B-125165, OCT. 31, 1955

B-125165: Oct 31, 1955

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WITH THE REQUEST THAT AN ADVANCE DECISION BE RENDERED AS TO WHETHER PAYMENT THEREON IS AUTHORIZED. 861 AND $100 COVERED BY THE VOUCHER ARE SHOWN TO HAVE BEEN DEDUCTED ON D.O. THE DEDUCTIONS WERE MADE TO COVER THE COST TO THE GOVERNMENT OF REPAIRING ARMY BARGE 1866 -B. WHICH WAS DAMAGED ON MARCH 28. THE CONTRACTOR SHALL AT HIS OWN EXPENSE FURNISH SUCH SERVICES WHEN THE VESSEL IS IN A BASIC COMMODITY STATUS. SCHEDULE II WHEN THE VESSEL IS IN A "MAN HOUR" STATUS. CAR FLOATS WILL BE PLACED ALONGSIDE THE VESSEL WITHOUT COST TO THE CONTRACTOR. WHEN THEY ARE SHIFTED FROM HATCH TO HATCH. WILL SUPPLY ALL PERSONNEL REQUIRED THEREFOR. THE GENERAL LIABILITY AND RESPONSIBILITY OF THE CONTRACTOR UNDER THIS CLAUSE ARE SUBJECT ONLY TO THE FOLLOWING SPECIFIC LIMITATIONS. "/B) THE CONTRACTOR SHALL NOT BE RESPONSIBLE TO THE GOVERNMENT FOR AND DOES NOT AGREE TO HOLD THE GOVERNMENT HARMLESS FROM LOSS OR DAMAGE TO PROPERTY OR BODILY INJURY TO OR DEATH OF PERSONS: "/1) IF THE UNSEAWORTHINESS OF THE VESSEL OR FAILURE OR DEFECT OF THE GEAR OR EQUIPMENT FURNISHED BY THE GOVERNMENT CONTRIBUTED JOINTLY WITH THE FAULT OR NEGLIGENCE OF THE CONTRACTOR IN CAUSING SUCH DAMAGE.

B-125165, OCT. 31, 1955

TO MAJOR A. E. POST, JR., F.C., U.S. ARMY:

YOUR LETTER OF JULY 29, 1955, ADDRESSED TO THE CHIEF OF FINANCE, TRANSMITS A VOUCHER IN THE AMOUNT OF $1,961, STATED IN FAVOR OF PITTSTON STEVEDORING CORPORATION, WITH THE REQUEST THAT AN ADVANCE DECISION BE RENDERED AS TO WHETHER PAYMENT THEREON IS AUTHORIZED.

THE AMOUNTS OF $1,861 AND $100 COVERED BY THE VOUCHER ARE SHOWN TO HAVE BEEN DEDUCTED ON D.O. VOUCHERS NOS. 59666 AND 73550, RESPECTIVELY, IN THE JUNE AND SEPTEMBER 1951 ACCOUNTS OF R.A. LOCKWOOD, SYM. 215 456, COVERING PAYMENTS TO PITTSTON UNDER CONTRACT NO. W 30-222-TC 276. THE DEDUCTIONS WERE MADE TO COVER THE COST TO THE GOVERNMENT OF REPAIRING ARMY BARGE 1866 -B, WHICH WAS DAMAGED ON MARCH 28, 1951, AS A RESULT OF THE REPORTED NEGLIGENCE OF CERTAIN EMPLOYEES OF THE CONTRACTOR WHILE ENGAGED IN LOADING DUNNAGE AND CORDWOOD ABOARD THE USMS PRIVATE FRANCIS X MCGRAW PURSUANT TO CONTRACT NO. DA 30-182-TC 195, DATED JUNE 23, 1950, FOR STEVEDORING SERVICES IN THE NEW YORK HARBOR AREA.

CONTRACT NO. DA 30-182-TC-195, WITH PITTSTON, PROVIDED IN MATERIAL PART AS FOLLOWS:

"ARTICLE 1.

