B-152217, NOV. 15, 1963

B-152217, NOV. 15, 1963

TO JOHNSON AND HIGGINS OF CALIFORNIA:

YOUR LETTER OF JULY 24, 1963, YOUR FILE NO. 5600-2, REQUESTS RECONSIDERATION OF OUR SETTLEMENT CERTIFICATE DATED JULY 19, 1963, CLAIM NO. Z-2231748, DISALLOWING YOUR CLAIM FOR GENERAL AVERAGE CONTRIBUTION FROM THE GOVERNMENT IN THE AMOUNT OF $805.14 ON ACCOUNT OF THE SHIPMENT OF LAUNCHES BY THE U.S. COAST GUARD ON THE SS.'W. H. PEABODY" TO COVER THE GOVERNMENT'S SHARE OF EXPENSES INCIDENT TO REPAIR OF DAMAGES DISCOVERED ON SEPTEMBER 6, 1961, AT LOS ANGELES, CALIFORNIA.

THE RECORD BEFORE OUR OFFICE INDICATES THAT THE SHIPMENT IN QUESTION WAS LOADED ABOARD THE VESSEL AT BALTIMORE, MARYLAND, BETWEEN AUGUST 10 AND 15, 1961, FOR SHIPMENT TO ALAMEDA, CALIFORNIA. EN ROUTE, THE VESSEL DOCKED AT LOS ANGELES, CALIFORNIA, ON SEPTEMBER 2, 1961, TO DISCHARGE CARGO DESTINED FOR THAT PORT. WHILE STILL AT LOS ANGELES, AN INSPECTION OF THE VESSEL ON SEPTEMBER 6, 1961, BY THE MASTER, CHIEF ENGINEER, AND CHIEF MATE DISCLOSED A CRACK ON THE RUDDER BLADE BELOW THE RUDDER STOCK. THE VESSEL WAS DRYDOCKED, THE RUDDER AND APPURTENANT PARTS WERE FOUND TO BE BADLY DAMAGED, AND THE REPAIRS IN QUESTION WERE UNDERTAKEN.

YOUR STATEMENT OF GENERAL AND PARTICULAR AVERAGE IN THIS CASE STATES THAT THE VESSEL HAD ENCOUNTERED HEAVY WEATHER IN OCTOBER AND NOVEMBER OF 1960 DURING A PREVIOUS VOYAGE TO MADRAS, INDIA, AND ATTRIBUTES THE DAMAGE TO THE RUDDER THERETO. HENCE, THE DAMAGE WAS IN EXISTENCE AT THE TIME THE GOVERNMENT'S CARGO WAS LOADED AT BALTIMORE, RENDERING THE SHIP UNSEAWORTHY AT THAT TIME. IT NECESSARILY FOLLOWS THAT THE GOVERNMENT IS NOT LIABLE FOR CONTRIBUTION IN GENERAL AVERAGE UNLESS IT CAN BE SHOWN THAT THE SHIPOWNERS HAD EXERCISED DUE DILIGENCE TO MAKE THE SHIP SEAWORTHY AT THE START OF THAT VOYAGE. IT IS WELL-SETTLED THAT THE BURDEN OF PROOF THAT DUE DILIGENCE WAS EXERCISED TO MAKE THE VESSEL SEAWORTHY IS UPON THE PERSON CLAIMING THE BENEFIT THEREOF.

THE ONLY EVIDENCE YOU HAVE PRESENTED IN SUPPORT OF YOUR CONTENTION THAT THE SHIPOWNERS HAD EXERCISED DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY AT THE BEGINNING OF THE VOYAGE HERE INVOLVED CONSISTS OF STATEMENTS IN YOUR LETTER OF JULY 24, 1963, THAT A SEAWORTHY CERTIFICATE WAS GRANTED IN 1960 UPON COMPLETION OF DECK PLATE REPAIRS FOLLOWING THE HEAVY WEATHER ENCOUNTERED ON THE VOYAGE TO MADRAS; THAT AN ANNUAL SURVEY OF THE VESSEL WAS MADE AT BALTIMORE, MARYLAND, ON MARCH 1, 1961, AS THE VESSEL LAY AFLOAT AND THE AMERICAN BUREAU OF SHIPPING REPORT THEREON STATES:

" "ALL PARTS OF STEERING ARRANGEMENTS INCLUDING THE GEAR, QUADRANTS, TILLER, TELEMOTOR AND OTHER TRANSMISSION GEAR AND BRAKES WERE EXAMINED AND FOUND IN SATISFACTORY CONDITION.'"

AND THAT THERE HAD BEEN NO REPORTED MALFUNCTION OF THE RUDDER AND STEERING ARRANGEMENTS PRIOR TO DISCOVERY OF THE RUDDER DAMAGE ON SEPTEMBER 6, 1961, BY THE MASTER; TOGETHER WITH A STATEMENT SIGNED BY THE MASTER TO THE EFFECT THAT IT IS HIS CUSTOMARY PRACTICE TO CHECK THE VISIBLE RUDDER, PROPELLER AND HULL SURFACES UPON DOCKING AND THAT NO DEFECTS HAD BEEN NOTICED PRIOR TO SEPTEMBER 6. 1961.

