVERAGE.

THE LETTER OF MARCH 25, 1963, FROM YOUR SAN FRANCISCO OFFICE ENCLOSED A LETTER DATED MARCH 21, 1963, FROM MR. JOSEPH LAVIN WHO SERVED AS CHIEF ENGINEER ABOARD THE SS. COLORADO DURING THE PERIOD IN QUESTION. IT IS ASSERTED THAT SINCE THE BALLAST WHICH HAD BEEN IN THE DOUBLE BOTTOMS WAS PUMPED AT SEA BEFORE ARRIVAL IN VANCOUVER ON APRIL 10 AND THE TANKS WERE FOUND TO BE DRY AND THERE BEING NO OTHER EVIDENCE THAT THE VESSEL WAS NOT SEAWORTHY, THE VESSEL OWNER SHOULD NOT BE REQUIRED TO DRYDOCK THE SHIP TO ASCERTAIN WHETHER POSSIBLE DAMAGE HAD BEEN SUSTAINED IN ORDER TO SATISFY THE DUE DILIGENCE REQUIREMENT OF THE LAW.

MR. LAVIN'S LETTER OF MARCH 21 SETS FORTH THE FOLLOWING FACTS: THE BUNKERING REPORT DATED MARCH 30, 1961, WHEN THE VESSEL LEFT YOKOHAMA SHOWS THE NO. 1 PORT AND STARBOARD DOUBLE BOTTOM TANKS WERE BALLASTED FOR THE EASTBOUND VOYAGE. HEAVY WEATHER WAS ENCOUNTERED ON APRIL 5 BUT THERE WAS NO INDICATION OF RESULTING DAMAGE. IN THIS CONNECTION THE AVERAGE STATEMENT, PAGE 7, CONTAINS THE FOLLOWING EXCERPT FROM THE MASTER'S STATEMENT: "SOUNDINGS TAKEN DURING THE ABOVE DATES SHOWED NO INCREASE.' MR. LAVIN'S ACCOUNT CONTINUES SAYING THAT ON APRIL 10, PRIOR TO ARRIVAL IN VANCOUVER, THE BALLAST OF NO. 1 DOUBLE BOTTOMS WAS DUMPED AT SEA AS USUAL AND THE CUSTOMARY SOUNDINGS WHEN THE TANKS WERE EMPTY SHOWED THEM TO BE DRY. AFTER LEAVING VANCOUVER FUEL WAS SHIFTED TO THE NO. 1 DOUBLE BOTTOMS TO TRIM THE VESSEL. AFTER LOADING AT PORTLAND THE FUEL WAS TRANSFERRED BACK TO THE NO. 5 DEEP TANKS AND WHEN OIL WAS PUMPED FROM THESE TANKS TO THE SETTLERS WATER WAS FOUND IN THE OIL. MR. LAVIN MAKES THE FOLLOWING STATEMENT: "IT WAS THEN, AND PRIOR TO OUR ARRIVAL IN TACOMA ON APRIL 15TH, THAT THE NO. 1 STARBOARD DOUBLE BOTTOM TANK SHOWED APPROXIMATELY 4 FEET OF SALT WATER.' MR. LAVIN'S QUOTED STATEMENT ABOVE IS CONTRARY TO THE CHRONOLOGICAL ACCOUNT OF EVENTS APPEARING IN THE AVERAGE STATEMENT ON PAGE 4 UNDER "EXTRACT OF DECK LOG BOOK" WHICH STATES THAT ENGINE TROUBLE DEVELOPED ON APRIL 14 AND THE CHIEF ENGINEER REPORTED SALT WATER IN THE TANK IN QUESTION AT 1630, APRIL 15, 1961, AT TACOMA.

THE PURPOSE OF THE CORRESPONDENCE RECEIVED FROM YOUR SAN FRANCISCO OFFICE IS TO ESTABLISH TO THE SATISFACTION OF THIS OFFICE THAT UNDER THE FACTS AND CIRCUMSTANCES PRESENT DURING THE PREVIOUS EASTBOUND VOYAGE AND THE SUCCEEDING WESTBOUND VOYAGE THERE IS A PROPER BASIS FOR DETERMINING THAT THE VESSEL OWNER EXERCISED THE DUE DILIGENCE REQUIRED TO MAKE THE VESSEL SEAWORTHY. IN YOUR EFFORTS TO CONVINCE THIS OFFICE OF THE EXERCISE OF THE REQUIRED DUE DILIGENCE YOU HAVE PLACED BEFORE THIS OFFICE THE ISSUE OF WHETHER, UNDER THE CIRCUMSTANCES IN THIS CASE, SOUNDINGS OF THE TANKS IN A VESSEL WOULD CONSTITUTE THE EXERCISE OF PROPER DUE DILIGENCE. IN THIS REGARD THE FACTS OF RECORD SHOW THAT SOUNDINGS OF THE NO. 1 DOUBLE BOTTOM TANKS WERE TAKEN ON APRIL 5 DURING THE PERIOD OF HEAVY WEATHER AND ON APRIL 10 AFTER DUMPING THE BALLAST UPON ARRIVAL AT VANCOUVER AND AGAIN ON APRIL 15 WHILE AT PORT IN TACOMA WHEN THE SALT WATER WAS FOUND. WE HAVE BEEN ADVISED BY OFFICIALS OF THE MILITARY SEA TRANSPORTATION SERVICE, DEPARTMENT OF THE NAVY THAT THE PRACTICE OF THE MARITIME INDUSTRY IS THAT SOUNDINGS OF ALL TANKS ON A VESSEL ARE TAKEN AT LEAST ONCE EACH DAY. ORDER TO DETERMINE WHETHER THE REQUIRED DEGREE OF DUE DILIGENCE WAS EXERCISED BY THE VESSEL OWNER AFTER THE EXPERIENCE OF HEAVY WEATHER ON APRIL 5, IT IS REQUESTED THAT OUR OFFICE BE FURNISHED WITH A CHRONOLOGICAL EXTRACT FROM THE LOG OR OTHER REPORT SHOWING THE RESULTS OF THE SOUNDINGS TAKEN OF THE NO. 1 STARBOARD DOUBLE BOTTOM TANKS DAILY FROM APRIL 5 TO APRIL 15. UPON THE FURNISHING OF SUCH INFORMATION FURTHER CONSIDERATION WILL BE GIVEN TO THE ALLOWANCE OF THE CLAIM.

ON THE BASIS OF THE PRESENT RECORD THE DISALLOWANCE ACTION PREVIOUSLY TAKEN IS AFFIRMED UPON REVIEW.