"F. DOCKING, UNDOCKING AND SHIFTING OF VESSELS. THE CONTRACTOR SHALL, WHEN REQUESTED BY THE CONTRACTING OFFICER OR HIS REPRESENTATIVE, FURNISH MEN TO PLACE AND REMOVE GANGWAYS; HANDLE LINES FOR DOCKING, UNDOCKING AND SHIFTING OF VESSELS. THE CONTRACTOR SHALL AT HIS OWN EXPENSE FURNISH SUCH SERVICES WHEN THE VESSEL IS IN A BASIC COMMODITY STATUS. THE GOVERNMENT SHALL PAY THE CONTRACTOR FOR THE COST OF SUCH SERVICES AT THE EXTRA LABOR RATES INDICATED UNDER ARTICLE 2, SCHEDULE II WHEN THE VESSEL IS IN A "MAN HOUR" STATUS.

"G. SHIFTING BARGES, LIGHTERS, SCOWS, AND CAR FLOATS. BARGES, LIGHTERS, SCOWS, AND CAR FLOATS WILL BE PLACED ALONGSIDE THE VESSEL WITHOUT COST TO THE CONTRACTOR. WHEN THEY ARE SHIFTED FROM HATCH TO HATCH, THE CONTRACTOR SHALL DO SO AT HIS OWN EXPENSE UNLESS OPERATIONAL CONDITIONS MAKE MOVEMENTS BY SHIP'S GEAR IMPRACTICABLE, IN WHICH EVENT THE OPERATION SHALL BE AT THE EXPENSE OF THE GOVERNMENT.

"R. EXTRA LABOR. THE CONTRACTOR SHALL, WHEN DIRECTED BY THE CONTRACTING OFFICER, SUPPLY EXTRA LABOR FOR MISCELLANEOUS SERVICES WHEN NOT OCCASIONED BY THE NEGLIGENCE OF THE CONTRACTOR, AND SHALL BE COMPENSATED THEREFOR ON THE BASIS OF THE RATES SET FORTH IN THE APPLICABLE SCHEDULE OF ARTICLE 2.

"A. VESSEL MAN HOUR SERVICES. (1) THE CONTRACTOR SHALL, WHEN REQUIRED BY THE CONTRACTING OFFICER, LOAD OR DISCHARGE CARGO OR PERFORM ANY SERVICES ON A VESSEL DESIGNATED TO BE HANDLED ON A MAN HOUR BASIS, AND WILL SUPPLY ALL PERSONNEL REQUIRED THEREFOR.

"ARTICLE 9. EMPLOYEES OF CONTRACTOR.

"ALL EMPLOYEES OF THE CONTRACTOR EMPLOYED IN PERFORMANCE OF WORK UNDER THIS CONTRACT SHALL BE EMPLOYEES OF THE CONTRACTOR AT ALL TIMES AND NOT OF THE GOVERNMENT. * * *

"ARTICLE 12. LIABILITY AND INSURANCE.

"/A) THE CONTRACTOR

(1) SHALL BE LIABLE TO THE GOVERNMENT FOR ANY AND ALL LOSS OF OR DAMAGE TO CARGO, VESSELS, PIERS OR ANY OTHER PROPERTY OF EVERY KIND AND DESCRIPTION. * * *

* * * * * * * "OCCASIONED EITHER IN WHOLE OR IN PART BY THE NEGLIGENCE OR FAULT OF THE CONTRACTOR, HIS OFFICERS, AGENTS, OR EMPLOYEES IN THE PERFORMANCE OF WORK UNDER THIS CONTRACT. THE GENERAL LIABILITY AND RESPONSIBILITY OF THE CONTRACTOR UNDER THIS CLAUSE ARE SUBJECT ONLY TO THE FOLLOWING SPECIFIC LIMITATIONS.

