B-127139, JUL. 10, 1956

B-127139, JUL. 10, 1956

TO NYLOS TRADING CO., INC.:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 28 AND JUNE 1, 1956, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR DECISION DATED MARCH 26, 1956, TO YOU, WHICH SUSTAINED THE SETTLEMENT OF YOUR CLAIMS WHEREIN YOU WERE ALLOWED THE SUM OF $2,085.40 AND THERE WAS DISALLOWED THE SUM OF $5,017.67, REPRESENTING ADDITIONAL COSTS ALLEGED TO BE DUE ON ACCOUNT OF THE FAILURE OF THE GOVERNMENT TO GIVE TIMELY NOTICE TO THE SHIPMASTERS OF THE S.S. FIRENZE AND S.S. NORLANDA WITH REGARD TO THE PORTS OF DISCHARGE OF THE VESSELS' CARGOES.

YOU CONTEND THAT YOUR FAILURE TO ADVISE THE SHIPMASTERS OF THE PARTS OF DISCHARGE WAS THE RESULT OF YOUR INTERPRETATION OF THE CONTRACT AND THAT THE CONCLUSION REACHED BY YOU WAS CONCURRED IN BY THE DISTRICT ENGINEER, NEW YORK DISTRICT, WHO WAS DESIGNATED IN THE CONTRACT AS THE CONTRACTING OFFICER'S AUTHORIZED REPRESENTATIVE. WHILE IT MAY BE, AS YOU CONTEND, THAT THE MESSAGE FROM "KCAC, KOREA, ON OCTOBER 10, 1953," WAS AMBIGUOUS, NEVERTHELESS, YOU ADMIT THAT THERE WAS NOTHING IN THE CONTRACT WHICH REQUIRED THE GOVERNMENT TO NOTIFY THE SHIPMASTERS DIRECTLY AS TO THE PORT OF DISCHARGE. PRIOR TO THIS MESSAGE, YOU WERE NOTIFIED BY THE GOVERNMENT WITHIN THE REQUIRED TIME AS TO THE PORT OF DISCHARGE AND YOU WERE REQUESTED TO ADVISE THE SHIPMASTERS ACCORDINGLY. THE RECORD DOES NOT SHOW AND YOU DO NOT CONTEND THAT THE DISTRICT ENGINEER OF THE NEW YORK DISTRICT ADVISED YOU NOT TO TAKE NOTICE OF THIS INSTRUCTION. IN THIS REGARD IT MAY BE POINTED OUT THAT THE DISTRICT ENGINEER, NEW YORK DISTRICT, WAS DESIGNATED AS THE CONTRACTING OFFICER'S REPRESENTATIVE FOR THE PURPOSE OF ADMINISTERING THE CONTRACT WITH RESPECT TO INSPECTION, ACCEPTANCE AND DOCUMENTATION FUNCTIONS ONLY.

IN YOUR RECENT LETTER OF JUNE 1, 1956, YOU STATE THAT YOU RECEIVED ONLY TWO CABLES FROM THE KOREA CIVIL ASSISTANCE COMMAND IN REGARD TO THE CONTRACT HERE INVOLVED, NAMELY, THE CABLES OF OCTOBER 10 AND 15, 1953. ALSO, YOU DENY RECEIPT OF A CABLE OF SEPTEMBER 9, 1953, SENT BY THE COMMAND TO YOU AND ADVISING YOU TO NOTIFY THE MASTER OF THE S.S. FIRENZE THAT THE PART OF DISCHARGE WOULD BE INCHON. WITH REGARD TO THAT SHIP, IT MAY BE STATED THAT THE SUCCESSOR CONTRACTING OFFICER HAS REPORTED THAT ON OCTOBER 15, 1953, THE COMMAND RADIOED THE MASTER "IN REPLY TO HIS WIRE" AND THAT THE FOLLOWING MESSAGE WAS SENT: "CONFIRMING OUR SHIP, IT MAY BE STATED THAT THE SUCCESSOR CONTRACTING OFFICER HAS REPORTED THAT ON OCTOBER 15, 1953, THE COMMAND RADIOED THE MASTER "IN REPLY TO HIS WIRE" AND THAT THE FOLLOWING MESSAGE WAS SENT: "CONFIRMING OUR INSTRUCTIONS TO CHARTERERS PORT OF DISCHARGE INCHON.' THE MASTER, HOWEVER, STATED THAT HE HAS RADIOED ON OCTOBER 13, 16, AND 17, 1953, AND HAD REQUESTED TO BE ADVISED AS TO THE PORT OF DISCHARGE BUT THAT HE DID NOT RECEIVE ANY ANSWER TO THESE REQUESTS. THUS, IN REGARD TO THE CLAIM FOR APPROXIMATELY $4,000 ALLEGED TO BE DUE FOR ADDITIONAL COSTS INCURRED BECAUSE OF THE FAILURE OF THE GOVERNMENT TO GIVE TIMELY NOTICE TO THE SHIPMASTER AS TO THE PORT OF DISCHARGE FOR THE S.S. FIRENZE, THE ISSUE IS WHETHER YOU RECEIVED THE CABLEGRAM OF SEPTEMBER 9, 1953, OR THE SHIPMASTER RECEIVED THE RADIOGRAM OF OCTOBER 14, 1953.

AS TO THE SHIPMENT ON THE S.S. NORLANDA, A SIMILAR ISSUE IS PRESENTED. YOU ADMIT RECEIPT OF THE CABLEGRAM OF OCTOBER 15, 1953, ADVISING YOU THAT THE DISCHARGE PORT WOULD BE MOKPO ALTHOUGH YOU FAILED TO NOTIFY THE SHIPMASTER ACCORDINGLY. ALSO, THE KOREA CIVIL ASSISTANCE COMMAND HAS REPORTED THAT UPON RECEIVING A RADIO MESSAGE ON NOVEMBER 12, 1953, FROM THE SHIPMASTER AS TO WHETHER TO PROCEED TO MOKPO OR PUSAN, THE MASTER WAS IMMEDIATELY NOTIFIED TO PROCEED TO MOKPO. THE RECEIPT OF THE LATTER MESSAGE ALSO IS DENIED BY THE MASTER. THE ADMINISTRATIVE OFFICE RECOMMENDED DISALLOWANCE OF YOUR CLAIM (1) BECAUSE THERE WAS CONFLICTING EVIDENCE AS TO WHETHER THE REFERRED-TO MESSAGES BETWEEN THE RECEIVING AGENCY IN KOREA AND THE SHIPMASTERS WERE SENT AND RECEIVED; (2) BECAUSE OF THE FACT THAT IT WAS BELIEVED THAT YOU WERE PROPERLY ADVISED AS TO THE DISCHARGE PORT IN EACH OF THE TWO CASES; AND (3) BECAUSE THE CONTRACT PROVISIONS DO NOT SPECIFICALLY REQUIRE THAT THE GOVERNMENT NOTIFY THE SHIPMASTERS OF THE PROPER DISCHARGE PORT. EVEN CONSIDERING THE MATTER IN THE LIGHT MOST FAVORABLE TO YOU, THE CLAIM IS OF SUCH DOUBTFUL VALIDITY IN FACT AND LAW AS TO WARRANT OUR OFFICE TO DENY PAYMENT. SEE 18 COMP. GEN. 111. THE LETTERS OF MARCH 28 AND JUNE 1, 1956, DO NOT CONTAIN ANY MATERIAL DATA NOT PREVIOUSLY CONSIDERED OR WHICH WOULD REQUIRE OR JUSTIFY A CONCLUSION DIFFERENT FROM THAT PREVIOUSLY REACHED IN THE MATTER.