B-155480, FEB. 9, 1965

B-155480, FEB. 9, 1965

TO ATLAS DYNAMICS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1965, REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 2, 1964, SUSTAINING OUR EARLIER DISALLOWANCE OF YOUR CLAIM FOR REFUND OF $901.97 PAID FOR CERTAIN SURPLUS PROPERTY.

YOU NOW CONTEND THAT WHILE THE GOVERNMENT RECOGNIZED YOU AS ASSIGNEE OF HELICOPTER INDUSTRIES, INC., AND ACCEPTED PAYMENT FROM YOU OF THE BALANCE DUE FROM YOUR ASSIGNOR UNDER ITS CONTRACT WITH THE GOVERNMENT, THE PROPERTY WHICH WAS THE SUBJECT OF THE SALE WAS WRONGFULLY DELIVERED TO HELICOPTER INDUSTRIES, INC. YOUR CONTENTION IS APPARENTLY BASED UPON THE FACT THAT BECAUSE THE BILL OF LADING PREPARED BY A GOVERNMENT EMPLOYEE LISTED HELICOPTER INDUSTRIES, INC., AS THE SHIPPER OF THE PROPERTY, DELIVERY TO THE COMMON CARRIER WAS TANTAMOUNT TO DELIVERY TO HELICOPTER INDUSTRIES.

WHILE "DELIVERY" OF THE PROPERTY TO THE PURCHASER WAS AN ESSENTIAL ELEMENT, INSOFAR AS ,DELIVERY" DENOTES CHANGE OF POSSESSION, IN COMPLETING THE SALE, WHETHER DELIVERY WAS ACCOMPLISHED IN ACCORDANCE WITH THE TERMS OF THE SALES CONTRACT MUST BE DETERMINED FROM THE TERMS AND CONDITIONS OF THE INVITATION INSOFAR AS PROVIDED FOR THEREIN. SINCE THE APPLICABLE PROVISIONS OF THE INVITATION WERE QUOTED IN OUR EARLIER DECISION, THEY WILL BE REFERRED TO HEREIN ONLY IN SUBSTANCE AND EFFECT. IT IS PROVIDED IN THE INVITATION THAT DELIVERY SHALL BE MADE F.O.B. CONVEYANCE AT THE LOCATION OF THE PROPERTY WHEN SOLD, AND THAT REMOVAL SHALL BE AT THE PURCHASER'S EXPENSE. IT IS ALSO PROVIDED THAT WHEN THE CARRIER IS TO BE OTHER THAN THAT OF THE PURCHASER, THE PURCHASER SHALL DESIGNATE SUCH OTHER CARRIER AND SHALL FURNISH A BILL OF LADING. IN ADDITION TO AFFIRMATIVELY DEFINING THE PURCHASER'S RESPONSIBILITIES WITH RESPECT TO DELIVERY AND REMOVAL OF THE PROPERTY, THE INVITATION EXPLICITLY NEGATES THE GOVERNMENT'S RESPONSIBILITY IN THESE RESPECTS, EXCEPT TO THE EXTENT OF SCHEDULING RELEASE OF THE PROPERTY. IT IS CLEAR, THEREFORE, THAT ANY ACTS OF GOVERNMENT EMPLOYEES WITH RESPECT TO ENGAGING A CARRIER AND PREPARING A BILL OF LADING WERE OUTSIDE THE BOUNDS OF HIS AUTHORITY, EITHER ACTUAL OR APPARENT, AND NOT THE ACTS OF, AND IN NO WAY BINDING ON, THE UNITED STATES. IN ANY EVENT, SINCE THE PROPERTY WAS RELEASED TO A COMMON CARRIER AT THE DESIGNATED LOCATION AND WAS CONSIGNED AS SPECIFICALLY REQUESTED BY YOU, BOTH UNDER THE PROVISIONS OF THE CONTRACT AND THE COMMON LAW "DELIVERY" WAS ACCOMPLISHED TO COMPLETE THE CONTRACT OF SALE. IN THE CIRCUMSTANCES WE BELIEVE THAT THE DELIVERY MADE WAS CONSTRUCTIVE DELIVERY TO THE CONSIGNEE AND NOT TO THE PARTY NAMED AS SHIPPER. SEE 77 C.J.S., SALES, SECTIONS 131 AND 141D. IT IS ALSO TO BE NOTED THAT PART I OF THE INTERSTATE COMMERCE ACT PROVIDES IN PERTINENT PART (49 U.S.C. 20 (11), AND 49 U.S.C. 319), THAT THE DUTY OF ISSUING APPROPRIATE BILLS OF LADING RESTS UPON THE CARRIER, NOT THE SHIPPER. THE FACT THAT IT IS NOT UNCOMMON FOR SHIPPERS TO PREPARE BILLS OF LADING FOR EXECUTION BY THE CARRIERS' AGENTS DOES NOT RELIEVE THE CARRIER OF THAT DUTY. SEE SOUTHGATE BROKERAGE COMPANY, INC., V. LEHIGH VALLEY RAILROAD COMPANY, 274 I.C.C. 245-247; EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY, 234 I.C.C. 441-442.

FURTHER, EVEN IF THE NAMING OF HELICOPTER INDUSTRIES AS SHIPPER IN THE BILL OF LADING COULD BE CONSTRUED AS DELIVERY TO THAT FIRM, IT WOULD APPEAR THAT BY VIRTUE OF ITS ASSIGNMENT TO YOU OF THE ORIGINAL PURCHASE CONTRACT IT WOULD BE OBLIGATED TO ACCOUNT TO YOU FOR THE PROPERTY. ON THE RECORD WE ARE UNABLE TO FIND ANY INDICATION THAT HELICOPTER INDUSTRIES HAS ASSERTED ANY POSITION OR TAKEN ANY ACTION ADVERSE TO YOUR INTERESTS, OR THAT YOU HAVE IN FACT SUFFERED ANY LOSS OR DAMAGE AS A RESULT OF THE DESIGNATION OF THAT FIRM AS SHIPPER.

ACCORDINGLY, WE SEE NO VALID BASIS ON WHICH THE GOVERNMENT MAY BE HELD LIABLE, AND OUR EARLIER DECISIONS ALLOWING YOUR CLAIM ARE THEREFORE REAFFIRMED.