"/B) THE CONTRACTOR SHALL NOT BE RESPONSIBLE TO THE GOVERNMENT FOR AND DOES NOT AGREE TO HOLD THE GOVERNMENT HARMLESS FROM LOSS OR DAMAGE TO PROPERTY OR BODILY INJURY TO OR DEATH OF PERSONS:

"/1) IF THE UNSEAWORTHINESS OF THE VESSEL OR FAILURE OR DEFECT OF THE GEAR OR EQUIPMENT FURNISHED BY THE GOVERNMENT CONTRIBUTED JOINTLY WITH THE FAULT OR NEGLIGENCE OF THE CONTRACTOR IN CAUSING SUCH DAMAGE, INJURY, OR DEATH, AND THE CONTRACTOR, ITS OFFICERS, AGENTS, AND EMPLOYEES, BY THE EXERCISE OF DUE DILIGENCE, COULD NOT HAVE DISCOVERED SUCH UNSEAWORTHINESS OR DEFECT OF GEAR OR EQUIPMENT, OR THROUGH THE EXERCISE OF DUE DILIGENCE COULD NOT OTHERWISE HAVE AVOIDED SUCH DAMAGE, INJURY, OR DEATH.

"/2) IF THE DAMAGE, INJURY, OR DEATH RESULTED SOLELY FROM AN ACT OR OMISSION OF THE GOVERNMENT OR ITS EMPLOYEES OR RESULTED SOLELY FROM PROPER COMPLIANCE BY OFFICERS, AGENTS, OR EMPLOYEES OF THE CONTRACTOR WITH SPECIFIC DIRECTIONS OF THE CONTRACTING OFFICER.

"/C) THE CONTRACTOR SHALL AT ITS OWN EXPENSE PROCURE AND MAINTAIN DURING THE TERM OF THIS CONTRACT, INSURANCE AS FOLLOWS:

"/3) PROPERTY DAMAGE LIABILITY INSURANCE (WHICH SHALL INCLUDE ANY AND ALL PROPERTY, WHETHER OR NOT IN THE CARE, CUSTODY, OR CONTROL OF THE CONTRACTOR) IN AN AMOUNT OF NOT LESS THAN $250,000 ON ACCOUNT OF ANY ONE ACCIDENT.'

THE DAMAGE TO THE BARGE WAS SUSTAINED WHEN, IN THE PROCESS OF BEING "SHIFTED" BY THE CONTRACTOR'S EMPLOYEES FROM THE SIDE OF THE FRANCIS X, IT STRUCK THE PROPELLER OF THAT VESSEL. THE BARGE, WHICH HAD JUST BEEN UNLOADED BY THE CONTRACTOR, WAS SHIFTED, OR MOVED, BY THE LONGSHOREMEN EMPLOYED BY PITTSTON IN ORDER THAT A SECOND BARGE LYING ON THE OPPOSITE SIDE OF BARGE NO. 1866-R COULD BE BROUGHT ALONGSIDE THE FRANCIS X FOR UNLOADING.

BY LETTER OF JUNE 21, 1951, THE CONTRACTING OFFICER ADVISED THE CONTRACTOR THAT, UPON THE BASIS OF INFORMATION FURNISHED TO HIM BY THE MARINE CASUALTY INVESTIGATING OFFICER, NEW YORK PORT OF EMBARKATION, IT WOULD BE NECESSARY TO HOLD THE CONTRACTOR PRELIMINARILY LIABLE FOR THE DAMAGE IN ACCORDANCE WITH ARTICLE 12 OF THE CONTRACT BY EFFECTING A WITHHOLDING OF $1,861 FROM ACCOUNTS PAYABLE TO IT PENDING COMPLETION OF INVESTIGATION AND FINAL DETERMINATION OF THE MATTER. IN THE REPORT OF INVESTIGATION, DATED SEPTEMBER 12, 1951, MADE BY THE MARINE CASUALTY INVESTIGATING OFFICER, AFTER WHAT APPEARS TO HAVE BEEN AN EXHAUSTIVE INVESTIGATION OF THE MATTER, SUCH OFFICER SETS FORTH THE REASONS WHY THE DAMAGE TO THE BARGE WAS, IN HIS OPINION, ATTRIBUTABLE TO THE NEGLIGENT MANNER IN WHICH THE SHIFTING OPERATION WAS PERFORMED BY THE CONTRACTOR'S EMPLOYEES. ALSO, HE STATES THAT THE SHIFTING OPERATION "WAS NOT IN COMPLIANCE WITH ANY SPECIFIC INSTRUCTIONS OR ORDERS OF THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE, AND WAS UNDERTAKEN AT THE CONTRACTOR'S OWN RISK.' THE REPORT INDICATES THAT IT WAS APPROVED BY THE COMMANDING OFFICER OF THE PORT ON OCTOBER 9, 1951.

