B-103278, JUNE 11, 1951, 30 COMP. GEN. 503

B-103278, JUNE 11, 1951, 30 COMP. GEN. 503

PROPERTY - PUBLIC - DAMAGE IN TRANSIT - "PERILS OF THE SEA" DAMAGE TO GOVERNMENT CARGO WHICH WAS CAUSED BY VESSEL EQUIPMENT WHICH HAD TORN LOOSE DURING A STORM MAY NOT BE ATTRIBUTED TO A "PERIL OF THE SEA" SO AS TO RELIEVE THE CARRIER OF LIABILITY WHERE IT IS NOT SHOWN THAT THE WEATHER ENCOUNTERED WAS SO UNUSUAL OR SO SEVERE AS TO BE CONSIDERED AS UNFORESEEABLE OR NOT REASONABLY TO BE EXPECTED AT THE PLACE AND ON THE DATE OF THE STORM.

COMPTROLLER GENERAL WARREN TO THE PUBLIC PRINTER, JUNE 11, 1951:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1951, REQUESTING TO BE ADVISED WHETHER, IN THE OPINION OF THIS OFFICE, THE ISTHMIAN STEAMSHIP COMPANY IS RESPONSIBLE FOR THE DAMAGES INVOLVED IN A SHIPMENT OF 171 ROLLS OF NEWSPRINT.

IT IS STATED IN YOUR LETTER THAT 171 ROLLS OF NEWSPRINT WERE PURCHASED FROM THE CROWN ZELLERBACH CORPORATION, F.O.B. WEST LINN, OREGON, AND THAT THE GOVERNMENT PRINTING OFFICE FURNISHED A GOVERNMENT BILL OF LADING FOR SHIPMENT OF THE PAPER BY THE ISTHMIAN STEAMSHIP COMPANY ABOARD THE S.S. ANNISTON CITY TO BALTIMORE, MARYLAND, THENCE BY RAILROAD TO WASHINGTON, D.C. UPON ARRIVAL IN BALTIMORE, MARYLAND, 15 OF THE ROLLS WERE FOUND TO HAVE BURST AND WERE WET AND, THEREFORE, WERE NOT ACCEPTED BY THE GOVERNMENT.

IN REGARD TO THE REJECTION OF THE SAID 15 ROLLS OF NEWSPRINT THE ISTHMIAN STEAMSHIP COMPANY, BY LETTER OF MARCH 23, 1951, ALLEGED, IN EFFECT, THAT THE DAMAGE WAS CAUSED BY HEAVY WEATHER ENCOUNTERED DURING THE VOYAGE AND, CONSEQUENTLY, SUCH DAMAGE WAS THE RESULT OF "PERILS OF THE SEA" FOR WHICH THE SHIP IS NOT LIABLE, AND ADVISED THAT ANY CLAIM MADE ON ACCOUNT OF SUCH DAMAGE WOULD BE DENIED.

THE SHIP'S LOG, ON THE DATE SUCH DAMAGE IS PRESUMED TO HAVE BEEN SUSTAINED, SHOWS THE WIND RANGED FROM 7 TO 10 ON THE BEAUFORT SCALE AND THE SEA FORCE RANGED FROM 8 TO 9 ON THE NORWEGIAN SCALE, AND BASED ON ENTRIES IN SUCH LOG, THERE HAS BEEN FURNISHED THE FOLLOWING ACCOUNT OF THE VOYAGE:

ON FEBRUARY 22, 1951, IN LATITUDE 35 DEGREES 50 MINUTES N., LONGITUDE 74 DEGREES 22 MINUTES W., THE S.S.' ANNISTON CITY" ENCOUNTERED HEAVY WEATHER WHICH LASTED FOR SEVERAL DAYS. THE DECKS WERE AWASH DURING MUCH OF THE PERIOD, AND THERE WERE 3 DAYS OF NORTHWEST GALES. ON THIS PARTICULAR DATE THE VESSEL SHIPPED A HEAVY SEA OVER THE BOAT DECK WHICH CARRIED AWAY THE NO. 2 AND NO. 4 LIFEBOATS AND DAVITS, THE GALLEY STOCK, THE GUN LOCKER, THE BOAT DECK RAILS, THE FIRE HOSE BOXES, THE BOAT FALL REELS, THE CREW MESS VENTILATOR, AND A HEAVY WORK BENCH; THIS DEBRIS SKIDDED ACROSS THE NO. 4 HATCH, RIPPING THE TARPAULINS. THE AFTER DAVIT OF NO. 4 LIFEBOAT STRUCK THE NO. 4 HOLD VENTILATOR, CAUSING CONSIDERABLE DAMAGE AND ADMITTING WATER TO THE CARGO BELOW.