IN THIS CONNECTION, IT IS STATED IN 80 C.J.S. SHIPPING SECTION 127C THAT:

"THE REQUISITE DILIGENCE MUST BE EXERCISED IN ALL RESPECTS NECESSARY TO MAKE THE SHIP IN FACT SEAWORTHY AT THE BEGINNING OF HER VOYAGE, AND AN INEFFECTUAL PRACTICE FURNISHES NO EXCUSE FOR OMISSION TO USE ALL REASONABLE PRECAUTIONS. IT IS NOT SUFFICIENT TO PROVIDE HER WITH PROPER STRUCTURES AND EQUIPMENT, BUT DUE DILIGENCE MUST ALSO BE EXERCISED BY THE OWNER'S SERVANTS IN THE USE OF SUCH EQUIPMENT BEFORE AND UP TO THE TIME OF THE BEGINNING OF THE VOYAGE, AS BY MAKING SUCH INSPECTION AS CIRCUMSTANCES MAY REQUIRE AND EFFECTING NECESSARY REPAIRS AND THE UNDERTAKING AS TO SEAWORTHINESS IS NOT DISCHARGED WHEN WANT OF FITNESS IS THE RESULT EITHER OF LACHES OR OF A LATENT DEFECT DISCOVERABLE BY THE USE OF DUE DILIGENCE.

"THE DUTY OF THE SHIPOWNER TO EXERCISE DUE DILIGENCE TO RENDER THE SHIP SEAWORTHY IS NONDELEGABLE; IT IS A PERSONAL DUTY TO SEE THAT THE SHIP IS SEAWORTHY WHEN SHE STARTS ON THE VOYAGE, AND THE OWNER MUST KNOW THAT THOSE WHOM HE EMPLOYES TO ACT USE DUE DILIGENCE. IN THIS CONNECTION IT HAS BEEN POINTED OUT THAT FAILURE OF THE OWNER'S AGENTS IN RESPECT OF THE EXERCISE OF DILIGENCE IS LEGALLY ATTRIBUTABLE TO HIM, AND THAT THE MERE SELECTION OF COMPETENT AGENTS FOR SUCH PURPOSES IS INSUFFICIENT TO SHOW DILIGENCE BY THE OWNER. THE DUE DILIGENCE AS TO MAKING THE VESSEL SEAWORTHY MUST IN FACT BE EXERCISED BY THE AGENTS SELECTED, AND SHOULD BE OF A CHARACTER ADEQUATE TO ACCOMPLISH THE RESULT INTENDED.

"PROCURING CERTIFICATES OF SEAWORTHINESS DOES NOT SHOW EXERCISE OF DUE DILIGENCE.'

ALSO, IT IS STATED IN 80 C.J.S. SHIPPING SECTION 156 THAT:

"ALL OF THE SURROUNDING FACTS AND CIRCUMSTANCES ARE TO BE CONSIDERED IN DETERMINING WHETHER OR NOT THE CARRIER EXERCISED DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY, AND VISUAL INSPECTION, INSPECTION OF THE HULL AND MACHINERY OF THE VESSEL, OR DILIGENCE IN THE ACQUISITION OF SEAWORTHINESS CERTIFICATES, IS NOT CONCLUSIVE AS TO THE FULFILLMENT OF ITS DUTY BY THE CARRIER. WHERE THE BURDEN IS ON THE CARRIER TO ESTABLISH DUE DILIGENCE, DOUBTS MUST BE RESOLVED AGAINST IT, AND THE CARRIER'S UNCONTRADICTED TESTIMONY IS NOT CONCLUSIVE. THE BURDEN OF SHOWING DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY IS NOT SUSTAINED BY EVIDENCE OF A SUPERFICIAL INSPECTION, OR BY EVIDENCE SO INDEFINITE THAT IT IS IMPOSSIBLE TO SAY THAT ANY REAL INSPECTION HAS BEEN MADE, OR BY EVIDENCE THAT COMPETENT MEN WERE EMPLOYED TO DO THE WORK, AND THE ESTABLISHMENT OF DUE DILIGENCE IS NOT LEFT TO PRESUMPTION.'

HENCE, IN THE ABSENCE OF A DETAILED DESCRIPTION OF THE NATURE AND EXTENT OF THE ANNUAL SURVEY CONDUCTED AT BALTIMORE, FROM WHICH WE MAY DETERMINE FOR OURSELVES WHETHER SUCH SURVEY CONSTITUTED THE EXERCISE OF DUE DILIGENCE TO MAKE THE VESSEL SEAWORTHY, TOGETHER WITH AN EXPLANATION AS TO WHY SUCH A SURVEY, IF DILIGENTLY CONDUCTED, FAILED TO DETECT DAMAGE SUFFICIENTLY VISIBLE TO BE DETECTED BY A SUBSEQUENT VISUAL CHECK CONDUCTED BY THE MASTER, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE PRIOR DISALLOWANCE OF YOUR CLAIM.