A-35329, FEBRUARY 10, 1931, 10 COMP. GEN. 362

A-35329: Feb 10, 1931

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THE PROVISION THAT SETTLEMENT SHALL BE BASED UPON RAILROAD WEIGHTS FOR DELIVERY BY RAIL DOES NOT ESTABLISH THAT THE RAILROAD WEIGHTS AT POINT OF ORIGIN SHALL BE USED WHEN THE EXPENSE AND RISK OF DELIVERY ARE THOSE OF THE CONTRACTOR. WHICH ARE TESTED AND ACCEPTED BY THE RAILROADS. SHOWS THAT THERE IS A SHORTAGE IN DELIVERY. OF AN ITEM OF 515.03 WHICH WAS DEDUCTED ON VOUCHER NO. 5733. THE CONTRACT WAS ON THE STANDARD GOVERNMENT FORM OF COAL CONTRACT AND THERE WAS MADE A PART THEREOF STANDARD FORM NO. 43. IT SEEMS THAT IN CAR ERIE NO. 22269 THERE WAS SHIPPED ON AUGUST 2. THE COAL WAS PURCHASED F.O.B. WATERTOWN ARSENAL AND WAYBILL STATES THAT THIS SHIPMENT WAS "SUBJECT TO WEIGHING AT ARSENAL.'.

A-35329, FEBRUARY 10, 1931, 10 COMP. GEN. 362

CONTRACTS - DELIVERIES - SHORTAGES UNDER THE STANDARD FROM OF CONTRACT FOR THE PURCHASE OF COAL, THE PROVISION THAT SETTLEMENT SHALL BE BASED UPON RAILROAD WEIGHTS FOR DELIVERY BY RAIL DOES NOT ESTABLISH THAT THE RAILROAD WEIGHTS AT POINT OF ORIGIN SHALL BE USED WHEN THE EXPENSE AND RISK OF DELIVERY ARE THOSE OF THE CONTRACTOR, AND THE WEIGHING ON GOVERNMENT SCALES AT DESTINATION, WHICH ARE TESTED AND ACCEPTED BY THE RAILROADS, SHOWS THAT THERE IS A SHORTAGE IN DELIVERY.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 10, 1931:

THE PERRYMAN-BURNS COAL CO. HAS REQUESTED ALLOWANCE UNDER CONTRACT W-626- QM-8583, DATED JUNE 10, 1930, OF AN ITEM OF 515.03 WHICH WAS DEDUCTED ON VOUCHER NO. 5733, ACCOUNTS OF W. D. DABNEY, FINANCE OFFICER, FOR OCTOBER, 1930, ON ACCOUNT OF A SHORTAGE OF 2,756 POUNDS IN THE DELIVERY OF COAL AT THE WATERTOWN ARSENAL, MASS.

THE CONTRACT WAS ON THE STANDARD GOVERNMENT FORM OF COAL CONTRACT AND THERE WAS MADE A PART THEREOF STANDARD FORM NO. 43, STANDARD GOVERNMENT PURCHASE CONDITIONS FOR COAL, WHICH PROVIDED, IN PARAGRAPH 8, THAT---

WEIGHTS.--- FOR COAL PURCHASED F.O.B. POINT OF ORIGIN OR SHIPMENT, AND SHIPPED IN CARLOAD LOTS, AND FOR COAL PURCHASED F.O.B. DESTINATION AND SHIPPED IN CARLOAD LOTS OR DELIVERED BY BARGE OR SCOW,SETTLEMENT SHALL BE BASED UPON RAILROAD WEIGHTS FOR DELIVERY BY RAIL OR UPON CERTIFICATIONS FURNISHED BY THE CONTRACTOR OF RAILROAD WEIGHTS OF CARS MAKING UP CARGO FOR DELIVERY BY BARGE OR SCOW. FOR COAL PURCHASED UNDER CONDITIONS WHICH DO NOT ADMIT OF RAILROAD WEIGHTS, SETTLEMENT SHALL BE BASED UPON WEIGHTS AS DETERMINED BY PREVAILING COMMERCIAL PRACTICE.

