B-122580, DEC. 30, 1955

B-122580, DEC. 30, 1955

TO FRANCIS C. CARR AND COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 14, NOVEMBER 9 AND DECEMBER 7, 1955, RELATIVE TO OFFICE LETTER DATED OCTOBER 7, 1955, WHICH SUSTAINED THE EXCLUSION OF CERTAIN ITEMS IN YOUR CLAIM IN CONNECTION WITH ADJUSTMENT OF GENERAL AVERAGE INCIDENTS SUSTAINED BY THE S.S. SIMON BENSON WHILE OPERATING UNDER TIME CHARTER NO. DA-45-045 TC-47 BETWEEN THE SEVEN SEAS STEAMSHIP CORPORATION AND THE UNITED STATES OF AMERICA.

SUCH DISALLOWANCE WAS BASED IN PART ON DETERMINATIONS BY BOTH THE DEPARTMENT OF THE NAVY AND OUR OFFICE THAT THE RECORD FAILS TO ESTABLISH THE EXISTENCE OF MACHINERY DAMAGE ATTRIBUTABLE TO STRANDING OF THE S.S. SIMON BENSON IN THE ELBE RIVER ON JANUARY 24, 1950, FOR WHICH THE UNITED STATES WOULD BE OBLIGATED TO CONTRIBUTE IN GENERAL AVERAGE, AND IN PART ON DETERMINATIONS THAT THE EXPENSE OF DRYDOCKING THE DRYDOCKNG WAS ALSO REQUIRED FOR THE OWNER'S CONVENIENCE IN ORDER TO MAINTAIN CLASSIFICATION OF THE VESSEL.

IN YOUR LETTER OF OCTOBER 14, 1955, YOU DISAGREE WITH SUCH DETERMINATIONS AND INVITE ATTENTION TO AN ENTRY AT PAGE 18 OF YOUR STATEMENT OF GENERAL AND PARTICULAR AVERAGE WHICH REFLECTS A CHARGE OF $75.00 BY THE ALABAMA DRY DOCK AND SHIPBUILDING COMPANY FOR REPAIRS DESCRIBED AS:

"4. COUPLING BOLT: REMOVE ONE DAMAGED COUPLING BOLT BY BURNING WHICH WAS FOUND TO HAVE BEEN DAMAGED PRIOR TO REMOVAL OF TAILSHAFT AT THIS TIME. HOLE IN COUPLING TO BE TRUED UP WITH REAMER, NEW TESTED STEEL COUPLING BOLTS TO BE MADE AND FITTED TO PLACE.'

AND TO AN ADJUSTER'S NOTE WHICH REFLECTS YOUR DETERMINATION, AT THE TIME MUCH STATEMENT WAS PREPARED, AS FOLLOWS:

"GENERAL AVERAGE IS CHARGED WITH REPAIRS TO PROPELLER SHAFT AND PROPORTION OF DRYDOCKNG RGES.'

