A-65269, DECEMBER 2, 1935, 15 COMP. GEN. 461

A-65269: Dec 2, 1935

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IS OBLIGATED TO DELIVER SUPPLIES AT DESTINATION. THE VESSEL SELECTED BY HIM FOR THE TRANSPORTATION IS DELAYED BECAUSE OF FOG. NOTWITHSTANDING THE DELAYS WERE BEYOND HIS CONTROL AND WITHOUT NEGLIGENCE OR FAULT ON HIS PART. WHEREIN WAS DISALLOWED YOUR CLAIM IN THE AMOUNT OF $49.46 FOR REMISSION OF LIQUIDATED DAMAGES DEDUCTED FROM OTHERWISE PROPER PAYMENTS UNDER CONTRACT NO. 33131. WITH THE PROVISO THAT LIQUIDATED DAMAGES WOULD NOT BE CHARGED WHEN THE DELAY IN DELIVERY WAS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. WAS DECEMBER 31. AS DELIVERY WAS NOT MADE UNTIL JANUARY 30. A DELAY OF 30 DAYS RESULTED FOR WHICH LIQUIDATED DAMAGES WERE ASSESSED IN THE AMOUNT OF $78.10.

A-65269, DECEMBER 2, 1935, 15 COMP. GEN. 461

CONTRACTS - LIQUIDATED DAMAGES - TRANSPORTATION OF SUPPLIES BY VESSEL WHERE A CONTRACTOR, BY THE TERMS OF A CONTRACT, IS OBLIGATED TO DELIVER SUPPLIES AT DESTINATION, WITH OPTION OF ROUTING, AND THE VESSEL SELECTED BY HIM FOR THE TRANSPORTATION IS DELAYED BECAUSE OF FOG, GROUNDING AND DRYDOCK REPAIRS, BEYOND THE SCHEDULED DESTINATION ARRIVAL DATE, THE CONTRACTOR MAY NOT BE GIVEN THE BENEFIT OF THE SCHEDULED ARRIVAL DATE IN THE COMPUTATION OF LIQUIDATED DAMAGES PROVIDED FOR DELAYS IN PERFORMANCE OF THE CONTRACT, NOTWITHSTANDING THE DELAYS WERE BEYOND HIS CONTROL AND WITHOUT NEGLIGENCE OR FAULT ON HIS PART.

COMPTROLLER GENERAL MCCARL TO THE CENTRAL IRON AND STEEL COMPANY, DECEMBER 2, 1935:

THERE HAS BEEN CONSIDERED YOUR REQUEST OF JULY 16, 1935, FOR REVIEW OF SETTLEMENT NO. 0221800 (1) DATED JULY 6, 1935, WHEREIN WAS DISALLOWED YOUR CLAIM IN THE AMOUNT OF $49.46 FOR REMISSION OF LIQUIDATED DAMAGES DEDUCTED FROM OTHERWISE PROPER PAYMENTS UNDER CONTRACT NO. 33131, DATED SEPTEMBER 26, 1933.

UNDER THE PROVISIONS OF THE CONTRACT YOU AGREED TO DELIVER A QUANTITY OF STEEL PLATES, MEDIUM, BLACK, AND GALVANIZED,"ALL TRANSPORTATION CHARGES PAID, IN LESS THAN CARLOAD LOTS, TO THE SUPPLY OFFICERS OF THE NAVY YARDS SPECIFIED * * *" WITHIN 60 DAYS AFTER RECEIPT OF ORDER AND IN THE EVENT OF DELAY TO PAY TO THE GOVERNMENT AS LIQUIDATED DAMAGES ONE-THIRD OF 1 PERCENT PER DIEM OF THE VALUE OF THE BALANCE OF THE UNDELIVERED MATERIAL LISTED ON EACH ORDER SHEET BUT NOT TO EXCEED AN AGGREGATE OF 10 PERCENT OF THE STIPULATED VALUE OF THE MATERIAL NOT DELIVERED WITHIN THE REQUIRED TIME, WITH THE PROVISO THAT LIQUIDATED DAMAGES WOULD NOT BE CHARGED WHEN THE DELAY IN DELIVERY WAS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING, BUT NOT RESTRICTED TO, CERTAIN SPECIFIED CAUSES ENUMERATED IN THE CONTRACT.

THE DATE ESTABLISHED FOR DELIVERY OF THE SUPPLIES TO THE NAVY YARD, PUGET SOUND, WASH., WAS DECEMBER 31, 1933, BUT AS DELIVERY WAS NOT MADE UNTIL JANUARY 30, 1934, A DELAY OF 30 DAYS RESULTED FOR WHICH LIQUIDATED DAMAGES WERE ASSESSED IN THE AMOUNT OF $78.10. REMISSION OF A PART OF THE LIQUIDATED DAMAGES WAS REQUESTED ON THE GROUND THAT THE VESSEL ON WHICH THE SUPPLIES WERE SHIPPED WAS DELAYED IN SAILING FROM BALTIMORE, MD.; THAT THE VESSEL WENT AGROUND IN A FOG DURING THE VOYAGE; AND THAT DUE TO AN INJURY TO THE VESSEL AS A RESULT OF THE GROUNDING IT WAS NECESSARY TO PLACE THE VESSEL IN DRYDOCK AT PORTLAND, OREG., PREVIOUS TO COMPLETING THE VOYAGE. IN THE SETTLEMENT REMISSION OF LIQUIDATED DAMAGES WAS DENIED FOR THE REASON THAT THE CAUSES OF DELAY WERE NOT EXCUSABLE UNDER THE PROVISIONS OF THE CONTRACT.

