B-60045, OCTOBER 9, 1946, 26 COMP. GEN. 242

B-60045, OCTOBER 9, 1946, 26 COMP. GEN. 242

PROPERTY - PUBLIC - LOSS IN TRANSIT - "PERIL OF THE SEA" WHERE A VESSEL TRANSPORTING GOVERNMENT PROPERTY AS DECK CARGO ON THE HIGH SEAS SUFFERED NO SUBSTANTIAL DAMAGE DURING THE VOYAGE AND ENCOUNTERED WEATHER THAT WAS ORDINARILY TO BE EXPECTED AND GUARDED AGAINST ON SUCH A VOYAGE, LOSS OF THE PROPERTY BY WASHING OVERBOARD AT A TIME WHEN THE WIND WAS FORCE "6"--- A "STRONG BREEZE"--- SUCH AS CAUSED A PREVIOUS SHIFTING OF DECK CARGO, MAY NOT BE ATTRIBUTED TO A "PERIL OF THE SEA" RELIEVING THE CARRIER OF LIABILITY FOR SUCH LOSS, BUT, RATHER, IS TO BE REGARDED AS HAVING BEEN OCCASIONED BY FAULTY STOWAGE BY THE CARRIER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE AMERICAN PRESIDENT LINES, LIMITED, OCTOBER 9, 1946:

CONSIDERATION HAS BEEN GIVEN TO YOUR REQUEST FOR REVIEW OF SETTLEMENT CERTIFICATE NO. 241562 1/2, DATED SEPTEMBER 10, 1945, WHICH DISALLOWED YOUR BILL NO. F-1194-A-41 FOR $563.74, WHICH SUM WAS DEDUCTED ON VOUCHER NO. 46085 OF THE DECEMBER 1941 ACCOUNTS OF COMMANDER S. J. BRUNE, NAVY DISBURSING OFFICER, FROM AMOUNTS OTHERWISE DUE ON YOUR BILL NO. F-1194-41 FOR THE TRANSPORTATION OF CERTAIN OTHER NAVAL SUPPLIES FROM NORFOLK, VIRGINIA, TO MANILA, PHILIPPINE ISLANDS, UNDER BILL OF LADING NO. N- 542961, FEBRUARY 18, 1941. THE DEDUCTION WAS OCCASIONED BY THE FACT THAT CRUDE COAL TAR NAPHTHA INCLUDED IN THE SHIPMENT WAS NOT DELIVERED AT MANILA UPON DISCHARGE OF THE CARGO OF THE S.S. PRESIDENT FILLMORE, ABOARD WHICH VESSEL THE SHIPMENT IS SAID TO HAVE LOADED.

IN YOUR REQUEST FOR REVIEW YOU INDICATE THAT THE NAPHTHA WAS LOST AS THE RESULT OF A PERIL OF THE SEA WHILE THE S.S. PRESIDENT FILLMORE WAS EN ROUTE TO MANILA. IN SUPPORT OF THIS ALLEGATION YOU HAVE FURNISHED PHOTOSTAT COPIES OF CERTAIN PORTIONS OF THE SHIP'S DECK LOGS, AND, ALSO, A CERTIFICATE BY "D. C. AUSTIN" WHICH STATES THAT HE WAS THE MASTER OF THE S.S. PRESIDENT FILLMORE DURING HER VOYAGE FROM SAN FRANCISCO, CALIFORNIA, TO MANILA, PHILIPPINE ISLANDS, AND RETURN, MARCH 27, 1941, TO JULY 8, 1941, THAT THAT VESSEL EXPERIENCED EXTREMELY HEAVY WEATHER FOR SEVERAL DAYS OF THE VOYAGE, DURING WHICH THE 15 DRUMS OF COAL TAR NAPHTHA WHICH HAD BEEN "PROPERLY DUNNAGED, STOWED, AND SECURELY LASHED TO DECK" WERE WASHED OVERBOARD "AS EVIDENCED BY THE SHIP'S LOGS.'

THE CERTIFIED STATEMENT OF THE MASTER OF THE S.S. PRESIDENT FILLMORE IS OF LITTLE VALUE AS TENDING TO SHOW THAT THE DRUMS HERE IN QUESTION WERE PROPERLY STOWED AND SECURELY LASHED TO THE DECK. WATERMAN STEAMSHIP CORPORATION V. UNITED STATES SMELTING, REFINING AND MINING COMPANY, 155 F.2D 687, 692.

