B-134791, OCT. 14, 1959

B-134791, OCT. 14, 1959

TO AMERICAN PRESIDENT LINES:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1959, REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF MARCH 6, 1958 (37 COMP. GEN. 583), AFFIRMED JULY 29, 1959 (B-134791), WHICH SUSTAINED THE SETTLEMENT DISALLOWING YOUR CLAIM FOR A REFUND OF $91.51 OF THE TOTAL AMOUNT OF $119.85 WHICH WAS WITHHELD FROM VOUCHER NO. 3364 IN THE APRIL 1957 ACCOUNTS OF J. F. CANNON. THE AMOUNT ($119.85) REPRESENTS THE COST OF REPAIRING A GOVERNMENT-OWNED CHEVROLET STATION WAGON DAMAGED WHILE IN TRANSIT FROM JERSEY CITY, NEW JERSEY, TO MANILA, PHILIPPINE ISLANDS, ABOARD THE S.S. PRESIDENT ARTHUR V/18, UNDER GOVERNMENT BILL OF LADING NO. GS 739434.

THE ARGUMENTS SUBMITTED IN YOUR SEVERAL LETTERS WERE CAREFULLY REVIEWED AND ANALYZED BEFORE WE MADE A DETERMINATION AS TO YOUR LIABILITY IN THIS MATTER. YOUR LETTER OF AUGUST 22, 1959, FAILS TO FURNISH ANY ADDITIONAL EVIDENCE WHICH WAS NOT PREVIOUSLY CONSIDERED. IN VIEW OF THE CONFLICTING STATEMENTS BY THE CONSIGNEE AND THE ARRASTRE SERVICE, AND TO THE EXTENT OF DAMAGE AND LIABILITY THEREFOR, AND IN THE ABSENCE OF ANY CONCLUSIVE PROOF AS TO THE EXTENT OF DAMAGE TO THE AUTOMOBILE AT THE TIME OF ITS DISCHARGE FROM THE VESSEL INTO THE HANDS OF THE MANILA PORT SERVICE, WE HAVE NO RECOURSE OTHER THAN TO DENY YOUR CLAIM FOR REFUND.

IT SHOULD BE STATED, ALSO, THAT EVEN IF YOUR STATEMENT OF THE EXTENT OF DAMAGE FOR WHICH YOU CONCEDE LIABILITY IS CORRECT, THE METHOD YOU USE TO DETERMINE THE MEASURE OF DAMAGES CANNOT BE FULLY VERIFIED. WHILE YOU USE A PRORATION OF THE COST OF REPAIRS TO THREE FENDERS (TWO THIRDS OF $42.50), IT IS POSSIBLE THAT THE MAJOR PORTION OF THE REPAIRS MAY HAVE BEEN FOR THE LEFT FRONT FENDER. FURTHERMORE, THE ESTIMATE GIVEN TO THE VETERANS ADMINISTRATION AT MANILA BY NORTHERN MOTORS, INCORPORATED, CONSISTED OF A COMBINED FIGURE INCLUDING REPAIRS TO FENDERS AND BODY, AMOUNTING TO $105.575. IT IS OBSERVED, ALSO, THAT THE ARRASTRE SERVICE REPORT DATED AUGUST 21, 1956, IS NOT LEGIBLE IN ALL RESPECTS AND CANNOT BE ACCEPTED AS REFLECTING ACCURATELY THE EXTENT OF LOSS OR DAMAGE WHEN THE VEHICLE WAS UNLOADED FROM THE VESSEL.

ACCORDINGLY, ASIDE FROM THE QUESTION OF LAW RESPECTING THE LIABILITY OF THE VESSEL FOR SAFE DELIVERY AND SUCH EXCEPTIONS AS MAY TEND TO EXONERATE THE VESSEL UNDER ORDINARY CIRCUMSTANCES, THE LACK OF CLARITY IN THE DOCUMENTARY RECORD AS TO THE EXACT EXTENT OF DAMAGE MAKES IT NECESSARY THAT WE RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE WHICH CONTRADICTS YOUR POSITION. OUR PRIOR CONCLUSION SUPPORTING THE DETERMINATION OF THE ADMINISTRATIVE OFFICE IS THEREFORE REAFFIRMED.