B-114039, JUN. 6, 1955

B-114039, JUN. 6, 1955

TO WOODCRAFT WORKS, LTD.:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 15, 1954, WITH ENCLOSURES, FROM BOSS AND WACHTEL, ATTORNEYS, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR $11,349.60 AND $4,692.50, TOTALING $16,042.10, AS REIMBURSEMENT OF DEMURRAGE CHARGES INCURRED IN CONNECTION WITH SHIPMENTS ON THE S.S. JINTSUGAMA MARU AND THE S.S. FUEI MARU, RESPECTIVELY, UNDER CONTRACTS NO. W-92-550-G-27-R (SOMETIMES CITED AS W-92-500-G-27 1/2) AND W-92-500-G-5-R. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED DECEMBER 2, 1952, AND THE DISALLOWANCE WAS SUSTAINED BY DECISIONS DATED MAY 1 AND JULY 1, 1953.

THE REQUEST FOR FURTHER CONSIDERATION OF THE MATTER IS MADE ON THE BASES THAT:

1. THE PURCHASER-CONSIGNEE AND THE PORT AUTHORITY AT THE DESTINATION WERE ONE AND THE SAME PARTY, THE GOVERNMENT OF THE UNITED STATES, AND THAT, THEREFORE, THE DELAY IN DISCHARGING THE VESSELS RESULTING FROM ORDERS OF THE PORT AUTHORITY WAS CAUSED BY THE PURCHASER-CONSIGNEE WHO BECAME LIABLE FOR DEMURRAGE INVOLVED; AND

2. ARRANGEMENTS WITH RESPECT TO NOTICE OF ARRIVAL OF VESSELS AT NAHA, OKINAWA, WERE MADE WITH PROPER REPRESENTATIVES OF THE GOVERNMENT WHICH "CONSTITUTE A BINDING AGREEMENT ON THE PART OF THE GOVERNMENT TO PAY THE DUMURRAGE.'

THE CONTRACTS COVERED FURNISHING AND DELIVERING LUMBER AND, SO FAR AS MATERIAL HERE, CONTAINED IDENTICAL PROVISIONS, EXCEPT AS TO FINAL DELIVERY DATES. THEY SPECIFIED THAT THE PRICES WERE "C AND F NAHA, OKINAWA; " THAT SHIPMENT BE MADE BY OCEAN VESSELS FROM PHILIPPINE PORTS TO NAHA, OKINAWA, OR OTHER RYUKYUS ISLAND PORT TO BE SPECIFIED, ON OR BEFORE SEPTEMBER 30, 1949, AND DECEMBER 31, 1949, EXTENDED TO JUNE 30, 1950, AND AUGUST 31, 1950, RESPECTIVELY; THAT DELIVERY OF EACH SHIPMENT WOULD TAKE PLACE WHEN BILLS OF LADING WERE ISSUED, TITLE AND RISK OF LOSS AND DAMAGE IN TRANSIT PASSING TO THE GOVERNMENT UPON SUCH DELIVERY; AND THAT PAYMENT FOR EACH SHIPMENT WOULD BE MADE UPON RECEIPT IN TOKYO, JAPAN, OF THE FOLLOWING:

"SELLER'S COMMERCIAL INVOICE.

FULL SET OF NEGOTIABLE CLEAN ON-BOARD OCEAN VESSEL BILLS OF LADING,

FREIGHT PREPAID. CERTIFICATE OF INSPECTION AND MEASUREMENT.'