IT SEEMS THAT IN CAR ERIE NO. 22269 THERE WAS SHIPPED ON AUGUST 2, 1930, BY THE CONTRACTOR FROM JESSUP, PA., A CARLOAD OF COAL TO THE WATERTOWN ARSENAL UNDER THE CONTRACT IN QUESTION AND THE WAYBILL SHOWS THE GROSS WEIGHT OF 144,176 POUNDS, TARE 38,000 POUNDS, OR NET WEIGHT 106.176 POUNDS. THE COAL WAS PURCHASED F.O.B. WATERTOWN ARSENAL AND WAYBILL STATES THAT THIS SHIPMENT WAS "SUBJECT TO WEIGHING AT ARSENAL.' WHEN THE CAR WAS RECEIVED AT WATERTOWN ARSENAL, AN INSPECTION THEREOF INDICATED THAT THERE WAS A SHORTAGE IN WEIGHT AND THE CAR WAS RUN ON THE SCALES AND WEIGHED WITH THE RESULT THAT THERE WAS SHOWN A SHORTAGE OF 2,576 POUNDS, WHICH AT THE CONTRACT RATE AMOUNTS TO THE DIFFERENCE OF $15.03 DEDUCTED IN MAKING PAYMENT FOR THE CAR OF COAL AND WHICH ITEM IS NOW CLAIMED.

THE CONTRACTOR CONTENDS THAT UNDER PARAGRAPH 8 OF THE STANDARD PURCHASE CONDITIONS, ABOVE QUOTED, THE GOVERNMENT IS REQUIRED TO PAY FOR 106,176 POUNDS OF COAL BECAUSE THAT WAS THE WEIGHT SHOWN ON THE WAYBILL, WHEREAS THE WAR DEPARTMENT CONTENDS THAT SINCE THE COAL WAS PURCHASED F.O.B. WATERTOWN ARSENAL AND DELIVERY WAS AT THE EXPENSE AND RISK OF THE CONTRACTOR THE UNITED STATES IS NOT REQUIRED TO PAY FOR THE COAL SHOWN NOT TO HAVE BEEN DELIVERED AND THAT ANY CLAIM THE CONTRACTOR MAY HAVE FOR SHORTAGE IN DELIVERY IS NOT AGAINST THE UNITED STATES.

IT WILL BE NOTED THAT THE CONTRACT MERELY PROVIDES THAT SETTLEMENT SHALL BE BASED UPON RAILROAD WEIGHTS FOR DELIVERY BY RAIL OR UPON CERTIFICATIONS FURNISHED BY THE CONTRACTOR OF RAILROAD WEIGHTS OF CARS MAKING UP CARGO FOR DELIVERY BY BARGE OR SCOW. IT DOES NOT PROVIDE THAT THE PAYMENT SHALL BE MADE ON THE RAILROAD WEIGHT AT POINT OFSHIPMENT AND, AS A MATTER OF FACT, PAYMENTS SHOULD NOT BE MADE UPON SUCH RAILROAD WEIGHTS AT POINT OF SHIPMENT WHEN THERE ARE AVAILABLE FACILITIES FOR WEIGHING COAL AT DESTINATION AND PARTICULARLY IF THERE IS ANY INDICATION THAT THE CAR DOES NOT CONTAIN THE WEIGHT OF COAL SHOWN ON THE WAYBILL OR INVOICES OF THE CONTRACTOR, AND WHEN THE RISK AND EXPENSE OF DELIVERY F.O.B. GOVERNMENT DESTINATION ARE THOSE OF THE CONTRACTOR. IN THIS CASE THERE WAS AN INDICATION OF SHORTAGE AND THERE ARE RAILROAD SCALES AT THE WATERTOWN ARSENAL WHICH HAD BEEN TESTED AND ADJUSTED THE DAY PREVIOUS TO THE WEIGHING IN QUESTION BY THE BOSTON AND MAINE RAILROAD AND SEALED BY THE SEALER OF WEIGHTS AND MEASURES OF THE TOWN OF WATERTOWN. WHILE THE SCALES APPEAR TO BE THE PROPERTY OF THE UNITED STATES, THEY ARE PERIODICALLY TESTED BY THE BOSTON AND MAINE RAILROAD AND THIS RAILROAD ACCEPTS THE WEIGHTS TAKEN ON THESE SCALES FOR BILLING PURPOSES. IN OTHER WORDS, TO ALL INTENTS AND PURPOSES THE SCALES ON WHICH THIS COAL WAS WEIGHED AT DESTINATION SHOW THE RAILROAD WEIGHTS OF THE COAL, AND AS THE CONTRACTOR HAS BEEN PAID ON THIS BASIS IT IS NOT ENTITLED TO THE ADDITIONAL PAYMENT OF $15.03 AS CLAIMED.