IN THE REPORT OF REVIEW OF THE MATTER DATED OCTOBER 8, 1951, MADE BY THE ACTING PORT CLAIMS JUDGE ADVOCATE, IT IS STATED, IN PERTINENT PART, AS FOLLOWS:

"A. THE RECORD DISCLOSES AN UNDISPUTED FACT OF DAMAGE TO THE "BC 1866" ON 28 MARCH 1951, CAUSED WHEN LONGSHOREMEN IN THE EMPLOY OF THE PITTSTON STEVEDORING CORPORATION, WHILE MANUALLY ATTEMPTING TO SHIFT THE "BC-1866" WITH THE AID OF THE "MCGRAW-S" HATCH NO. 4 BOOM RUNNER, ALLOWED THE BARGE TO DRIFT INTO AND COLLIDE WITH THE PROPELLER OF THE NAVAL VESSEL. THE PREPONDERENCE OF THE EVIDENCE REVEALS THAT THE LONGSHOREMEN WERE NEGLIGENT IN FAILING TO HANDLE PROPERLY THE LINES OF THE "BC-1866" DURING THE SHIFTING MANEUVER, AND IN FAILING, FURTHER, TO OPERATE THE "MCGRAW-S" GEAR IN SUCH A CAREFUL AND PRUDENT MANNER AS TO AVOID THE CONTACT BETWEEN THE BARGE AND THE NAVAL VESSEL. * * *

"THERE IS NO EVIDENCE TENDING TO ESTABLISH THAT THE MOVEMENT ATTEMPTED BY THE STEVEDORES WAS ,IMPRACTICABLE" WITHIN THE CONTEMPLATION OF ARTICLE 1 (G) OF THE CONTRACT. ON THE CONTRARY, THE EVIDENCE SHOWS THAT THE MANEUVER WAS ONE THAT WAS CUSTOMARILY PERFORMED UNDER THE CONTRACT. HAVING UNDERTAKEN A MANUAL SHIFT OF THE BARGE WITH THE AID OF THE NAVAL VESSEL'S GEAR, THE STEVEDORES SHOULD HAVE TAKEN INTO ACCOUNT THE TIDAL AND WEATHER CONDITIONS THEN PREVAILING AND SHOULD HAVE HANDLED THE SHIP'S GEAR AND BARGE'S LINES IN SUCH A MANNER AS TO AVOID DAMAGE TO THE BARGE. * *

"D. IN VIEW OF THE EVIDENCE OF RECORD, SUFFICIENT BASIS EXISTS FOR HOLDING THE PITTSTON STEVEDORING CORPORATION LIABLE UNDER ARTICLE 12 OF THE STEVEDORING CONTRACT FOR THE DAMAGE SUSTAINED BY THE "BC-1866" ON 28 MARCH 1951. THERE IS ALSO SUFFICIENT BASIS FOR THE MAKING BY THE CONTRACTING OFFICER OF A FINDING OF FACT UNDER THE "DISPUTES" ARTICLE OF THE STEVEDORING CONTRACT, HOLDING THE PITTSTON STEVEDORING CORPORATION PECUNIARILY LIABLE IN THE AMOUNT OF $1961.00 REPRESENTING THE COST TO REPAIR SAID DAMAGE. THE CONTRACTOR HAS NOT CLAIMED THAT THE MCGRAW'S GEAR USED IN THE DRIFTING OPERATION WAS DEFECTIVE. THE GOVERNMENT HAS SUSTAINED THE BURDEN OF PROOF LEGALLY IMPOSED UPON IT IN THE PREMISES AND THE CONTRACTOR HAS NOT BROUGHT ITSELF WITHIN THE EXCEPTIONS TO ITS LIABILITY CONTEMPLATED BY ARTICLE 12 (B) OF THE CONTRACT.'