IN REQUESTING REVIEW OF THE SETTLEMENT THE FOLLOWING STATEMENTS WERE MADE:

WE UNDERSTAND, OF COURSE, THAT WE WERE RESPONSIBLE FOR MAKING DELIVERY TO THE NAVY YARD AND HAD THE OPTION OF ROUTING TO THE NAVY YARD. WE ROUTED THE MATERIAL VIA THE QUAKER LINE IN PERFECTLY GOOD FAITH IN AN ENDEAVOR TO MAKE THE BEST POSSIBLE DELIVERY AND IN VIEW OF THE STATEMENT IN YOUR LETTER AND THE CONTRACT IN REGARD TO THE CONTRACTOR'S LIABILITY FOR DELAY, WE FEEL THAT WE SHOULD BE GIVEN THE BENEFIT OF THE SCHEDULED SAILINGS AND ARRIVALS OF THE VESSEL INSTEAD OF THE ACTUAL ARRIVAL.

THE GROUNDING AND DRYDOCKING OF THE VESSEL WAS MOST CERTAINLY NOT ANTICIPATED AT THE TIME WE SELECTED THE LINE AND WAS BEYOND OUR CONTROL AND NOT DUE TO OUR FAULT OR NEGLIGENCE. WE HAD EVERY ASSURANCE THAT THE VESSEL WOULD ARRIVE ON SCHEDULED TIME AND WE BELIEVE WE SHOULD BE GIVEN THE BENEFIT OF THIS IN THE FINAL CALCULATION OF THE LIQUIDATED DAMAGES. IF WE HAD BEEN ABLE TO FORESEE THE ACCIDENT IT WOULD HAVE BEEN TO OUR INTEREST TO SELECT ANOTHER STEAMSHIP LINE AND THUS ELIMINATE A PART ORALL OF THE AMOUNT IN QUESTION.

THERE IS NOTHING IN THE CONTRACT WHICH AUTHORIZES USING THE VESSEL'S SCHEDULED DATE OF SAILING AND ARRIVAL IN COMPUTING THE DELAY IN DELIVERY. THE GOVERNMENT WAS NOT CONCERNED WITH THE TRANSPORTATION OF THE SUPPLIES TO THE NAVY YARD BUT ONLY IN THE RECEIPT THEREOF AT THE PUGET SOUND NAVY YARD ON THE DUE DATE. THEREFORE, THE ACTUAL DATE ON WHICH DELIVERY WAS MADE MUST BE USED IN COMPUTING LIQUIDATED DAMAGES.

IT APPEARS FROM THE RECORD THAT THE VESSEL ON WHICH THE STEEL PLATES WERE SHIPPED WAS STRANDED DURING FOGGY WEATHER IN ASUNCION BAY FROM 2 A.M., DECEMBER 25 UNTIL 6:30 A.M., ON THE FOLLOWING DAY AND THAT AS A RESULT THEREOF IT BECAME NECESSARY TO PLACE THE VESSEL IN DRYDOCK AT PORTLAND FROM JANUARY 4 UNTIL JANUARY 17, INCLUSIVE. YOUR STATEMENTS THAT THE GROUNDING AND DRYDOCKING OF THE VESSEL WERE NOT ANTICIPATED AND WERE BEYOND YOUR CONTROL AND NOT DUE TO YOUR FAULT OR NEGLIGENCE HAVE BEEN NOTED.

WHILE IT MAY BE THAT AT THE TIME YOU SELECTED THE STEAMSHIP LINE YOU DID NOT ANTICIPATE OR EXPECT THE VESSEL ON WHICH THE SUPPLIES WERE SHIPPED WOULD ENCOUNTER FOGGY WEATHER AND BE GROUNDED, NEVERTHELESS, SUCH EVENTS CANNOT BE CLASSED AS UNFORESEEABLE WITHIN THE MEANING OF THE CONTRACT.

WITH REFERENCE TO THE ALLEGATION THAT THE DELAY WAS BEYOND YOUR CONTROL AND WITHOUT YOUR FAULT OR NEGLIGENCE, IT MAY BE STATED THAT YOUR OBLIGATION WAS TO DELIVER THE SUPPLIES TO THE PUGET SOUND NAVY YARD AND IN ORDER TO FULFILL THAT OBLIGATION YOU SELECTED A CARRIER TO TRANSPORT THE SUPPLIES. THAT CARRIER BECAME YOUR AGENT AND NOT THE AGENT OF THE GOVERNMENT AND THE DELAYS IN THE TRANSPORTATION, EVEN THOUGH BEYOND YOUR CONTROL AND WITHOUT FAULT OR NEGLIGENCE ON YOUR PART, WERE ASSUMED BY YOU.

ACCORDINGLY, THE SETTLEMENT OF JULY 6, 1935, DISALLOWING YOUR CLAIM, MUST BE, AND IS, SUSTAINED.