CONSIDERATION WAS GIVEN TO THE ABOVE ENTRIES AT THE TIME OF DISALLOWANCE OF THE INVOLVED ITEMS IN YOUR CLAIM BY CERTIFICATE OF SETTLEMENT ISSUED BY THIS OFFICE ON JUNE 18, 1954, AS WELL AS AT THE TIME OUR LETTER TO YOU DATED OCTOBER 7, 1955, WAS PREPARED. ALSO, NOTED WAS THE ENTRY APPEARING ON PAGE 20 OF YOUR STATEMENT, IN WHICH YOU INDICATE THE OWNERS ADVISED THAT THE REPAIRS TO THE COUPLING BOLT WERE OVERLOOKED AT TIME OF SURVEY BUT THE COST THEREOF HAS BEEN APPROVED BY THE SURVEYOR FOR THE UNDERWRITERS. APPARENTLY YOUR DETERMINATION THAT REPAIRS TO THE COUPLING BELT AROSE OUT OF FREEING THE VESSEL FROM THE STRAND AND WERE THEREFORE CHARGEABLE TO GENERAL AVERAGE WAS BASED ON THE ADVICE REFLECTED BY THIS ENTRY, SINCE NO PORTION OF THE OFFICIAL RECORDS CORROBORATES SUCH ADVICE OR OTHERWISE SUBSTANTIATES YOUR CONCLUSION. ON THE CONTRARY, BOTH THE REPORT AND THE CERTIFICATE ISSUED BY THE SURVEYOR TO THE AMERICAN BUREAU OF SHIPPING AT HAMBURG, GERMANY, ON JANUARY 26, 1950, TRANSCRIPTS OF WHICH APPEAR ON PAGES 8 AND 9 OF YOUR STATEMENT, INDICATE NO APPARENT GROUNDING DAMAGE AND RECOMMEND POSTPONEMENT OF EXAMINATION FOR POSSIBLE DAMAGE UNTIL THE TIME OF THE VESSEL'S NEXT REGULARLY SCHEDULED DRYDOCKING. ADDITIONALLY, THE TRANSCRIPT OF THE REPORT OF SURVEYOR TO THE AMERICAN BUREAU OF SHIPPING, WHICH APPEARS AT PAGE 12 OF YOUR STATEMENT AND IS DATED FIVE DAYS AFTER REPAIRS TO THE VESSEL WERE COMPLETED, FAILS TO MENTION THE NECESSITY FOR REPAIR TO THE COUPLING BELT OR THAT SUCH REPAIR WAS MADE IN CONNECTION WITH THE VESSEL'S STRANDING OR ITS BEING FREED THEREFROM, BUT DOES STATE THAT THE TAIL SHAFT WAS DRAWN ON FEBRUARY 27, 1950, AND WAS CONSIDERED SATISFACTORY. IN THIS CONNECTION, YOUR ATTENTION IS ALSO INVITED TO THE FACT THAT THE RECORD BEFORE THIS OFFICE INDICATES THAT ON OCTOBER 12, 1953, YOU WERE REQUESTED TO FURNISH THE MILITARY SEA TRANSPORTATION SERVICE, DEPARTMENT OF THE NAVY, ANY ADDITIONAL EVIDENCE WHICH MIGHT SUBSTANTIATE YOUR CLAIM THAT ANY OF THE DAMAGE REQUIRING REPAIRS CHARGED TO GENERAL AVERAGE IN YOUR STATEMENT WAS SUSTAINED BY THE S.S. SIMON BENSON IN EXTRICATING HERSELF FROM THE STRAND. YOUR REPLY OF OCTOBER 22, 1953, FAILED TO FURNISH SUCH EVIDENCE.

ACCORDINGLY, IT IS CONCLUDED THAT THE PRESENT RECORD BEFORE THIS OFFICE FAILS TO ESTABLISH THAT ANY OF THE REPAIRS ACCOMPLISHED WHILE THE VESSEL WAS IN DRY DOCK COULD BE ATTRIBUTED TO EXTRICATING THE VESSEL FROM THE STRAND, AND IN THE ABSENCE OF SUCH EVIDENCE IT IS UNNECESSARY AT THIS TIME TO CONSIDER THE QUESTION OF WHETHER IT WAS NECESSARY TO DRY DOCK THE VESSEL IN ORDER TO EFFECTUATE THE REPAIRS TO A COUPLING BOLT ON WHICH YOUR PRESENT CONTENTION OF GENERAL AVERAGE DAMAGE IS BASED.

AS INDICATED IN OUR LETTER TO YOU DATED OCTOBER 7, THE LIABILITY OF THE UNITED STATES FOR CONTRIBUTION IN GENERAL AVERAGE UNDER RULE 7 OF THE YORK -ANTWERP RULES, 1924, AND ARTICLE 19 OF THE CHARTER PARTY IS LIMITED TO THE ACTUAL DAMAGES WHICH THE OWNER IS ABLE TO PROVE HE SUFFERED AS A RESULT IN EFFORTS TO REFLOAT. THE RECORD IN THE INSTANT CASE FAILS TO ESTABLISH THAT THE DAMAGE TO THE COUPLING BOLT RESULTED FROM FREEING THE VESSEL FROM THE STRAND, THAT DRYDOCKING WAS NECESSARY TO EFFECTUATE REPAIRS THERETO, OR THAT THE OWNER SUFFERED ANY MONETARY DAMAGE IN THE EVENT SUCH DRYDOCKING WAS NECESSARY. UNDER THE CIRCUMSTANCES, WE ARE WITHOUT AUTHORITY TO COMMIT THE UNITED STATES TO A LIABILITY WHICH IS NOT SUBSTANTIALLY SUPPORTED BY THE RECORD, AND THE CONCLUSIONS STATED IN OFFICE LETTER DATED OCTOBER 7, 1955, ARE THEREFORE REAFFIRMED.