B-141093, NOV. 6, 1959

B-141093: Nov 6, 1959

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INC.: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15. ARE FULLY SET FORTH IN THE CERTIFICATE OF SETTLEMENT AND NEED NOT BE REPEATED HERE. YOU ALLEGE THAT THE MATERIAL WAS WEIGHED BY YOUR CONSIGNEE ON OCTOBER 23. THAT THE WEIGHT SHORTAGE IS EVIDENCED BY PHOTOSTATS OF WEIGHT TICKETS FURNISHED IN SUPPORT OF YOUR CLAIM. YOU STATE THAT SINCE THE GOVERNMENT'S ADVERTISED WEIGHT WAS ONLY AN ESTIMATE. SHOWS THAT MATERIAL WEIGHING 602 POUNDS GROSS AND 22 POUNDS TARE WAS RELEASED TO THE ADLEY EXPRESS COMPANY ON JULY 23. A CERTIFICATION OF A RESPONSIBLE SALVAGE PROCESSOR APPEARS ON THE FACE OF THAT DOCUMENT CERTIFYING THAT THE "QUANTITY IS THAT FOR WHICH THE BUYER HAS PAID.'. THE CARRIER REPORTED THAT THE SHIPMENT WAS DELIVERED TO YOUR CONSIGNEE ON JULY 24.

B-141093, NOV. 6, 1959

TO ACETO CHEMICAL CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1959, REQUESTING REVIEW OF SETTLEMENT CERTIFICATE DATED OCTOBER 13, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADJUSTMENT IN THE PURCHASE PRICE FOR 580 POUNDS OF TUNGSTEN CARBIDE BLANKS PURCHASED FROM THE DEPARTMENT OF THE ARMY, WATERTOWN ARSENAL, UNDER INVITATION FOR BIDS NO. 19-066-S-58-38 DATED JUNE 6, 1958.

THE CIRCUMSTANCES SURROUNDING THE ALLEGED SHORTAGE IN WEIGHT OF THE MATERIAL WHEN FINALLY DELIVERED TO YOUR CONSIGNEE, THE EDWARD S. MYERS COMPANY, ARE FULLY SET FORTH IN THE CERTIFICATE OF SETTLEMENT AND NEED NOT BE REPEATED HERE. YOU ALLEGE THAT THE MATERIAL WAS WEIGHED BY YOUR CONSIGNEE ON OCTOBER 23, 1958, AND THAT THE WEIGHT SHORTAGE IS EVIDENCED BY PHOTOSTATS OF WEIGHT TICKETS FURNISHED IN SUPPORT OF YOUR CLAIM. YOU STATE THAT SINCE THE GOVERNMENT'S ADVERTISED WEIGHT WAS ONLY AN ESTIMATE, THE ACTUAL WEIGHT TICKETS SHOULD BE CONCLUSIVE AS TO THE EXISTENCE OF A WEIGHT SHORTAGE. WE DO NOT, HOWEVER, AGREE THAT THE WEIGHT TICKETS EXECUTED FOR YOUR CONSIGNEE UPON RELEASE OF THE MATERIAL FROM A WAREHOUSE THREE MONTHS AFTER THE DELIVERY OF THE MATERIAL CONVINCINGLY ESTABLISHES THE VALIDITY OF YOUR CLAIM.

THE ARMY SHIPPING DOCUMENT, COVERING THE SHIPMENT OF ITEM 23 TO YOU, SHOWS THAT MATERIAL WEIGHING 602 POUNDS GROSS AND 22 POUNDS TARE WAS RELEASED TO THE ADLEY EXPRESS COMPANY ON JULY 23, 1958. A CERTIFICATION OF A RESPONSIBLE SALVAGE PROCESSOR APPEARS ON THE FACE OF THAT DOCUMENT CERTIFYING THAT THE "QUANTITY IS THAT FOR WHICH THE BUYER HAS PAID.' THE CARRIER REPORTED THAT THE SHIPMENT WAS DELIVERED TO YOUR CONSIGNEE ON JULY 24, 1958,"WITHOUT EXCEPTION.'

THEREFORE, IT IS ENTIRELY PROPER TO CONCLUDE THAT ANY SHORTAGE THAT MAY HAVE EXISTED AT THE TIME THE MATERIAL WAS RELEASED FROM THE WAREHOUSE COULD HAVE OCCURRED AFTER TITLE HAD PASSED TO YOU. IT IS UNREASONABLE TO ATTRIBUTE ANY WEIGHT SHORTAGE TO THE GOVERNMENT SOLELY ON THE BASIS OF WEIGHT TICKETS EXECUTED LONG AFTER THE MATERIAL HAD BEEN DELIVERED TO YOU AND PLACED IN A PUBLIC WAREHOUSE, ESPECIALLY WHERE THE EVIDENCE OF RECORD REASONABLY ESTABLISHED THAT THE CORRECT WEIGHT WAS RECEIVED BY THE CARRIER AND DELIVERED TO YOU WITHOUT EXCEPTION.

ACCORDINGLY, THE SETTLEMENT CERTIFICATE OF OCTOBER 13, 1959, IS SUSTAINED. IN THE EVENT YOU BELIEVE IT DESIRABLE TO PURSUE THIS CLAIM FURTHER, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF 28 U.S.C. 1346 AND 1491 CONCERNING THE ORIGINAL JURISDICTION OF THE UNITED STATES DISTRICT COURTS AND THE COURT OF CLAIMS.