B-142738, MAY 13, 1960

B-142738, MAY 13, 1960

TO THE HONORABLE L. H. HEWITT, COMMISSIONER, INTERNATIONAL BOUNDARY AND WATER COMMISSION:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 14, 1960, WITH ENCLOSURES, SUBMITTING CERTAIN QUESTIONS FOR OUR DECISION REGARDING THE PROPRIETY OF SETTLEMENT OF THE TRANSACTION COVERED BY PURCHASE ORDERS NOS. 8299 AND 432 ISSUED BY THE INTERNATIONAL BOUNDARY AND WATER COMMISSION TO SEAL, INC., SHELTON, CONNECTICUT, UNDER CONTRACT NO. GS-00S-20681.

PURCHASE ORDERS NOS. 8299 AND 432 WERE ISSUED TO SEAL, INC., ON JUNE 11, 1959, AND AUGUST 26, 1959, RESPECTIVELY, FOR THE PROCUREMENT OF FOUR ROLLS OF CHARTEX DRY MOUNTING CLOTH IN THE TOTAL AMOUNT OF $135, DELIVERY POINT, SHELTON, CONNECTICUT, SHIPMENT TO BE MADE ON GOVERNMENT BILLS OF LADING TO EL PASO, TEXAS. UNDER BOTH ORDERS THE MOUNTING CLOTH REPORTEDLY WAS DELIVERED TO THE RAILWAY EXPRESS AGENCY, INC., ON SEPTEMBER 11, 1959, BUT TO DATE THE SHIPMENT HAS NOT BEEN RECEIVED BY THE INTERNATIONAL BOUNDARY AND WATER COMMISSION. THE QUESTIONS PRESENTED BY YOU ARE, SHOULD PAYMENT BE MADE TO SEAL, INC., EVEN THOUGH THE MOUNTING CLOTH HAS NOT BEEN RECEIVED. ALSO, SHOULD DEDUCTIONS BE MADE FROM SUBSEQUENT BILLINGS OF THE RAILWAY EXPRESS AGENCY, INC., IN CONNECTION WITH THE MATTER AND, IF SO, IN WHAT AMOUNT.

IT IS REPORTED, AND THE MEMORANDUM COPIES OF THE BILLS OF LADING REFLECT, THAT THE MOUNTING CLOTH COVERED BY BOTH PURCHASE ORDERS WAS DELIVERED BY SEAL, INC., TO THE RAILWAY EXPRESS AGENCY, INC., ON SEPTEMBER 11, 1959, FOR SHIPMENT TO EL PASO. THEREFORE, CONSIDERING THE DELIVERY POINT SPECIFIED AND THE FACT THAT SHIPMENT WAS TO GO FORWARD ON GOVERNMENT BILLS OF LADING TOGETHER WITH THE FACT THAT THERE IS NOTHING CONTAINED IN THE TERMS OF EITHER PURCHASE ORDER TO PRECLUDE TITLE FROM PASSING TO THE GOVERNMENT UPON DELIVERY OF THE MERCHANDISE TO THE CARRIER, IT APPEARS THAT THE GOVERNMENT WAS TO ASSUME THE RISKS OF TRANSPORTATION AND THERE IS NO REASON WHY PAYMENT FOR THE GOODS SHOULD BE WITHHELD BECAUSE THE EXPRESS AGENCY LOST THE GOODS IN TRANSIT. ACCORDINGLY, PAYMENT MAY BE MADE TO SEAL, INC., ON THE BASIS THAT THE CORPORATION COMPLETELY PERFORMED ITS OBLIGATION UNDER THE PURCHASE ORDERS.

REGARDING SETTLEMENT OF THE GOVERNMENT'S TRANSPORTATION CLAIM IN THE MATTER, SINCE THE RECORD BEFORE US CONTAINS NEITHER THE ORIGINAL GOVERNMENT BILLS OF LADING NOR ANY STATEMENT AS TO WHETHER OR NOT THE EXPRESS AGENCY IS CLAIMING, OR HAS BEEN PAID, ANY PART OF THE TRANSPORTATION CHARGES ON THE LOST GOODS, AND SINCE YOU STATE THAT CONSIDERABLE TIME WOULD BE REQUIRED FOR THE COMMISSION TO EFFECT COLLECTION OF THE AMOUNT PROPERLY FOUND DUE, THIS PART OF THE CASE SHOULD BE REFERRED TO THE TRANSPORTATION DIVISION, GENERAL ACCOUNTING OFFICE, FOR DIRECT SETTLEMENT AND THE EXPRESS AGENCY ADVISED OF SUCH REFERENCE. FORWARDING THE MATTER TO THE TRANSPORTATION DIVISION, THE ORIGINAL BILLS OF LADING AND PURCHASE ORDERS SHOULD BE FURNISHED TOGETHER WITH A COMPLETE STATEMENT OF ALL ATTENDING FACTS. IN THE PRESENT SITUATION IT WOULD NOT SEEM PROPER TO PAY THE TRANSPORTATION CHARGES TO THE RAILWAY EXPRESS AGENCY, INC., SINCE THE TRANSPORTATION SERVICES WERE NOT RENDERED.