B-142812, DEC. 19, 1960

B-142812: Dec 19, 1960

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TO THE SECRETARY OF AGRICULTURE: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 30. WAS RECEIVED HERE FROM YOUR DEPARTMENT FOR SETTLEMENT. THE CLAIM WAS ALLOWED IN THE AMOUNT OF $6. THE SETTLEMENT WAS BASED ON THE CONCLUSION THAT. THE FROZEN TURKEYS WERE FURNISHED AND DELIVERED TO THE ICED CAR USED IN SHIPMENT STRICTLY IN ACCORDANCE WITH THE PROVISIONS OF THE CONTRACT AND THAT THERE WAS NO FINDING OR INDICATION THAT THE CONTRACTOR OR THE CARRIER FAILED TO HAVE THE TURKEYS PROPERLY ICED AFTER THE TURKEYS WERE PLACED INTO THE CAR AND BEFORE THE SHIPMENT WAS PLACED IN THE HANDS OF THE GOVERNMENT AT DESTINATION. THE BILL OF LADING SHOWS THAT THE CAR WAS CONSIGNED TO "USDA. SHORE IS STATED IN YOUR DEPARTMENT'S LETTER OF SEPTEMBER 30.

B-142812, DEC. 19, 1960

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 30, 1960, FROM THE CHIEF, FISCAL BRANCH, BUDGET AND FINANCE DIVISION, AGRICULTURAL MARKETING SERVICE, FURNISHING FURTHER INFORMATION RELATIVE TO DAMAGE TO A SHIPMENT OF FROZEN TURKEYS SOLD BY J. S. EDMUNDS AND SONS, CLOVER, SOUTH CAROLINA, TO YOUR DEPARTMENT, PURSUANT TO ORDER NO. ALNA 55277 DATED SEPTEMBER 30, 1959, UNDER CONTRACT NO. 12-25-010-1288 AND REQUESTING OUR VIEWS AS TO WHETHER THE GOVERNMENT HAS A CLAIM AGAINST ANY OF THE PARTIES INVOLVED.

WITH A LETTER DATED APRIL 28, 1960, THE CLAIM OF J. S. EDMUNDS AND SONS IN THE AMOUNT OF $10,791.71, COVERING THE CONTRACT PRICE OF THE TURKEYS PLUS TRANSPORTATION CHARGES, WAS RECEIVED HERE FROM YOUR DEPARTMENT FOR SETTLEMENT. BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MAY 18, 1960, THE CLAIM WAS ALLOWED IN THE AMOUNT OF $6,264.97, THAT BEING THE AMOUNT OF THE CLAIM LESS THE NET PROCEEDS OF THE SALE OF THE TURKEYS OFFERED TO THE SHIPPER BY THE CARRIER. THE SETTLEMENT WAS BASED ON THE CONCLUSION THAT, INSOFAR AS INDICATED BY THE FILE, THE FROZEN TURKEYS WERE FURNISHED AND DELIVERED TO THE ICED CAR USED IN SHIPMENT STRICTLY IN ACCORDANCE WITH THE PROVISIONS OF THE CONTRACT AND THAT THERE WAS NO FINDING OR INDICATION THAT THE CONTRACTOR OR THE CARRIER FAILED TO HAVE THE TURKEYS PROPERLY ICED AFTER THE TURKEYS WERE PLACED INTO THE CAR AND BEFORE THE SHIPMENT WAS PLACED IN THE HANDS OF THE GOVERNMENT AT DESTINATION.

THE CONTRACT PROVIDED THAT THE PRICE SHOULD BE F.O.B. SHIPPING POINT BUT THAT DELIVERY SHOULD BE AT DESTINATION. THE DEPARTMENT'S NOTICE TO DELIVER DATED SEPTEMBER 30, 1959, SPECIFIED THAT THE SHIPMENT SHOULD BE CONSIGNED TO "USDA, C/O COURTENAY BATEMAN, STATE SUPV. FOOD DISTR.' AND THAT NOTIFICATION BE SENT "C/O F. W. SHORE.' THE BILL OF LADING SHOWS THAT THE CAR WAS CONSIGNED TO "USDA, C/O MR. F. W. SHORE, C/O COURTNEY BATEMAN, STATE SUPV. FOOD DISTR.' MR. BATEMAN REPRESENTED THE SOUTH CAROLINA DEPARTMENT OF EDUCATION. MR. SHORE IS STATED IN YOUR DEPARTMENT'S LETTER OF SEPTEMBER 30, 1960, TO HAVE BEEN SUPERVISOR, COLUMBIA CITY SCHOOL LUNCH PROGRAM.

