B-121114, JAN. 28, 1957

B-121114, JAN. 28, 1957

TO KIRLIN, CAMPBELL AND KEATING:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11, 1956, REQUESTING RECONSIDERATION OF OUR DECISION TO YOU OF APRIL 10, 1956, B-121114, DISALLOWING THE CLAIM OF SEATRADERS, INCORPORATED, FOR $212,500 AS UNLIQUIDATED DAMAGES RESULTING FROM THE ALLEGED BREACH BY THE DEPARTMENT OF AGRICULTURE, AS CHARTERER, OF A CHARTER PARTY AGREEMENT DATED NOVEMBER 30, 1951. YOUR LETTER, AND YOUR MEMORANDUM THEREIN REFERRED TO, REQUEST OUR CONSIDERATION OF THE APRIL 10 DECISION UPON THE GROUNDS THAT SINCE GRAIN REPORTEDLY WAS RECEIVED IN GREECE DURING JULY AND AUGUST 1952, IT IS NOT ESTABLISHED THAT CARGO COULD NOT HAVE BEEN MADE AVAILABLE FOR THE THIRD VOYAGE UNDER REQUISITIONS AVAILABLE ON OR SUBSEQUENT TO THE DATE OF THE CHARTER PARTY AGREEMENT, NOVEMBER 30, 1951.

BRIEFLY STATED, THE QUESTION PRESENTED IS WHETHER THERE WAS, IN FACT, NO CARGO AVAILABLE FOR THE THIRD OF FIVE CONSECUTIVE VOYAGES CONTEMPLATED BY THE CHARTER AGREEMENT SO AS TO AUTHORIZE TERMINATION OF THE CHARTER PARTY IN ACCORDANCE WITH CLAUSE "Q" THEREOF. AS STATED IN OUR DECISION OF APRIL 10, WE CANNOT AGREE WITH YOUR CONTENTION THAT THE GOVERNMENT COMMITTED ITSELF UNDER THE CHARTER PARTY TO DO EVERYTHING POSSIBLE TO PROVIDE CARGO. WE CONSTRUE THE CHARTER PARTY AS CONTEMPLATING THAT THE AVAILABILITY OF CARGO WOULD BE DETERMINED BY THE REGULAR COURSE OF THE GOVERNMENT'S ACTIVITIES PURSUANT TO THE MUTUAL SECURITY PROGRAM.

IT APPEARS FROM THE RECORD THAT THE VESSEL WOULD HAVE BEEN TENDERED FOR ITS THIRD VOYAGE IN JULY, 1952. IN ADDITION TO THE SCHEDULE OF SHIPMENTS MADE UNDER REQUISITION NO. 40-0101-00-2042, AS REPORTED BY THE DEPARTMENT OF AGRICULTURE AND INCORPORATED INTO OUR DECISION OF APRIL 10, WE HAVE RECEIVED A REPORT DATED JANUARY 3, 1957, FROM THE ASSISTANT SECRETARY, DEPARTMENT OF AGRICULTURE, WHICH STATES, IN PERTINENT PART, AS FOLLOWS:

