B-127613, JUL. 9, 1956

B-127613: Jul 9, 1956

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OFFICE OF COMMERCIAL COUNSELOR: REFERENCE IS MADE TO YOUR LETTER OF APRIL 22. THE RECORD ESTABLISHED THAT THE AMOUNT CLAIMED IS ONE OF TWO ITEMS PREVIOUSLY PRESENTED TO THE ADMINISTRATIVE OFFICE FOR PAYMENT. SUCH ACTION WAS SUSTAINED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS BY DECISION NO. 793. CLAIM FOR THIS AMOUNT ALSO WAS DISALLOWED BY THE CLAIMS DIVISION OF OUR OFFICE IN A SETTLEMENT DATED NOVEMBER 25. WITH REGARD TO THE MERITS OF THE CLAIMANT'S DEMAND IT IS CLEAR THAT THE ITEM DOES NOT CONSTITUTE A CHARGE FOR SERVICES RENDERED. IT IS REPORTED THAT APPROXIMATELY 110. 000 TONS WERE DELIVERED TO ITS BARGES FOR TRANSPORTATION TO GERMANY. THE INSTANT CLAIM IS FOR 10 PERCENT OF THE CONTRACT SHIPPING CHARGES FOR APPROXIMATELY 50.

B-127613, JUL. 9, 1956

TO BELGIAN EMBASSY, OFFICE OF COMMERCIAL COUNSELOR:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1955, ADDRESSED TO THE OFFICE OF CHIEF OF FINANCE, UNITED STATES ARMY, AND WRITTEN ON BEHALF OF S. A. DE TRANSPORTS NAUTILUS OF ANTWERP, BELGIUM, RELATIVE TO ITS CLAIM FOR $7,601.03, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE UNDER CONTRACT NO. W-EC-91-517 CNG (431), DATED DECEMBER 10, 1948, COVERING THE TRANSPORTATION OF A QUANTITY OF FERTILIZER FROM SEVERAL POINTS IN BELGIUM TO DUISBURG, GERMANY.

THE RECORD ESTABLISHED THAT THE AMOUNT CLAIMED IS ONE OF TWO ITEMS PREVIOUSLY PRESENTED TO THE ADMINISTRATIVE OFFICE FOR PAYMENT, AND DENIED. SUCH ACTION WAS SUSTAINED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS BY DECISION NO. 793, DATED NOVEMBER 30, 1951. CLAIM FOR THIS AMOUNT ALSO WAS DISALLOWED BY THE CLAIMS DIVISION OF OUR OFFICE IN A SETTLEMENT DATED NOVEMBER 25, 1952.

WITH REGARD TO THE MERITS OF THE CLAIMANT'S DEMAND IT IS CLEAR THAT THE ITEM DOES NOT CONSTITUTE A CHARGE FOR SERVICES RENDERED. THE CONTRACT PROVIDED FOR THE TRANSPORTATION BY THE CLAIMANT OF 160,000 TONS OF FERTILIZER AT THE UNIT RATE STIPULATED IN THE AGREEMENT. IT IS REPORTED THAT APPROXIMATELY 110,000 TONS WERE DELIVERED TO ITS BARGES FOR TRANSPORTATION TO GERMANY. THE INSTANT CLAIM IS FOR 10 PERCENT OF THE CONTRACT SHIPPING CHARGES FOR APPROXIMATELY 50,000 TONS OF FERTILIZER WHICH WERE NOT DELIVERED TO THE CARRIER FOR SHIPMENT.

THE CARRIER DOES NOT ALLEGE, NOR HAS ANY SUBSTANTIAL EVIDENCE BEEN OFFERED TO ESTABLISH THAT IT HAS BEEN DAMAGED TO THE EXTENT OF THE AMOUNT DEMANDED BY REASON OF HAVING EXPENDED ADDITIONAL SUMS OF MONEY. HENCE, IT MUST BE CONCLUDED THAT THE CLAIM IS ONE FOR LOSS OF ANTICIPATED PROFITS, AS ORIGINALLY DESIGNATED BY THE CARRIER IN ITS CLAIM PRESENTED TO THE DEPARTMENT OF THE ARMY. PROFITS MAY BE RECOVERED UPON A BREACH OF CONTRACT WHERE A SOUND BASIS CAN BE FOUND UPON WHICH TO ESTIMATE THEM WITH A REASONABLE DEGREE OF CERTAINTY BASED UPON SUBSTANTIAL EVIDENCE, AND ENTIRELY FREE FROM SPECULATION AND CONJECTURE. HERE, THE CLAIM IS DEVOID OF SUCH SUPPORT.

IN VIEW OF THE FOREGOING THE ACTION TAKEN IN SETTLEMENT OF NOVEMBER 25, 1952, DISALLOWING THE CONTRACTOR'S CLAIM, MUST BE SUSTAINED.