WITH RESPECT TO THE PHOTOSTAT COPIES OF THE SHIP'S LOGS NONE SHOWS THE EXACT DATE THAT THE 15 DRUMS OF NAPHTHA WERE WASHED OVERBOARD, BUT ACCORDING TO A STATEMENT APPEARING ON THE FACE OF YOUR BILL NO. F-1194 A- 41, THE LOSS OCCURRED ON APRIL 4, 1941. THE COPY OF THE DECK LOG FOR APRIL 4, 1941, SHOWS A WIND FORCE OF "6" FROM 1 A.M. TO 10 P.M., WHILE AT 12 M. THE WIND FORCE IS SHOWN AS ,7.' ACCORDING TO THE BEAUFORT WIND SCALE AS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, SECOND EDITION, A WIND FORCE OF "6" IS KNOWN AS A "STRONG BREEZE" OF 25 TO 31 MILES, AND A WIND FORCE OF "7" IS REFERRED TO AS A MODERATE GALE OF 32 TO 38 MILES. THE LOG FOR APRIL 4, SHOWS FURTHER THAT AN UNKNOWN NUMBER OF DRUMS OF GASOLINE, ASPHALT AND ACETIC ACID WERE LOST OVERBOARD WHILE THE WIND WAS AT FORCE "6," BUT THE VESSEL ITSELF IS NOT SHOWN TO HAVE SUFFERED ANY DAMAGE. IT IS NOTED FROM THE COPIES OF THE DECK LOGS FOR OTHER DAYS THAT DIFFICULTY WITH THE DECK CARGO WAS FIRST EXPERIENCED ON MARCH 31, 1941, AT WHICH TIME THE VESSEL HAD BEEN AT SEA APPROXIMATELY THREE AND ONE -HALF DAYS. THE WIND FORCE WAS "6" AT THAT TIME AND APPARENTLY TROUBLE WITH THE DECK CARGO CONTINUED AT VARIOUS TIMES FROM THAT DATE THROUGH APRIL 10, 1941. ALTHOUGH AT INTERVALS DURING THAT PERIOD THE WIND IS SHOWN TO HAVE BEEN FORCE "8"--- A FRESH GALE--- AND TO HAVE RISEN AT ONE TIME TO FORCE "9"--- A STRONG GALE--- ONLY SLIGHT DAMAGE IS SHOWN TO HAVE OCCURRED TO THE VESSEL, AND NONE TO THE HULL ITSELF.

THE DEFENSE,"PERIL OF THE SEA," IS NOT A MATTER THAT IS SUSCEPTIBLE OF A SATISFACTORY, OR COMPREHENSIVE DEFINITION. IN THE CASE OF THE JOSEPHINE, 49 F.2D 207, 210, 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.' AND IN THE ARAKAN, 11 F.2D 791, IT IS STATED THAT:"JUDGED BY WELL-KNOWN AND USUALLY ADOPTED TESTS, IT MUST FAIL IN THIS CASE, BECAUSE IT IS APPARENT FROM THE EVIDENCE THAT THE WEATHER ENCOUNTERED BY THE VESSEL, IF NOT ACTUALLY ANTICIPATED, CERTAINLY WAS OF A KIND REASONABLY TO HAVE BEEN EXPECTED ON A TRANSPACIFIC VOYAGE, AND HENCE NOT A PERIL OF THE SEA.' IN THE CITY OF KHIOS, 16 F.1SUPP. 923, 924, IT WAS CONTENDED THAT THE DAMAGE WAS DUE TO PERILS OF THE SEA. THE COURT SAID--- "IT WAS REASONABLY TO BE EXPECTED THAT IN THE NORTH ATLANTIC, AT THAT PARTICULAR TIME OF THE YEAR, SEVERE WEATHER WOULD BE ENCOUNTERED. THE LOG RECORDS THAT THERE WAS A WHOLE GALE AT 4 A.M. ON DECEMBER 19, 1933; AND AT 8 A.M. SIMILAR WEATHER PREVAILED, AND THERE WERE SQUALLS OF HURRICANE FORCE. THIS CONTINUED UNTIL NOON, BUT IN THE AFTERNOON THE WEATHER MODERATED" AND "THE VESSEL SUSTAINED NO STRUCTURAL OR OTHER DAMAGE OF ANY CONSEQUENCE.' ACCORDINGLY, IT WAS HELD THERE WAS NO SUFFICIENT SHOWING TO MAKE OUT A CASE OF SEA PERILS. ALSO, IN THE EDITH, 10 F.2D 684, 686, THE FACTS SHOWN THAT A STRONG EASTERLY GALE BLEW, THE SEAS WASHED OVER THE SHIP VERY HEAVILY, 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.'

