B-159457, SEP. 22, 1966

B-159457, SEP. 22, 1966

TO AMERICAN-ORIENTAL FAR EAST LINES, INC.:

REFERENCE IS MADE TO THE LETTER OF AUGUST 31, 1966, FROM YOUR ATTORNEY, MR. BENJAMIN ABRAMOWITZ, RELATIVE TO YOUR CLAIM FOR FREIGHT ON CARGO TRANSPORTED ABOARD THE SS. OLGA UNDER GOVERNMENT BILL OF LADING C-1050384, DATED JULY 26, 1965. SUCH CLAIM WAS THE SUBJECT OF OUR DECISION OF AUGUST 23, 1966, B-159457, 46 COMP. GEN. - , TO THE SECRETARY OF DEFENSE, WHICH HELD THAT THE CLAIM WAS NOT ALLOWABLE. YOUR ATTORNEY ASKS FOR CLARIFICATION ON CERTAIN POINTS OF THE DECISION.

IN THE FIRST TWO QUESTIONS HE POINTS OUT THAT THE GOVERNMENT BILL OF LADING SHOWED THE DESTINATION AS BOMBAY, INDIA, BUT STATES THAT THIS DESTINATION WAS THE SUBJECT OF SEVERAL TELEGRAMS AND HE WOULD LIKE TO KNOW THE DESTINATION THE GOVERNMENT NOMINATED. HE ALSO ASKS WHETHER THE MILITARY SEA TRANSPORTATION SERVICE (MSTS) ACTED IN GOOD FAITH IN CONFIRMING THE DESTINATION OF PIRAEUS, GREECE.

THE FACTS AS TO THE INTENDED DESTINATION OF THE CARGO AND THE COMMUNICATIONS BETWEEN THE SHIP (OR ITS MANAGEMENT) AND MSTS RELATIVE THERETO SHOULD BE OF RECORD WITH OR AVAILABLE TO THE CLAIMANT. WE HAVE REPEATEDLY HELD THAT THE BURDEN OF ESTABLISHING THE VALIDITY OF CLAIMS ASSERTED AGAINST THE UNITED STATES IS ON THE CLAIMANT. ACCORDINGLY, ANY SHOWING IN REGARD TO ANY CHANGE IN DESTINATION AUTHORIZED BY MSTS AND WHETHER THE SHIP DELIVERED THE CARGO TO THE CHANGED DESTINATION APPEAR TO BE MATTERS FOR YOU, AS THE CLAIMANT, TO ESTABLISH.

MSTS ADVISES IN THIS RESPECT, HOWEVER, THAT:

"BY TELEGRAM DATED 16 SEPTEMBER 1965, WHICH CONFIRMED PREVIOUS TELEPHONE ADVICE, COMMANDER MILITARY SEA TRANSPORTATION SERVICE, ATLANTIC AREA (COMSTSLANT) ADVISED THE CLAIMANT THAT THE CARGO ORIGINALLY DESTINED FOR BOMBAY SHOULD BE DISCHARGED AT MANILA IF THE SHIP WAS PROCEEDING EASTWARD AFTER BOMBAY, AND PIRAEUS, GREECE, IF THE SHIP WAS PROCEEDING WESTWARD. THE DESTINATION OF ALTERNATE DISCHARGE PORTS WAS NECESSARY AS THE ITINERARY OF THE SHIP SUBSEQUENT TO BOMBAY WAS NOT KNOWN. IF SHE WAS TO CONTINUE TO OTHER PACIFIC PORTS FOR DISCHARGE OF COMMERCIAL CARGO, THEN THE CONVENIENT PORT FOR DISCHARGE WOULD BE MANILA. ON THE OTHER HAND, IF THE SHIP SUBSEQUENT TO BOMBAY WAS TO RETURN VIA THE MEDITERRANEAN TO THE UNITED STATES, THEN PIRAEUS, GREECE, WOULD BE THE MOST CONVENIENT DISCHARGE PORT FOR THE GOVERNMENT CARGO. * * *.'

THERE IS NOTHING IN THE RECORD HERE TO INDICATE ANY LACK OF GOOD FAITH ON THE PART OF MSTS AS TO DESTINATION OF THE CARGO.