THE RECORD SUPPORTS YOUR STATEMENT AS TO THE LAY DAYS INVOLVED IN DISCHARGING THE CARGO OF THE S.S. FUEI MARU AND BOTH THE CHARTER AND FIXTURE MEMO OF THAT VESSEL FIXED THE RATE OF DISCHARGE AS 300,000 FBM PER WEATHER WORKING DAY, THE RATE USED BY YOU IN COMPUTING DEMURRAGE IN THE AMOUNT OF $4,692.50 ON THAT VESSEL. WITH RESPECT TO THE S.S. JINTSUGAMA MARU WHILE A COPY OF THE CHARTER HAS NOT BEEN MADE AVAILABLE HERE, A COPY OF THE FIXTURE MEMO, WHICH, AS AFFIRMED BY YOUR AGENT, MR. WILLIAM E. CONNOR, APPEARS TO BE CONTROLLING IN THE EVENT OF VARIANCE BETWEEN THE PROVISIONS THEREOF AND THOSE CONTAINED IN THE CHARTER, FIXED THE RATE OF DISCHARGE OF THE S.S. JINTSUGAMA MARU AT 100,000 FBM PER DAY RATHER THAN 300,000 FBM PER DAY USED IN COMPUTING THE AMOUNT CLAIMED AS DEMURRAGE ON THAT VESSEL. MOREOVER, THE ADMINISTRATIVE REPORT SHOWS THAT, ON JULY 17, 1950, THE S.S. JINTSUGAMA MARU VOLUNTARILY MOVED OUT FROM THE PORT AT NAHA, OKINAWA, FOR THE PURPOSE OF RIDING OUT A STORM IN THE OPEN SEA, AND THAT THE VESSEL DID NOT RETURN TO PORT UNTIL JULY 20, 1950. THUS, IT APPEARS THAT AT LEAST 3 DAYS WERE IMPROPERLY INCLUDED IN THE COMPUTATION OF DEMURRAGE CLAIMED BY YOU, AND THAT THE DEMURRAGE FOR DELAYS IN DISCHARGING THE S.S. JINTSUGAMA MARU, WOULD AMOUNT TO ONLY $4,200 (7 DAYS AT $600 PER DELAY-DAY AS FIXED IN THE FIXTURE MEMO), RATHER THAN $11,349.60 COMPUTED AND CLAIMED BY YOU. MOREOVER, MR. CONNOR HAS ADMITTED THAT NO PAYMENT FOR DEMURRAGE CHARGES ON THE S.S. JINTSUGAMA MARU AND THE S.S. FUEI MARU HAVE BEEN MADE TO THE CARRIER BY YOU.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THERE WAS NO AGREEMENT BY IT, WRITTEN OR OTHERWISE, TO MAKE REIMBURSEMENT FOR THE DEMURRAGE INCURRED IN CONNECTION WITH SHIPMENTS UNDER THE BASIC CONTRACTS IN GENERAL, OR WITH THE SHIPMENTS ON THE S.S. JINTSUGAMA MARU AND THE S.S. FUEI MARU IN PARTICULAR. WITH RESPECT TO CONTRACT DA-92-500-FEC 346, DATED APRIL 10, 1950, BETWEEN THE RYUKYUS PROCUREMENT DEPARTMENT AND YOU, UNDER WHICH THE REIMBURSEMENT OF THE DEMURRAGE CHARGES INCURRED IN UNLOADING THE S.S. SHASHIN WAS MADE, THAT CONTRACT RELATED TO THE ONE SHIPMENT ONLY. THEREFORE, REGARDLESS OF ANY QUESTION AS TO THE VALIDITY OF THAT CONTRACT, THE ACTION IN THAT CASE MAY NOT BE REGARDED AS RAISING ANY OBLIGATION ON THE PART OF THE GOVERNMENT TO MAKE REIMBURSEMENT FOR DEMURRAGE ACCRUING ON ANY OTHER SHIPMENT. IN THE CASE OF THE S.S. JINTSUGAMA MARU AND S.S. FUEI MARU, MR. CONNOR ADMITS THAT YOU WERE FULLY AWARE OF THE CONGESTED CONDITION OF THE PORT OF NAHA PRIOR TO AND AT THE TIME THE VESSELS WERE DISPATCHED TO THAT PORT. MOREOVER, THE EXTENSION OF THE TIME FOR DELIVERY UNDER EACH OF THE BASIC CONTRACTS WAS MADE FOR YOUR CONVENIENCE, UPON THE REQUEST OF MR. CONNOR ON JUNE 30, 1950, AFTER THE BEGINNING OF THE KOREAN INCIDENT.

THE COURTS HAVE HELD THAT THE GOVERNMENT IN ITS SOVEREIGN CAPACITY IS SEPARATE AND DISTINCT FROM ITS CAPACITY AS A CONTRACTOR AND THAT IT IS NOT LIABLE AS A CONTRACTOR FOR ITS ACTS AS A SOVEREIGN. SEE HOROWITZ V. UNITED STATES, 267 U.S. 458. THE ACTS OF THE PORT AUTHORITY AT NAHA IN CAUSING THE DELAYS INVOLVED IN YOUR CLAIM CERTAINLY WERE NOT ACTS OF THE GOVERNMENT IN ITS CAPACITY AS A CONTRACTOR. THUS, THERE APPEARS NO BASIS FOR YOUR CONTENTION THAT THE ACTS OF THE PORT AUTHORITY AT NAHA, OKINAWA, WHICH RESULTED IN THE DELAYS INVOLVED IN YOUR CLAIM, WERE ACTS OF THE PURCHASER-CONSIGNEE UNDER THE BASIC CONTRACTS.

IT IS OBVIOUS FROM WHAT HAS BEEN SAID THAT YOUR CLAIM IS AN UNLIQUIDATED CLAIM FOR DAMAGES WHICH, IN THE ABSENCE OF A SPECIFIC STATUTE, THIS OFFICE IS WITHOUT AUTHORITY TO CERTIFY FOR PAYMENT FROM APPROPRIATED FUNDS. SEE POWER V. UNITED STATES, 18 C.C.S. 263; MCCLURE V. UNITED STATES, 19 ID. 173; AND DENNIS V. UNITED STATES, 20 ID. 119 AND 23 ID. 324. MOREOVER, THERE IS DOUBT THAT THE GOVERNMENT IS LEGALLY OBLIGATED TO MAKE REIMBURSEMENT FOR ANY DEMURRAGE PAID BY YOU OR FOR WHICH YOU MAY BE LIABLE IN CONNECTION WITH DELIVERIES UNDER THE BASIC CONTRACTS. THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED TO CERTIFY FOR PAYMENT CLAIMS OF DOUBTFUL VALIDITY. ON THE CONTRARY, IT LONG HAS BEEN THE ESTABLISHED RULE THAT ACCOUNTING OFFICERS SHOULD REJECT OR DISALLOW CLAIMS WHERE THERE IS DOUBT AS TO THE VALIDITY THEREOF, LEAVING CLAIMANTS TO PROSECUTE THE CLAIMS IN A PROPER COURT, IF THEY SO DESIRE, WHERE THEY MAY PROVE THEIR CASES UNDER THE RULES AND FORMS OF LAW. SEE CHARLES V. UNITED STATES, 19 C.CLS. 316; AND LONGWILL V. UNITED STATES, 17 ID. 288.