THE FILE SHOWS THAT THE CAR WAS ICED AT COLUMBIA, SOUTH CAROLINA, AT 11 A.M., OCTOBER 4, 1959, AND LOADED BY THE CONTRACTOR AT CLOVER, SOUTH CAROLINA, OCTOBER 5, LOADING BEING COMPLETED AT APPROXIMATELY 4 P.M. THE LOADED CAR REMAINED ON THE SIDING UNTIL OCTOBER 6, THERE BEING NO EARLIER THROUGH SOUTHBOUND TRAIN. IT WAS THEN MOVED TO COLUMBIA, ARRIVING THERE AT SOME TIME ON OCTOBER 7. THE CAR WAS RE ICED AT COLUMBIA AT 9 P.M., OCTOBER 7. ON OCTOBER 8 IT WAS PLACED ON A TEAMTRACK FOR UNLOADING AND MR. SHORE WAS SO NOTIFIED AT APPROXIMATELY 10 A.M., ON THAT DATE. IT IS STATED IN YOUR DEPARTMENT'S LETTER OF SEPTEMBER 30, 1960, THAT SINCE SUCH NOTICE DID NOT GIVE SUFFICIENT TIME FOR UNLOADING ON OCTOBER 8, MR. SHORE ARRANGED FOR RECIPIENT AGENCIES SHARING IN THE CAR TO PREPARE FOR UNLOADING THE CAR ON THE MORNING OF OCTOBER 9. THE CAR WAS OPENED AT 8:30 A.M. OCTOBER 9 BY THE SOUTH CAROLINA DEPARTMENT OF EDUCATION AND UNLOADING STARTED. AT APPROXIMATELY 10 A.M. IT WAS NOTICED THAT SOME OF THE TURKEYS HAD THAWED, UNLOADING WAS HALTED, AND 38 OF THE 39 BOXES WHICH HAD BEEN UNLOADED WERE RELOADED INTO THE CAR. THERE BEING NO FEDERAL-STATE INSPECTOR AVAILABLE, DR. CHASTAIN OF CLEMSON COLLEGE MADE THE INSPECTION ON OCTOBER 9 AT A TIME NOT REPORTED, AT THE REQUEST OF THE DISTRIBUTING AGENCY, FINDING THAT THE TURKEYS ON THE TOP LAYER AND THROUGH THE CENTER OF THE CAR (ESTIMATED TO BE 20 PERCENT OF THE SHIPMENT) WERE THAWED AND THAT THE INTERIOR TEMPERATURE OF THE CAR WAS 36 DEGREES; ALSO, THAT THE ICE BUNKERS WERE 3/4 FULL OF ICE. THE CONSIGNEE REFUSED TO ACCEPT THE SHIPMENT. THE INSIDE TEMPERATURE OF THE CAR AT TIME OF OPENING IS NOT SHOWN.

AT APPROXIMATELY THE SAME TIME AS DR. CHASTAIN'S INSPECTION, MR. WHITE, A CLAIM AGENT OF THE SOUTHERN RAILWAY, INSPECTED THE CAR, FINDING THAT THE ICE BUNKERS WERE WITHIN 10 INCHES OF BEING FULL. THE CARRIER RE-ICED THE CAR AT 11:45 P.M. OCTOBER 9 AND PLACED THE TURKEYS IN COLD STORAGE ON OCTOBER 10.