IN HIS THIRD QUESTION YOUR ATTORNEY ASKS WHETHER THE PAYMENT OF FREIGHT IS DEPENDENT ON THE RETURN OF OR PAYMENT FOR THE TRACTORS BY THE PAKISTAN GOVERNMENT. AS INDICATED IN OUR DECISION, WHETHER FREIGHT IS EARNED IS PRIMARILY A MATTER FOR DETERMINATION UNDER THE TERMS OF THE CONTRACT OF CARRIAGE. UNDER THE GOVERNMENT BILL OF LADING, WHICH CONSTITUTES THE CONTRACT OF AFFREIGHTMENT, PAYMENT OF FREIGHT IS CONDITIONED UPON DELIVERY OF THE SHIPMENT TO DESTINATION AND WE RELIED UPON THE HOLDING OF THE UNITED STATES SUPREME COURT IN ALCOA STEAMSHIP COMPANY, INC. V. UNITED STATES, 338 U.S. 421, 422 (1949) AND OTHER CASES CITED TO THE SAME EFFECT IN REACHING THAT CONCLUSION. THEREFORE, IT APPEARS THAT FREIGHT IS NOT EARNED UNDER THE CONTRACT OF AFFREIGHTMENT UNLESS AND UNTIL DELIVERY IS ACTUALLY MADE AT BOMBAY OR THE ALTERNATE DESTINATIONS NOMINATED BY MSTS. HOWEVER, IF THE GOVERNMENT WERE SUCCESSFUL IN SECURING THE RELEASE OF THE TRACTORS OR OBTAINING FROM THE PACKISTAN GOVERNMENT THEIR INVOICE VALUE PLUS FREIGHT TO PAKISTAN, SOME QUESTION MIGHT ARISE AS TO WHETHER THE GOVERNMENT DID NOT OR COULD NOT ACCEPT DELIVERY IN PAKISTAN SO AS TO WARRANT PAYMENT OF PRO RATA FREIGHT TO THAT COUNTRY. HOWEVER, SINCE ON THE PRESENT RECORD, IT APPEARS RETURN OF THE TRACTORS OR SETTLEMENT FOR THEIR VALUE HAS NOT BEEN EFFECTED, SUCH POSSIBILITY DOES NOT APPEAR TO AFFECT YOUR PRESENT RIGHTS AS TO PAYMENT OF FREIGHT AND WHETHER OR NOT IT WAS EARNED.

IN YOUR ATTORNEY'S LAST QUESTION HE ASKS "DOES THE FACT THAT THE STATE DEPARTMENT IS NEGOTIATING FOR THE RETURN OF THESE TRACTORS OR PAYMENT OF THE SAME, FULFILL ALL THE CONDITIONS SET FORTH IN THE ACCOMPLISHED BILL OF LADING? " ALSO, HE INDICATES THE BILL OF LADING WAS ACCOMPLISHED ON MARCH 11, 1966.

IT IS OUR VIEW THAT THE STATE DEPARTMENT NEGOTIATIONS HAVE NO BEARING UPON THE EARNING OF THE FREIGHT UNDER THE CONTRACT OF AFFREIGHTMENT. MOREOVER, WE DO NOT BELIEVE THAT GOVERNMENT BILL OF LADING C-1050384 HAS BEEN PROPERLY ACCOMPLISHED. THE BILL TO WHICH YOUR ATTORNEY APPARENTLY REFERS IS A CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF LADING AND NOT THE ORIGINAL BILL OF LADING. THE COPY OF THE ORIGINAL BILL OF LADING INCLUDED IN OUR FILE DOES NOT HAVE THE CONSIGNEE'S CERTIFICATE OF DELIVERY ACCOMPLISHED. AND THE CERTIFICATE OF THE CONSIGNEE ON THE CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF LADING STATES THAT THE PROPERTY WAS RECEIVED EXCEPT AS NOTED ON THE REVERSE THEREOF. THE EXCEPTION TO RECEIPT OF THE PROPERTY ON THE REVERSE READS AS FOLLOWS:

"THIS CARGO WAS NOT DELIVERED TO THE DESTINATION SHOWN ON THE FACE OF THIS GBL, BUT WAS DIVERTED THROUGH NO FAULT OF THE CARRIER TO PAKISTAN. THERE IS NO OUTTURN INFORMATION AVAILABLE AND THEREFORE THIS BILL IS ACCOMPLISHED AS OSOD WAITING FOR SUITABLE INFORMATION REGARDING THE CONDITION OF THE CARGO AT TIME OF DISCHARGE FROM THE VESSEL. THIS ACCOMPLISHMENT IS MADE AT THE AUTHORITY OF MR. WILLIAM KLEIN, OFFICE OF COUNSEL, BLDG T-8, MSTS, WASHINGTON D.C.' (IT IS UNDERSTOOD "OSOD" IS AN ABBREVIATION OF "OVER, SHORT OR DAMAGED.''

IN VIEW OF THE FACT THAT THE PROPERTY HAS NEVER BEEN DELIVERED TO DESTINATION, WE DO NOT VIEW THE NOTATION AS CONSTITUTING A VALID AND PROPER ACCOMPLISHMENT OF THE GOVERNMENT BILL OF LADING.

WE TRUST THAT THE FOREGOING CLARIFIES THE POINTS RAISED IN YOUR ATTORNEY'S LETTER.