B-156887, JUN. 22, 1965

B-156887: Jun 22, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MAY 18. IN CONNECTION WITH WHICH GENERAL AVERAGE IS CLAIMED. WAS LOADED ABOARD THE S.S. FOR REPAIRS AND THE FAILURE OF THE VESSEL TO MAKE REPAIRS AT PORT ARTHUR AND LAKE CHARLES OCCURRED SUBSEQUENT TO THE TIME AND CARGO IN CONNECTION WITH WHICH GENERAL AVERAGE IS SOUGHT WAS LOADED ABOARD THE VESSEL AT HOUSTON AND STATE "IT MUST THEREFORE BE ASSUMED. THAT AT THE TIME THE CARGO ON WHICH THE CONTRIBUTION IS CLAIMED WAS LOADED ABOARD THE VESSEL. SHE WAS IN ALL RESPECTS SEAWORTHY FOR THE VOYAGE OR INSOFAR AS DUE DILIGENCE COULD MAKE HER.'. THE CONTRACT OF CARRIAGE WAS BETWEEN A PORT OF THE UNITED STATES AND A FOREIGN PORT IN FOREIGN TRADE AND HENCE SUBJECT TO THE CARRIAGE OF GOODS BY SEA ACT.

B-156887, JUN. 22, 1965

TO C. A. SPORL AND CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1965, REQUESTING, IN EFFECT, REVIEW OF THE SETTLEMENT CERTIFICATE OF APRIL 23, 1965, OF OUR CLAIMS DIVISION WHICH DISALLOWED YOUR CLAIM (Z-1883940) IN THE AMOUNT OF $233.13 FOR GENERAL AVERAGE CONTRIBUTION ON GOVERNMENT CARGO ON BOARD THE S.S. DEL SANTOS SUBSTANTIALLY FOR THE REASON THAT THE CARRIER HAD NOT ESTABLISHED THE SEAWORTHINESS OF THE VESSEL OR THE EXERCISE OF DUE DILIGENCE TO MAKE IT SO.

THE RECORD SHOWS THAT THE GOVERNMENT CARGO, IN CONNECTION WITH WHICH GENERAL AVERAGE IS CLAIMED, WAS LOADED ABOARD THE S.S. DEL SANTOSAT HOUSTON, TEXAS, FOR SHIPMENT TO GHANA. THEREAFTER, THE VESSEL TOOK ON ADDITIONAL CARGO AT PORT ARTHUR, TEXAS, AND LAKE CHARLES, LOUISIANA, AND WHILE DOCKING AT MOBILE, ALABAMA, ON JANUARY 16, 1961, IT STRUCK EITHER THE DOCK OR A SUBMERGED OBJECT DAMAGING THE VESSEL'S PROPELLER. AFTER COMPLETION OF THE LOADING OF ADDITIONAL CARGO AT NEW ORLEANS, LOUISIANA, AND ON JANUARY 24, 1961, WHILE PROCEEDING ON THE VOYAGE TO AFRICA, EXCESSIVE VIBRATION DEVELOPED AT THE STERN OF THE VESSEL AS A RESULT OF THE DAMAGED PROPELLER. THE VESSEL THEN PROCEEDED TO SAN JUAN, PUERTO RICO, FOR NECESSARY DRY DOCKING AND REPAIRS.

YOU POINT OUT IN YOUR LETTER REQUESTING REVIEW THAT THE ACCIDENT AT MOBILE, AND THE EXCESS VIBRATION OF THE SHIP WHICH RESULTED IN THE DECISION OF THE VESSEL TO PUT INTO THE PORT OF REFUGE, SAN JUAN, FOR REPAIRS AND THE FAILURE OF THE VESSEL TO MAKE REPAIRS AT PORT ARTHUR AND LAKE CHARLES OCCURRED SUBSEQUENT TO THE TIME AND CARGO IN CONNECTION WITH WHICH GENERAL AVERAGE IS SOUGHT WAS LOADED ABOARD THE VESSEL AT HOUSTON AND STATE "IT MUST THEREFORE BE ASSUMED, WITHOUT INFORMATION TO THE CONTRARY, THAT AT THE TIME THE CARGO ON WHICH THE CONTRIBUTION IS CLAIMED WAS LOADED ABOARD THE VESSEL, SHE WAS IN ALL RESPECTS SEAWORTHY FOR THE VOYAGE OR INSOFAR AS DUE DILIGENCE COULD MAKE HER.'

