B-140889, OCT. 23, 1959

B-140889: Oct 23, 1959

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THE CLAIM WAS SUBMITTED BY YOU AS THE EXCLUSIVE EXPORT REPRESENTATIVE OF REEVES INSTRUMENT CORPORATION WHO OWNED THE COMPUTER IN QUESTION. THE RECORD SHOWS THAT THE COMPUTER WAS INITIALLY LOANED TO THE OFFICE OF INTERNATIONAL TRADE FAIRS FOR EXHIBIT AT THE 1955 HANOVER TRADE FAIR IN GERMANY. THE INVITATION WAS ACCEPTED UPON THE CONDITION THAT THE GOVERNMENT WOULD RETURN THE COMPUTER TO GERMANY EARLY IN JUNE 1955 IN ORDER TO COMPLY WITH ARRANGEMENTS WHICH YOUR GERMAN AND FRENCH REPRESENTATIVES HAD MADE FOR ITS USE BY THE TECHNICAL INSTITUTE OF DARMSTADT. THAT THE COMPUTER WAS THEN RELEASED TO YOUR REPRESENTATIVES FOR DEMONSTRATION PURPOSES IN GERMANY. THE COMPUTER WAS RETURNED TO REEVES INSTRUMENT CORPORATION.

B-140889, OCT. 23, 1959

TO HUDSON RANDALL INTERNATIONAL:

YOUR LETTER DATED SEPTEMBER 17, 1959, PROTESTS OUR SETTLEMENT OF AUGUST 13, 1959, WHICH DISALLOWED YOUR CLAIM FOR $1,847.31, REPRESENTING THE COST OF REPAIRING ONE REEVES TYPE C-301 ANALOG COMPUTER LOANED TO THE OFFICE OF INTERNATIONAL TRADE FAIRS, OFFICE OF THE SECRETARY, DEPARTMENT OF COMMERCE, FOR EXHIBITION PURPOSES IN 1955. THE CLAIM WAS SUBMITTED BY YOU AS THE EXCLUSIVE EXPORT REPRESENTATIVE OF REEVES INSTRUMENT CORPORATION WHO OWNED THE COMPUTER IN QUESTION.

THE RECORD SHOWS THAT THE COMPUTER WAS INITIALLY LOANED TO THE OFFICE OF INTERNATIONAL TRADE FAIRS FOR EXHIBIT AT THE 1955 HANOVER TRADE FAIR IN GERMANY. MR. H. D. RANDALL OF YOUR ORGANIZATION AND MR. E. LAIVO OF REEVES INSTRUMENT CORPORATION WENT TO HANOVER AND SET UP THE EXHIBIT. SUBSEQUENTLY, THE OFFICE OF INTERNATIONAL TRADE FAIRS INVITED YOU TO DISPLAY THE COMPUTER AT THE 1955 PARIS, FRANCE, TRADE FAIR FROM MAY 14, 1955, TO MAY 30, 1955. THE INVITATION WAS ACCEPTED UPON THE CONDITION THAT THE GOVERNMENT WOULD RETURN THE COMPUTER TO GERMANY EARLY IN JUNE 1955 IN ORDER TO COMPLY WITH ARRANGEMENTS WHICH YOUR GERMAN AND FRENCH REPRESENTATIVES HAD MADE FOR ITS USE BY THE TECHNICAL INSTITUTE OF DARMSTADT. THE RECORD SHOWS THAT MR. H. D. RANDALL ACCOMPANIED THE COMPUTER TO THE PARIS FAIR; THAT THE GOVERNMENT RETURNED THE COMPUTER TO GERMANY AT THE CONCLUSION OF THE PARIS FAIR; AND THAT THE COMPUTER WAS THEN RELEASED TO YOUR REPRESENTATIVES FOR DEMONSTRATION PURPOSES IN GERMANY. THE COMPUTER WAS RETURNED TO REEVES INSTRUMENT CORPORATION, MINEOLA, NEW YORK, IN SEPTEMBER 1957.