APPARENTLY THE ISTHMIAN STEAMSHIP COMPANY DENIES LIABILITY FOR SUCH DAMAGE ON THE BASIS OF THE PROVISIONS OF SECTION 192 OF U.S.C. TITLE 46, WHICH SECTION READS AS FOLLOWS:

IF THE OWNER OF ANY VESSEL TRANSPORTING MERCHANDISE OR PROPERTY TO OR FROM ANY PORT IN THE UNITED STATES OF AMERICA SHALL EXERCISE DUE DILIGENCE TO MAKE THE VESSEL IN ALL RESPECTS SEAWORTHY AND PROPERLY MANNED, EQUIPPED, AND SUPPLIED, NEITHER THE VESSEL, HER OWNER OR OWNERS, AGENT, OR CHARTERERS, SHALL BECOME OR BE HELD RESPONSIBLE FOR DAMAGE OR LOSS RESULTING FROM FAULTS OR ERRORS IN NAVIGATION OR IN THE MANAGEMENT OF SAID VESSEL NOR SHALL THE VESSEL, HER OWNER OR OWNERS, CHARTERERS, AGENT, OR MASTER BE HELD LIABLE FOR LEASES ARISING FROM DANGERS OF THE SEA OR OTHER NAVIGABLE WATERS * * *.

THE AUTHORITIES APPEAR TO BE IN AGREEMENT THAT NOT ALL STORMS CONSTITUTE "PERIL OF THE SEA.' IN THE CASE OF THE JOSEPHINE, 49 F.2D 207, IT IS STATED "A STORM MAY OR MAY NOT BE SUCH A PERIL. THE TEST, HOWEVER, SEEMS TO BE * * * THAT WHEN A STORM IS OF SUCH UNUSUAL VIOLENCE THAT IT CANNOT REASONABLY BE ANTICIPATED AND AVOIDED OR CANNOT BE RESISTED BY ORDINARY EXERTIONS OF SKILL AND PRUDENCE AND WHEN IT HAS CAUSED UNUSUAL AND UNEXPECTED DAMAGE TO THE HULL OF A SEAWORTHY VESSEL RESULTING IN DAMAGE TO HER CARGO, THE LOSS MAY FAIRLY BE ATTRIBUTED TO A PERIL OF THE SEA * * *.' ALSO, IN THE EDITH, 10 F.2D 684, THE COURT RECEIVED TESTIMONY THAT ON THE DATE OF THE STORM THERE OCCURRED "A STRONG EASTERLY GALE, THE SEAS COMING FROM THE EASTWARD AND WASHING OVER THE SHIP VERY HEAVY," AND THE VESSEL UNDERWENT ONE OF THE WORST STORMS IN THE MASTER'S EXPERIENCE. THE COURT WAS ASKED TO INFER THAT THE COVERING OF A HATCH WAS TORN AWAY BY WHAT IS TECHNICALLY CALLED "PERIL OF THE SEA.' HOWEVER, THE FACTS SHOWED THAT THE PHYSICAL INJURY TO THE SHIP WAS VERY LIGHT, THAT NOTHING WAS BROKEN AND NO STRUCTURAL INJURY WAS RECEIVED BY THE VESSEL. IT WAS HELD THAT " THE EDITH DID NOT ENCOUNTER ANY STORM OF THAT EXTREME VIOLENCE WHICH HAS LONG BEEN COUNTED AS EXCUSING PERIL OF THE SEA FOR A SHIP THOROUGHLY SEAWORTHY, PROPERLY EQUIPPED, AND WELL FOUND.' IN THE CYPRIA, 46 F.1SUPP. 816, AFFIRMED 137 F.2D 326, THE FACTS SHOW THAT THE VESSEL THERE INVOLVED SAILED FROM NEW YORK, FEBRUARY 8, 1940, AND ENCOUNTERED HEAVY WEATHER FROM FEBRUARY 11TH TO 15TH DURING WHICH PERIOD THE WIND RANGED FROM 8 TO 10 ON THE BEAUFORT SCALE AND THE SEA FORCE RANGED FROM 6 TO 8 ON THE NORWEGIAN SCALE. THE LOG ENTRIES INDICATED THAT ON FEBRUARY 12, AT 10 A.M., THE SPEED OF THE VESSEL WAS REDUCED TO DEAD SLOW; MUCH WATER WAS ON DECK AND SOME HAD PENETRATED INTO THE CABINS AND IN THE PROVISION ROOM; TWO PORTHOLES ON THE BOAT DECK WERE KNOCKED IN; AND A LIFEBOAT ON THE AFTER DECK WAS DAMAGED. ON FEBRUARY 13, THE VESSEL LABORED HEAVILY AND SHIPPED LARGE QUANTITIES OF WATER; HER HULL AND STEERING GEAR WERE HEAVILY STRAINED. NEVERTHELESS, IN THAT CASE THE COURT STATED THAT A "WIND FORCE OF 8 TO 10 ON THE BEAUFORT SCALE ACCOMPANIED BY SEAS OF THE FORCE OF 6-8 ON THE NORWEGIAN SCALE ARE NOT EXTRAORDINARY IN WINTER CROSSINGS OF THE ATLANTIC. IT IS NOT A STORM OF SUCH EXTREME VIOLENCE AS TO BE CLASSIFIED AS A PERIL OF THE SEA. THE ROSALIA, 2 CIR., 264 F. 285; THE EDITH, 2 CIR., F.2D 684; THE EMILIA, D.C., 13 F.1SUPP. IT WAS A SEVERE STORM BUT NOTHING "CATASTROPHIC" OR EXTREME ABOUT IT. THE CYPRIA WAS NOT SUBJECTED TO HEAVY BATTERING IN ABNORMAL WIND AND SEA. ASIDE FROM SOME MINOR DAMAGE ON DECK, THERE WAS NO DAMAGE EXCEPT TO RIVETS WHICH WERE TOO WEAK TO STAND THE STRAIN," AND IT WAS HELD THAT THE DAMAGE TO THE CARGO WAS NOT DUE TO A "PERIL OF THE SEA.'

THE ENTRY IN THE LOG OF THE S.S. ANNISTON CITY, DATED FEBRUARY 22, 1951, INDICATES THAT THE VESSEL SUFFERED LITTLE IF ANY STRUCTURAL DAMAGE AS A RESULT OF THE HEAVY WEATHER ENCOUNTERED, BUT, RATHER, INDICATES THAT ANY DAMAGE THAT MAY HAVE BEEN SUSTAINED BY THE VESSEL WAS CAUSED BY THE EQUIPMENT WHICH WAS TORN LOOSE AND SKIDDED INTO NO. 4 VENTILATOR, PERMITTING WATER TO REACH THE CARGO BELOW. IN VIEW OF THE FOREGOING IT IS CLEAR THAT THE ISTHMIAN STEAMSHIP COMPANY HAS NOT ESTABLISHED THAT THE HEAVY WEATHER ENCOUNTERED BY THE S.S. ANNISTON CITY WAS SO UNUSUAL OR SO SEVERE AS TO BE CONSIDERED AS UNFORESEEABLE OR NOT REASONABLY TO BE EXPECTED. NOR DOES THE RECORD ESTABLISH THAT THE ARTICLES CARRIED AWAY BY THE STORM AND WHICH SKIDDED INTO THE VENTILATOR WERE SECURED IN SUCH A MANNER AS TO WITHSTAND A STORM SUCH AS MIGHT REASONABLY BE EXPECTED AT THE PLACE AND ON THE DATE OF THE STORM. IN THIS CONNECTION SEE THE ROSALIA, 264 F. 285, WHEREIN IT IS STATED THAT "IT IS THE DUTY OF THE CARRIER * * * AFFIRMATIVELY TO SHOW THAT THE DAMAGE AROSE FROM AN EXCEPTED PERIL; IF THE MATTER REMAINS DOUBTFUL, THE CARRIER IS NOT EXCUSED * * * AND THIS IS TRUE, WHETHER THE DOUBT EXIST AS TO THE NATURE OF THE INJURIOUS OCCURRENCE OR THE SUFFICIENCY OF THE CAUSE ASSIGNED.'

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, YOU ARE ADVISED THAT IT MUST BE HELD THAT THE ISTHMIAN STEAMSHIP COMPANY IS LIABLE FOR DAMAGES INVOLVED. CF. 10 COMP. GEN. 447; 13 ID. 385; AND 26 ID. 242.