IN A LETTER DATED OCTOBER 29, 1959, THE SOUTH CAROLINA EXTENSION SERVICE STATES THAT THE TEMPERATURE AT COLUMBIA RANGED FROM 73 DEGREES TO 88 DEGREES ON OCTOBER 9, 1959. THE CONTRACTOR STATED IN ITS LETTER OF APRIL 23, 1960, TO MR. WALTER TUTEN, STATE SUPERVISOR, EXTENSION SERVICE IN SOUTH CAROLINA, THAT THE REQUIREMENT OF THE GOVERNMENT THAT DELIVERY OF THE TURKEYS SHOULD BE VIA RAIL WAS ABSURD SINCE CLOVER WAS ONLY TWO HOURS FROM COLUMBIA BY TRUCK--- A DISTANCE OF APPROXIMATELY 100 MILES. IN THIS CONNECTION, THE FILE INDICATES THAT AFTER THE REJECTION OF THE SUBJECT CARLOAD OF TURKEYS THE CONTRACTOR FURNISHED AN APPROXIMATELY EQUAL AMOUNT OF TURKEYS WHICH WERE DELIVERED AT THE CONTRACTOR'S PLANT AT CLOVER TO THE VARIOUS PARTICIPATING AGENCIES. IN ITS CLAIM DATED NOVEMBER 13, 1959, THE CONTRACTOR STATED THAT "THE TURKEYS SHOULD HAVE BEEN PLACED IN DEEP FREEZE STORAGE AFTER THE CAR HAD BEEN RECEIVED, ACCEPTED, OPENED AND DISTRIBUTION OF THE PERISHABLE CONTENTS MADE THEREFROM.'

IT IS TO BE NOTED THAT ALMOST FOUR DAYS ELAPSED FROM THE COMPLETION OF LOADING THE CAR AT CLOVER (4 P.M. ON OCTOBER 5) TO THE OPENING OF THE CAR AT COLUMBIA (8:30 A.M. OCTOBER 9), INVOLVING TRANSPORTATION FOR A DISTANCE OF ONLY APPROXIMATELY 100 MILES. AS STATED ABOVE WITH RESPECT TO THE BASIS OF THE GENERAL ACCOUNTING OFFICE SETTLEMENT ALLOWING THE CONTRACTOR'S CLAIM, THE EVIDENCE AVAILABLE INDICATES THAT THE CONTRACTOR WAS WITHOUT FAULT IN THE MATTER--- A VIEW WHICH IS STRONGLY SUPPORTED BY THE FACT THAT THE LOADING OF THE CAR WAS APPROVED BY A GOVERNMENT INSPECTOR. FURTHERMORE, THERE IS NOT FOUND ANY INDICATION THAT THE CARRIER FAILED TO ICE THE CAR PROPERLY AT ALL TIMES.

AS SUGGESTED BY THE CONTRACTOR, IT MAY HAVE BEEN UNWISE TO REQUIRE SHIPMENT OF THE TURKEYS BY RAIL, CONSIDERING THE SMALL DISTANCE INVOLVED. SUCH VIEW APPEARS TO BE SUPPORTED BY THE FACT THAT DELIVERY OF THE REPLACING TURKEYS AFTER REJECTION OF THE SUBJECT CARLOAD WAS ACCOMPLISHED IN A DIFFERENT MANNER.

IT IS BELIEVED ALSO THAT THERE WELL MAY BE VALIDITY IN THE CONTRACTOR'S VIEW THAT THE TURKEYS SHOULD HAVE BEEN PLACED IN DEEP FREEZE STORAGE PROMPTLY AFTER THE CAR WAS OPENED, INSTEAD OF ATTEMPTING TO DELIVER THE TURKEYS DIRECTLY FROM THE CAR TO VARIOUS RECIPIENT AGENCIES, PARTICULARLY ON A DAY WHEN THE TEMPERATURE WAS HIGH.

HAVING REGARD FOR ALL PERTINENT FACTS AVAILABLE, IT IS CONCLUDED THAT ALTHOUGH IMPROPER HANDLING OF THE MATTER APPARENTLY IS INVOLVED AND THE RESULTS HAVE BEEN UNFORTUNATE FOR THE GOVERNMENT, IT WOULD BE MOST DIFFICULT TO ESTABLISH THE RESPONSIBILITY AND LIABILITY OF ANY SPECIFIC PERSON OR AGENCY. THEREFORE, IT IS NOT BELIEVED THAT THE MAKING OF ANY CLAIM BY THE GOVERNMENT WOULD BE DESIRABLE OR IN THE INTEREST OF THE UNITED STATES.