BY LETTER DATED FEBRUARY 3, 1958, YOU INFORMED THE OFFICE OF INTERNATIONAL TRADE FAIRS THAT SOMETIME AFTER REEVES RECEIVED THE COMPUTER THEY UNPACKED IT IN ORDER TO CHECK WHAT DAMAGE IT MIGHT HAVE SUFFERED IN GERMANY AT THE TRADE FAIR AND IN RETURN TRANSIT TO THE UNITED STATES, AND IT WAS NOTED THAT IT HAD RECEIVED CONSIDERABLE DAMAGE AND WOULD HAVE TO BE OVERHAULED BEFORE IT COULD BE OFFERED FOR SALE. ON APRIL 6, 1959, YOU SUBMITTED A CLAIM TO THE OFFICE OF INTERNATIONAL TRADE FAIRS IN THE AMOUNT OF $1,847.31, COVERING THE COST TO REEVES OF REPAIRING THE COMPUTER.

IT APPEARS FROM YOUR LETTER OF FEBRUARY 3, 1958, THAT YOU WERE UNDER THE IMPRESSION THAT REEVES COULD BE REIMBURSED THE COST OF REPAIRING THE COMPUTER ON THE BASIS THAT THE GOVERNMENT HAD INSURED THE COMPUTER. HOWEVER, THE RECORD SHOWS THAT THE GOVERNMENT DID NOT INSURE THE COMPUTER, AND THERE IS NO INDICATION THAT SUCH INSURANCE WAS CONTEMPLATED OR THAT EITHER YOU OR REEVES INSTRUMENT CORPORATION REQUESTED THAT INSURANCE BE PROCURED.

THE RECORD DOES NOT ESTABLISH EITHER THE CAUSE OF THE DAMAGE TO THE COMPUTER OR HOW AND WHEN SUCH DAMAGE WAS INCURRED. HOWEVER, THE RECORD INDICATES THAT NO DAMAGE OTHER THAN NORMAL WEAR AND TEAR OCCURRED TO THE COMPUTER WHILE IT WAS ON DISPLAY AT THE HANOVER AND PARIS FAIRS. ALSO, WE MUST ASSUME THAT THE COMPUTER WAS IN SATISFACTORY CONDITION WHEN IT WAS RETURNED TO GERMANY, IN VIEW OF THE FACT THAT AFTER THE COMPUTER WAS RELEASED TO YOUR REPRESENTATIVES AND WAS NO LONGER IN THE CUSTODY OF THE OFFICE OF INTERNATIONAL TRADE FAIRS IT WAS USED FOR DEMONSTRATION PURPOSES IN GERMANY.

A BAILOR-BAILEE RELATIONSHIP EXISTED BETWEEN THE REEVES INSTRUMENT CORPORATION AND THE GOVERNMENT UNDER A BAILMENT FOR THE SOLE BENEFIT OF THE BAILEE (THE GOVERNMENT). THE BAILEE UNDER SUCH A BAILMENT IS REQUIRED TO EXERCISE THE HIGHEST DEGREE OF CARE; HOWEVER, IN THE ABSENCE OF EXPRESS AGREEMENT, THE BAILEE IS NOT AN INSURER OF THE BAILED PROPERTY AND IS NOT RESPONSIBLE FOR DAMAGES OR LOSSES ARISING FROM INEVITABLE ACCIDENT OR UNDER CIRCUMSTANCES WHICH MIGHT NOT REASONABLY BE FORESEEN AND PROVIDED AGAINST OR FOR NORMAL WEAR AND TEAR. UNITED STATES V. MCINTOSH, 117 F. 963; CAMERON V. BISSONETTE, 152 A.87; FORD MOTOR CO. V. NATIONAL FIRE INSURANCE CO. OF HARTFORD, CONN., 285 S.W. 905; 25 COMP. GEN. 539.

IN THE INSTANT CASE, THERE IS NO EVIDENCE TO SHOW THAT THE DAMAGE TO THE COMPUTER WAS PROXIMATELY CAUSED BY NEGLIGENCE OF THE GOVERNMENT IN FAILING TO EXERCISE THE HIGH DEGREE OF CARE REQUIRED. ALSO, THERE WAS NO AGREEMENT EITHER EXPRESSED OR IMPLIED THAT THE GOVERNMENT ACT AS AN INSURER OF THE PROPERTY BAILED.

THEREFORE, IN THE ABSENCE OF EVIDENCE UPON WHICH GOVERNMENT LIABILITY COULD BE BASED, THE SETTLEMENT OF AUGUST 13, 1959, IS SUSTAINED.