THE CONTRACT OF CARRIAGE WAS BETWEEN A PORT OF THE UNITED STATES AND A FOREIGN PORT IN FOREIGN TRADE AND HENCE SUBJECT TO THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1300. UNDER SUCH ACT, THE CARRIER IS BOUND, BEFORE AND AT THE BEGINNING OF THE VOYAGE, TO EXERCISE DUE DILIGENCE TO MAKE THE SHIP SEAWORTHY, AND TO PROPERLY MAN, EQUIP, AND SUPPLY THE SHIP. U.S.C.A. 1303 (1). THUS, SEAWORTHINESS IN THIS CASE WOULD BE FOR DETERMINATION AT THE TIME THE VOYAGE COMMENCED AT HOUSTON, SINCE SEAWORTHINESS IS ALWAYS DETERMINED AT THE TIME THE F.SUPP. 357 (1952); UNION CARBIDE AND CARBON CORP. V. THE WALTER RALEIGH, 109 F.SUPP. 781 (1953. BUT THERE APPEARS TO BE NO PRESUMPTION OF SEAWORTHINESS OR THAT DUE DILIGENCE HAS BEEN EXERCISED TO MAKE THE SHIP SEAWORTHY. AS STATED BY THE SUPREME COURT IN INTERNATIONAL NAVIGATION CO. V. FARR AND BAILEY MFG. CO., 181 U.S. 218, 226 (1900)

"WE REPEAT, THAT EVEN IF THE LOSS OCCURRED THROUGH THE FAULT OR ERROR IN MANAGEMENT, THE EXEMPTION CANNOT BE AVAILED OF UNLESS THE VESSEL WAS SEAWORTHY WHEN SHE SAILED OR DUE DILIGENCE TO MAKE HER SO HAD BEEN EXERCISED AND IT IS FOR THE OWNER TO ESTABLISH THE EXISTENCE OF ONE OR THE OTHER OF THESE CONDITIONS.'

SUCH A SHOWING IS A CONDITION TO ENTITLEMENT TO GENERAL AVERAGE CONTRIBUTION. SEE PETITION OF RELIANCE MARINE TRANSPORTATION AND CONSTRUCTORS CORP., 206 F.2D 240 (1953); MCALLISTER LIGHTERAGE LINE, INC. V. INSURANCE COMPANY OF NORTH AMERICA, 143 F.SUPP. 697 (1956); CONNECTICUT ADAMANT PLASTER CO. V. JAMES MCWILLIAMS BLUE LINE, 149 F.SUPP. 122 (1957). AND THE BURDEN OF PROOF AS TO THE SEAWORTHINESS OF THE VESSEL AT THE TIME OF SAILING IS ON THE OWNER. THE SOUTHWARK, 191 U.S. 1 (1903); UNITED STATES V. LOS ANGELES SOAP CO., 83 F.2D 875 (1936); GLOBE AND RUTGERS FIRE INSURANCE CO. V. UNITED STATES, 105 F.2D 160 (1939); STANDARD OIL CO. V. ANGLO-MEXICAN PETROLEUM CORP., 112 F.SUPP. 630 (1953).

THE PRESENT RECORD DOES NOT CONTAIN ANY EVIDENCE THAT THE VESSEL WAS SEAWORTHY AT TIME OF SAILING FROM HOUSTON, NOR DOES IT DISCLOSE THAT DUE DILIGENCE WAS EXERCISED TO MAKE IT SO. IN THE ABSENCE OF SUCH EVIDENCE OR SHOWING OF EXERCISE OF DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY AT HOUSTON, WE HAVE NO RECOURSE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM FOR $233.13.