THE ORDINARY CONTRACT OF A CARRIER INVOLVES AN OBLIGATION ON HIS PART TO USE DUE CARE AND SKILL IN CARRYING THE GOODS, AND,"AS IS EVERYWHERE HELD, AN EXCEPTION, IN THE BILL OF LADING, OF PERILS OF THE SEA OR OTHER SPECIFIED PERILS DOES NOT EXCUSE HIM FROM THAT OBLIGATION, OR EXEMPT HIM FROM LIABILITY FOR LOSS OR DAMAGE FROM ONE OF THOSE PERILS TO WHICH THE NEGLIGENCE OF HIMSELF OR HIS SERVANTS HAS CONTRIBUTED.' FIORITA AND AMOROSO V. CUNARD S.S. CO., 10 F.2D 244. FURTHERMORE,"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.' THE ROSALIA, 264 F. 285. THUS,"WHILE A HEAVY SWELL WHICH CAUSES A VESSEL TO LIST MAY BE A PERIL OF THE SEA, YET

* * * THE LOSS IN QUESTION WAS NOT DUE TO THIS CAUSE ALONE, BUT TO THE LISTING OF THE VESSEL PLUS THE FACT THAT THE STANCHIONS COULD NOT SUPPORT THE WEIGHT TO WHICH, IN THE VERY NATURE OF THINGS, IT MUST HAVE BEEN FORESEEN THEY WOULD BE SUBJECTED. IN SUCH CASE THE LOSS CANNOT BE ATTRIBUTED TO THE SEA PERIL, BUT TO THE FACT THAT SUCH AN ORDINARY EXPERIENCE AS THE LISTING OF THE VESSEL BY A HEAVY SWELL WAS NOT SUFFICIENTLY PROVIDED AGAINST.' THE CARLOS, 237 F. 731.

IT IS APPARENT FROM THE FOREGOING CASES THAT A PERIL OF THE SEA WHICH JUSTIFIES RELIEVING A CARRIER OF LIABILITY FOR LOSS OF CARGO USUALLY CAUSES SUBSTANTIAL DAMAGE TO THE VESSEL BUT EVEN THEN IF THERE HAS BEEN NEGLIGENCE IN STOWING AND SECURING THE CARGO AND SUCH NEGLIGENCE CONTRIBUTES TO THE LOSS OF THE CARGO THE VESSEL IS NOT RELIEVED. ON THE OTHER HAND, IF THERE HAS BEEN NO DAMAGE TO THE VESSEL, OR IF THE DAMAGE WAS SLIGHT, THE PROXIMATE CAUSE OF THE DAMAGE HAS BEEN HELD TO BE THE NEGLIGENCE OF THE CARRIER AND THE VESSEL WAS NOT RELIEVED OF LIABILITY.

IN VIEW OF THE FACT THAT THE S.S. PRESIDENT FILLMORE APPARENTLY DID NOT SUFFER ANY SUBSTANTIAL DAMAGE ON THIS VOYAGE AND THE FACT THAT DIFFICULTY WAS EXPERIENCED WITH SHIFTING OF THE DECK CARGO EARLY IN THE VOYAGE WHEN THE WIND WAS FORCE "6," WHICH WAS ALSO THE FORCE OF THE WIND AT THE TIME THE LOSS HERE CONCERNED IS SAID TO HAVE OCCURRED, IT APPEARS THAT THE LOSS WAS OCCASIONED BY FAULTY STOWAGE OF THE DECK CARGO RATHER THAN BY A PERIL OF THE SEA. MOREOVER, IT HAS NOT BEEN SHOWN THAT THE WEATHER ENCOUNTERED WAS NOT THAT ORDINARILY TO BE EXPECTED AND GUARDED AGAINST ON A VOYAGE FROM SAN FRANCISCO TO MANILA DURING THE LATTER PART OF MARCH AND APRIL 1941. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED.