B-128488, SEP. 6, 1957

B-128488, SEP. 6, 1957

TO HONORABLE YOUSEF EL-HAKIM:

YOUR LETTER OF JUNE 29, 1957, FORWARDED TO THIS OFFICE THROUGH THE DEPARTMENT OF STATE REQUESTS RECONSIDERATION OF OUR DECISION OF MARCH 11, 1957, SUSTAINED DISALLOWANCE OF THE CLAIM OF MRS. HAKIM FOR 20,000 SYRIAN POUNDS AS RENT FOR THE PERIOD BEGINNING JULY 1, 1952, AND ENDING OCTOBER 1, 1953, FOR CERTAIN PREMISES FORMERLY OCCUPIED BY THE UNITED STATES INFORMATION AND EDUCATION SERVICE UNDER LEASE NO. S-148 FA-22, DATED JULY 15, 1950.

YOU CONTEND, IN EFFECT, THAT THERE WAS NEGLIGENCE ON THE PART OF THE LESSEE IN LEAVING THE DOOR OPEN AND IN FAILING TO MAINTAIN A SPECIAL NIGHT GUARD. THEREFORE, IT APPEARS TO BE YOUR VIEW THAT THE UNITED STATES PROPERLY MAY NOT REFUSE ALLOWANCE OF MRS. HAKIM'S CLAIM. ALSO, YOU DENY THE CORRECTNESS OF CERTAIN FACTS AS ADMINISTRATIVELY REPORTED.

WITH RESPECT TO YOUR ALLEGATION OF NEGLIGENCE, IT SHOULD BE POINTED OUT THAT THERE IS NO REQUIREMENT IN THE LEASE OBLIGATING THE LESSEE TO MAINTAIN A SPECIAL WATCHMAN FOR THE LEASED PREMISES. MOREOVER, THERE IS NO REQUIREMENT OR OBLIGATION ON THE PART OF THE LESSEE TO KEEP THE DOORS LOCKED AT ALL TIMES. WHILE IT APPEARS TO BE YOUR VIEW THAT REASONABLE CARE TO PROTECT THE PROPERTY WAS NOT EXERCISED BY THE LESSEE, THE ADMINISTRATIVE OFFICE HAS REPORTED OTHERWISE. ALSO, IT HAS BEEN ADMINISTRATIVELY REPORTED THAT PERIODIC INSPECTIONS SUCH AS MADE BY THE SECURITY GUARD 35 MINUTES PRIOR TO THE BOMBING WAS NORMAL PROCEDURE FOR THE POST.

THE ENTIRE CLAIM RESTS ON THE ASSUMPTION THAT THE BUILDING WOULD NOT HAVE BEEN BOMBED HAD THE PARTICULAR DOOR BEEN LOCKED AND HAD A SPECIAL NIGHT GUARD BEEN STATIONED IN THE BUILDING ON THE NIGHT OF THE BOMBING. SUCH ASSUMPTION DOES NOT AFFORD A SUFFICIENT BASIS FOR HOLDING THE UNITED STATES LIABLE FOR THE RENTAL CLAIMED, PARTICULARLY IN THE ABSENCE OF ANY PROVISION IN THE LEASE IMPOSING SUCH DUTIES UPON THE LESSEE. YOU DENY THE EXTENT OF THE DAMAGE AS ADMINISTRATIVELY REPORTED AND YOU CONTEND THAT THE CONDITION OF THE BUILDING DID NOT PREVENT THE RETURN OF THE KEYS. AS TO SUCH CONTENTION, IT MAY BE STATED AGAIN THAT IT IS A WELL-ESTABLISHED RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT, IN CASES OF DISPUTED QUESTIONS OF FACT, TO ACCEPT THE FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. THERE IS NO EVIDENCE IN THE RECORD HERE WHICH WOULD JUSTIFY THIS OFFICE IN DISREGARDING THE FACTS AS ADMINISTRATIVELY REPORTED. THERE APPEARS TO BE NO DISPUTE THAT THE PREMISES WERE NOT COMPLETELY TENANTABLE FOLLOWING THE BOMBING. FOR EXAMPLE, IN MRS. HAKIM'S LETTER OF DECEMBER 15, 1955, TO OUR OFFICE IT IS STATED THAT THE BOMB DAMAGED A SUBSTANTIAL PART OF THE BUILDING AND IN THE QUOTED EXCERPT IN HER LETTER FROM THE FINDINGS OF THE COURT OF FIRST INSTANCE OF DAMASCUS IT IS STATED THAT THE EXPLOSION CAUSED "EXTENSIVE DAMAGES.' AS WE POINTED OUT IN OUR DECISION OF MARCH 11, 1957, TO MRS. HAKIM, THE ADMINISTRATIVE OFFICE JUSTIFIED THE FAILURE TO RETURN THE KEYS ON THE GROUND THAT THE BUILDING WAS SUBSTANTIALLY DESTROYED AND FOR THE FURTHER REASON THAT THE DOOR LOCKS AND HANDLES WERE STOLEN FROM THE UNDAMAGED PORTION OF THE BUILDING. WE FIND NO BASIS FOR DISAGREEING WITH THE ADMINISTRATIVE CONCLUSION.

THE FACT THAT YOU OR MRS. HAKIM MAY HAVE BEEN INSTRUCTED TO FILE YOUR CLAIM MAY NOT BE REGARDED AS ANY COMMITMENT TO PAY THE CLAIM; ALSO, SUCH INSTRUCTION WOULD NOT OPERATE TO BIND THE ACCOUNTING OFFICERS OF THE GOVERNMENT PARTICULARLY IN VIEW OF THE ADVERSE ADMINISTRATIVE RECOMMENDATION. IN THIS CONNECTION, THE RECORD HERE SHOWS THAT THROUGHOUT THE CONSIDERATION OF THE CLAIM THE ADMINISTRATIVE OFFICE HAS TAKEN THE POSITION THAT THERE IS NO BASIS FOR PAYMENT OF THE RENTAL CLAIM.

ACCORDINGLY, THE ACTION HERETOFORE TAKEN IN THE MATTER IS AGAIN SUSTAINED.

YOUR EXPRESSION OF ESTEEM IS GREATLY APPRECIATED. PLEASE BE ASSURED THAT IT IS RECIPROCATED. IT IS A MATTER OF REGRET THAT WE ARE COMPELLED TO TAKE UNFAVORABLE ACTION ON THE CLAIM.