"WITH REGARD TO THE SCHEDULING OF GRAIN SHIPMENTS DURING JULY AND AUGUST 1952, NO SHIPMENTS OF WHEAT WERE MADE TO GREECE UNDER REQUISITIONS AFTER THE "CEDAR RAPIDS VICTORY" WAS LOADED AT NEW ORLEANS WITH 1,650 TONS ON JUNE 9, 1952, UNTIL SEPTEMBER 30, 1952, WHEN THE SCHEDULING OF SHIPMENTS UNDER REQUISITION NO. 40-0101-00-2042 WAS BEGUN. YOU HAVE ALREADY BEEN FURNISHED WITH THE SCHEDULE OF SHIPMENTS UNDER THAT REQUISITION. WE ARE ENCLOSING A SCHEDULE SHOWING THE SHIPMENTS DURING MAY AND THE ONE SHIPMENT IN JUNE 1952 WITH THE REQUISITION NUMBERS UNDER WHICH THE SHIPMENTS WERE MADE AND THE EXPECTED ARRIVAL DATES, WHICH WERE FURNISHED BY THE STEAMSHIP COMPANIES AT THE TIME OF LOADING. YOU WILL NOTE THAT THE EXPECTED ARRIVAL DATES FOR TWO OF THE VESSELS WERE IN JULY, ALTHOUGH THEY WERE LOADED ON MAY 26 AND JUNE 9. THE TOTAL CARGOES OF THESE SHIPS WOULD NOT EQUAL ONE FOR SEATRADERS. IT IS POSSIBLE, OF COURSE, THAT SOME OF THE OTHER VESSELS WERE DELAYED IN ARRIVAL AND DID NOT REACH THE GREEK PORTS UNTIL JULY OR AUGUST, AS ALLEGED BY THE CLAIMANT, BUT WE HAVE NO INFORMATION AS TO THE ACTUAL ARRIVAL DATES.

"IT IS ALSO POSSIBLE THAT SHIPMENTS OF WHEAT FROM THE UNITED STATES WERE MADE TO GREECE DURING THE PERIOD BY OTHER PARTIES. SUCH SHIPMENTS APPEAR TO BE DOUBTFUL, HOWEVER, SINCE DTA ORDER NO. 2 WAS IN EFFECT DURING THE PERIOD AND THIS ORDER REQUIRED THAT AN EXPORT PERMIT BE OBTAINED BEFORE ANY EXPORT MOVEMENTS OF GRAIN TOOK PLACE.

"FROM AN EXAMINATION OF THE LISTINGS OF THE EXPORT PERMITS, IT APPEARS THAT THE ONLY PERMITS ISSUED FOR EXPORTATION OF GRAIN TO GREECE BETWEEN MAY 21, 1952, AND SEPTEMBER 9, 1952, WERE NO. 4712-G-19 W-666, ISSUED JUNE 2, 1952, WITH EXPIRATION DATE JUNE 25, 1952, FOR THE "CEDAR RAPIDS VICTORY," AND NOS. 5388-G-22-W-9910 AND 5389-G-21-W 9910, BOTH ISSUED SEPTEMBER 9, 1952, FOR THE ,SYLVIA LYKES," LATER CHANGED TO THE "JOHN LYKES" AND THE "SUNION" RESPECTIVELY. THE WHEAT FOR THE "CEDAR RAPIDS VICTORY" WAS, AS STATED ABOVE, LIFTED ON JUNE 9, 1952, THAT FOR THE "SUNION" ON SEPTEMBER 30, 1952, AND THAT FOR THE "JOHN LYKES" ON OCTOBER 9 AND 16, 1952.'

ENCLOSED FOR YOUR INFORMATION IS A COPY OF THE REFERRED TO SCHEDULE OF SHIPMENTS DURING MAY AND JUNE 1952.

ACCORDINGLY, INASMUCH AS THE SCHEDULES OF SHIPMENTS OF GRAIN TO GREECE FROM GULF PORTS BEGINNING WITH THE MONTH OF MAY 1952, CLEARLY ESTABLISHES THE ABSENCE OF AVAILABLE CARGO FOR THE THIRD VOYAGE CONTEMPLATED BY THE CHARTER PARTY AGREEMENT, AND SINCE CLAUSE "Q" OF THE CHARTER PARTY AGREEMENT IS CONSTRUED AS CONTEMPLATING THAT EVENTUALITY AS A PROPER BASIS FOR TERMINATION OF THE CHARTER (INCLUDING ANY REMAINING VOYAGES THEREUNDER), THE CONCLUSION IN OUR DECISION OF APRIL 10, THAT THERE IS NO LEGAL BASIS UPON WHICH THE CLAIM MAY BE ALLOWED IS AFFIRMED.