BY LETTER OF MAY 26, 1952, THE CONTRACTOR'S ATTORNEY DENIED LIABILITY ON ITS BEHALF ON NUMEROUS GROUNDS, THE MOST IMPORTANT OF WHICH WERE DEALT WITH IN THE PORT STAFF JUDGE ADVOCATE'S LETTER OF OCTOBER 13, 1952, TO THE CONTRACTING OFFICE, AS FOLLOWS:

"3. THE CONTRACTOR THROUGH ITS ATTORNEY HAS ATTEMPTED TO DISTORT THE FUNCTION OF MR. VANCE, THE ARMY MARINE SUPERINTENDENT. MR. VANCE WAS NOT PRESENT DURING THE ENTIRE OPERATION. HE DID NOT THINK THE OPERATION WAS HAZARDOUS AS IT WAS COMMON PRACTICE WITH THE STEVEDORES TO PERFORM THIS TYPE OF SHIFT. IN FACT, THE SAME METHOD WAS USED BY THE STEVEDORES IN SHIFTING THE BARGES DURING THE LOADING OF THE "MCGRAW" AND AT NO TIME DID THEY REQUEST PERMISSION OF MR. VANCE TO PERFORM THE OPERATION. THE DAMAGE TO THE BARGE DID NOT RESULT FROM THE COMPLIANCE BY THE STEVEDORES WITH THE SPECIFIC DIRECTIONS OF THE ARMY MARINE SUPERINTENDENT BUT WAS DUE ENTIRELY TO THE FAILURE OF THE STEVEDORES TO EXERCISE PROPER CARE AND TO HAVE THE BARGE UNDER CONTROL OF THE STEVEDORES WITHOUT THE INTERVENTION OF ARMY PERSONNEL. MR. VANCE, THE ARMY MARINE SUPERINTENDENT, CANNOT UNDER ANY CONCEIVABLE CIRCUMSTANCE BE CONSTRUED AS BARGEE OF THE "BC-1866" AND CONSEQUENTLY HAD NO DUTIES INCUMBENT UPON HIM AS SUCH BARGEE. WHEN THE STEVEDORES UNDERTOOK THIS OPERATION WITH THE ABSENCE OF A BARGEE ABOARD THE BARGE IT WAS INCUMBENT UPON THEM TO GIVE THE BARGE SUCH ATTENTION AS A COMPETENT BARGEE WOULD HAVE GIVEN. THE SHIFT COULD HAVE BEEN ACCOMPLISHED WITHOUT DAMAGE IF PROPERLY PERFORMED BY THE STEVEDORES. THE ARMY AND THE VESSEL WERE NOT AT FAULT NOR IN ANY WAY CONTRIBUTED TO THE OCCURRENCE. THE ROTATION OF THE PROPELLER WAS A NEGLIGIBLE FACTOR IN THE ACCIDENT AS DAMAGE WOULD HAVE BEEN CAUSED TO THE ARMY BARGE IN ANY EVENT BECAUSE OF THE MANNER IN WHICH THE SHIFTING OPERATION WAS PERFORMED.

"4. THE ADDED INVESTIGATION MADE BY THIS OFFICE CLEARLY INDICATES THAT THE STEVEDORE CONTRACTOR WAS RESPONSIBLE FOR THE DAMAGE TO THE "BC-1866.' THE ATTORNEY FOR THE INSURANCE CARRIER HAS NOT PRODUCED ANY EVIDENCE TO INDICATE ANYTHING TO THE CONTRARY.'

APPARENTLY, THE CONTRACTOR WAS ADVISED BY THE CONTRACTING OFFICER THAT THE TENTATIVE DECISION TO HOLD IT LIABLE FOR THE DAMAGES INVOLVED UNDER THE CONTRACT AS CONTAINED IN HIS LETTER OF JUNE 21, 1951, WOULD NOT BE ALTERED, FOR IT IS STATED IN THE OPINION OF FEBRUARY 15, 1954, ASBCA NO. 1456, RENDERED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN CONNECTION WITH THE MATTER, THAT THE CONTRACTING OFFICER HAS ASSESSED GENERAL DAMAGES AGAINST THE CONTRACTOR ON ACCOUNT OF THE INJURIES TO THE BARGE IN THE AMOUNT INVOLVED AND THE CONTRACTOR HAD APPEALED TO THE BOARD FROM SUCH ASSESSMENT, AS AUTHORIZED BY ARTICLE 21 OF THE CONTRACT, RELATING TO DISPUTES OF FACT THEREUNDER. ALSO, IT IS STATED THAT THE PARTIES HAD STIPULATED THAT THE APPEAL WAS SUBMITTED UPON THE RECORD, WITHOUT FORMAL HEARING, BUT WITH SOME ADDITIONAL PAPERS FILED, AND THAT BRIEFS HAD BEEN FILED BY BOTH SIDES. IN ITS DECISION, THE BOARD HELD THAT, REGARDLESS OF WHETHER THE DAMAGE TO THE BARGE RESULTED FROM THE NEGLIGENT MANNER IN WHICH THE SHIFTING OPERATION HAD BEEN PERFORMED, DAMAGES WERE NOT ASSESSABLE AGAINST THE CONTRACTOR AS A MATTER OF RIGHT UNDER THE CONTRACT, BUT THAT SUCH RIGHT TO DAMAGES AS THE GOVERNMENT POSSESSED WAS FOUNDED IN TORT AND LAY OUTSIDE THE CONTRACT. THE BASIS FOR THE BOARD'S CONCLUSION WAS THAT THE DUTY OF SHIFTING BARGE NO. 1866-R IN ORDER THAT THE SECOND BARGE MIGHT BE BROUGHT ALONGSIDE THE FRANCIS X FOR PURPOSES OF UNLOADING WAS PLACED UPON THE GOVERNMENT BY THE TERMS OF ARTICLE 1G OF THE CONTRACT; THAT THE CONTRACTOR'S EMPLOYEES HAD UNDERTAKEN THE MOVEMENT ONLY BECAUSE THE GOVERNMENT WAS NOT, AT THE TIME, ABLE TO SEND A TUG TO THE SCENE TO PERFORM THE OPERATION, WHICH HAD BEEN REQUESTED BY THE CONTRACTOR; AND THAT THE OPERATION COULD NOT BE CONSIDERED A PART OF THE CONTRACT WORK FOR THE PERFORMANCE OF WHICH THE CONTRACTOR HAD AGREED TO ASSUME LIABILITY UNDER ARTICLE 12 (A) (1), SUPRA. ACCORDINGLY, THE BOARD CONCLUDED: "WE EXPRESS NO OPINION UPON THE QUESTION OF LIABILITY FOR NEGLIGENCE GENERALLY, NOR FOR NEGLIGENCE ARISING OUT OF SOME RELATIONSHIP NOT CONTEMPLATED BY THE SPECIFIC TERMS OF THIS CONTRACT. THOSE QUESTIONS ARE MATTERS OUTSIDE THE TERMS OF THIS CONTRACT.

"WHAT WE DO SAY IS: IT WAS ERROR TO TRY AND BRING WHAT HAPPENED HERE, UNDER THE SPECIFIC LIABILITY CONTEMPLATED BY ARTICLE 12 (A) (1) QUOTED ABOVE.

"TO THAT EXTENT THE APPEAL IS SUSTAINED.'

BY LETTER OF MARCH 31, 1954, THE PORT STAFF JUDGE ADVOCATE MADE DEMAND UPON THE CONTRACTOR ON BEHALF OF THE CONTRACTING OFFICER FOR PAYMENT OF THE AMOUNT INVOLVED ON THE GROUNDS THAT THE CONTRACTOR HAD BECOME LIABLE TO THE GOVERNMENT IN TORT AS A RESULT OF ITS NEGLIGENCE IN THE MATTER. HOWEVER, IN REPLYING BY LETTER OF JULY 13, 1954, THE CONTRACTOR'S ATTORNEY CONTENDED THAT THE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS WAS RES JUDICATA ON THE QUESTION OF THE CONTRACTOR'S LIABILITY UNDER THE CONTRACT AND THAT THE GOVERNMENT, HAVING ELECTED TO PROCEED UNDER THE CONTRACT, WAS PRECLUDED FROM ASSERTING ANY CLAIM OUTSIDE OF THE CONTRACT AS FOR TORT.

YOU STATE THAT THE QUESTION AT ISSUE, POSED IN PARAGRAPH 2 OF THE MEMORANDUM OF MAY 20, 1955, FROM THE JUDGE ADVOCATE GENERAL TO THE CHIEF OF FINANCE, IS WHETHER THE DEPARTMENT OF THE ARMY IS AUTHORIZED TO WITHHOLD MONEYS TO COVER UNLIQUIDATED TORT CLAIMS IN FAVOR OF THE GOVERNMENT FROM SUMS DUE UNDER A CONTRACT.

SINCE THE QUESTION OF WHETHER THE SHIFTING OF THE BARGE WAS AN OPERATION THE NEGLIGENT PERFORMANCE OF WHICH SUBJECTED THE CONTRACTOR TO LIABILITY UNDER THE CONTRACT IS A QUESTION OF LAW, THE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN THE MATTER IS NOT BINDING ON THE GOVERNMENT. MCWILLIAMS DREDGING COMPANY V. UNITED STATES, 118 C.CLS. WE FIND OURSELVES UNABLE TO AGREE WITH IT. WHILE THE CONTRACTOR MAY HAVE HAD THE RIGHT TO REFUSE TO SHIFT THE BARGE IN VIEW OF THE PROVISIONS OF ARTICLE 1G, SUCH RIGHT WAS NOT EXERCISED. MOREOVER, THE RECORD SHOWS THAT THE CONTRACTOR HAD PERFORMED SIMILAR OPERATIONS UNDER THE CONTRACT, AND THAT THE TIME SPENT BY THE LONGSHOREMEN IN THE OPERATION HERE INVOLVED WAS CHARGED TO THE CONTRACT AT THE SAME EXTRA-LABOR-MANHOUR RATE WHICH THE CONTRACTOR CHARGED FOR THE ENTIRE LOADING OPERATION. IN THE CIRCUMSTANCES, THE SHIFTING OPERATION MUST, IN OUR OPINION, BE REGARDED AS A PART OF THE CONTRACT WORK. THE FACTUAL DETERMINATIONS OF THE CONTRACTING OFFICER WERE NOT REVERSED BY THE BOARD, AND WE DO NOT FIND THAT THEY WERE ARBITRARY OR CAPRICIOUS OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE. IT IS ACCORDINGLY UNNECESSARY TO GO INTO THE QUESTION OF THE GOVERNMENT'S RIGHT TO WITHHOLD PAYMENT OF THE AMOUNT INVOLVED AS REPRESENTING AN UNLIQUIDATED TORT CLAIM. IN THAT CONNECTION, HOWEVER, ATTENTION IS INVITED TO 18 COMP. GEN. 799. AS A CONTRACT CLAIM, THE AMOUNT OF WHICH IS NOT IN DISPUTE, THE DAMAGE ASSESSED BY THE CONTRACTING OFFICER IS CLEARLY FOR SET-OFF AGAINST AMOUNTS DUE THE CONTRACTOR UNDER THE INSTANT, OR OTHER, UNDER THE INSTANT, OR OTHER, CONTRACTS UNDER WELL- ESTABLISHED PRINCIPLES OF LAW. UNITED STATES V. MUNSAY TRUST CO., 332 U.S. 234, 239.

ACCORDINGLY, THE VOUCHER, TOGETHER WITH SUPPORTING PAPERS, IS RETURNED HEREWITH AND YOU ARE ADVISED THAT PAYMENT THEREON IS NOT AUTHORIZED.