B-142897, JUN. 8, 1960

B-142897: Jun 8, 1960

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TO THE STANDARD OIL COMPANY OF CALIFORNIA: REFERENCE IS MADE TO YOUR LETTER OF APRIL 28. THAT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON SEPTEMBER 18. 193.86 WERE FOR DELIVERIES AT SEATTLE. THE REMAINING INVOICES WERE FOR DELIVERIES AT VARIOUS POINTS IN CALIFORNIA. STATES THE DELIVERIES WERE INITIALLY BILLED TO THE OWNERS FOR PRODUCT PLUS CALIFORNIA SALES TAX. REPORT OF THE NAVY REGIONAL ACCOUNTS OFFICE STATES THAT RECORDS FOR THE YEAR 1950 ARE NO LONGER AVAILABLE AND NO RECOMMENDATION CAN BE MADE WITH RESPECT TO YOUR CLAIM. FURNISHES COPIES OF CORRESPONDENCE IN WHICH OWNERS OF SIX OF THE ELEVEN VESSELS ACKNOWLEDGE THEY HAVE VERIFIED FROM COMPANY RECORDS THAT FUEL IN THE AMOUNTS SET FORTH IN YOUR INVOICES WAS DELIVERED TO THEM.

B-142897, JUN. 8, 1960

TO THE STANDARD OIL COMPANY OF CALIFORNIA:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1960, WHICH FURNISHES ADDITIONAL INFORMATION AND REQUESTS RECONSIDERATION OF YOUR CLAIM FOR $98,436.56 FOR DELIVERIES OF FUEL IN SEPTEMBER AND OCTOBER 1950 TO CERTAIN VESSELS UNDER TIME CHARTER TO THE MILITARY SEA TRANSPORTATION SERVICE. THAT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON SEPTEMBER 18, 1959.

THE RECORD CONSISTS OF INVOICES TOTALING $98,436.56 FOR DELIVERY OF STANDARD BUNKER FUEL TO ELEVEN VESSELS DURING THE PERIOD OF SEPTEMBER 26, 1950, THROUGH OCTOBER 13, 1950. TWO OF THESE INVOICES, IN AMOUNTS TOTALING $36,193.86 WERE FOR DELIVERIES AT SEATTLE, WASHINGTON, AND THE REMAINING INVOICES WERE FOR DELIVERIES AT VARIOUS POINTS IN CALIFORNIA. IN SUPPORT OF THESE INVOICES, YOUR LETTER OF APRIL 29, 1959, STATES THE DELIVERIES WERE INITIALLY BILLED TO THE OWNERS FOR PRODUCT PLUS CALIFORNIA SALES TAX. TO EXPLAIN REBILLING TO THE MILITARY SEA TRANSPORTATION SERVICE, YOUR LETTER ENCLOSES A COPY OF A LETTER DATED NOVEMBER 3, 1950, FROM THE OFFICE OF THE DEPUTY COMMANDER, MSTS, OUTLINING PROCEDURES FOR PAYMENT OF INVOICES FOR DELIVERIES OF FUEL TO VESSELS UNDER TIME CHARTER TO MSTS. THAT LETTER INDICATED THE PROCEDURES APPLIED ONLY TO PURCHASES OF BUNKER FUEL IN THE STATE OF CALIFORNIA AND STATED THAT DELIVERIES DURING THE PERIOD SEPTEMBER 22, 1950, TO OCTOBER 16, 1950, TO VESSELS UNDER TIME CHARTER TO MSTS SHOULD BE CONSIDERED AS BILLINGS RESULTING FROM DIRECT SALE TO THE GOVERNMENT. YOU STATE THAT YOU RECALLED THE INVOICES FROM THE OWNERS AND BILLED THEM TO MSTS IN LINE WITH INSTRUCTIONS CONTAINED IN THE LETTER OF NOVEMBER 3, 1950. YOU FURTHER STATE THAT AFTER THE DEATH OF AN EMPLOYEE WHO HANDLED THIS ACCOUNT, YOU SPENT CONSIDERABLE TIME ATTEMPTING TO LOCATE LOST CORRESPONDENCE AND ATTEMPTING TO RECONSTRUCT THE HISTORY OF THE ACCOUNT, BUT YOUR RECORDS DO NOT REVEAL THAT A FORMAL CLAIM FOR PAYMENT OF THE BALANCE OF $98,436.56 HAD BEEN FILED WITH MSTS, THE NAVY DEPARTMENT OR ANY OTHER GOVERNMENT AGENCY. REPORT OF THE NAVY REGIONAL ACCOUNTS OFFICE STATES THAT RECORDS FOR THE YEAR 1950 ARE NO LONGER AVAILABLE AND NO RECOMMENDATION CAN BE MADE WITH RESPECT TO YOUR CLAIM.

YOUR LETTER OF APRIL 28, 1960, FURNISHES COPIES OF CORRESPONDENCE IN WHICH OWNERS OF SIX OF THE ELEVEN VESSELS ACKNOWLEDGE THEY HAVE VERIFIED FROM COMPANY RECORDS THAT FUEL IN THE AMOUNTS SET FORTH IN YOUR INVOICES WAS DELIVERED TO THEM, AND YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM.

THE TIME CHARTER PARTIES FOR THE VESSELS INVOLVED ARE SIMILAR IN SCOPE AND PROVIDE, WITH RESPECT TO FUEL, THAT THE CHARTERER SHALL REIMBURSE THE OWNERS FOR THE COST OF ALL FUEL PROCURED BY THE OWNERS AND LOADED IN THE VESSELS, EXCEPT FOR FUEL NOT USED DURING THE PERIOD OF THE CHARTERS. EVIDENCE HAS BEEN ADVANCED TO SHOW THAT THE FUEL REFERRED TO IN YOUR INVOICES WAS ACTUALLY USED DURING THE PERIOD OF THE CHARTERS.

THE LETTER OF NOVEMBER 3, 1950, FROM THE OFFICE OF THE DEPUTY COMMANDER, MSTS, SETS FORTH BILLING INSTRUCTIONS TO APPLY TO PURCHASES OF BUNKER FUEL MADE IN CALIFORNIA DURING THE PERIOD SEPTEMBER 22, 1950, TO OCTOBER 16, 1950, PENDING A REVISION OF THE TIME CHARTER PARTIES. IT IS NOT CLEAR WHETHER THE INSTRUCTIONS IN THIS LETTER APPLY TO BILLINGS FOR EACH OF THE DELIVERIES COVERED BY YOUR INVOICES AND IT IS CERTAINLY LESS CLEAR HOW THE INSTRUCTIONS APPLY TO BILLINGS FOR THE TWO DELIVERIES MADE AT SEATTLE, WASHINGTON.

IN ADDITION, WHILE AS INDICATED YOU SPENT CONSIDERABLE TIME IN ATTEMPTING TO LOCATE LOST CORRESPONDENCE AND IN ATTEMPTING TO RECONSTRUCT THE HISTORY OF THE ACCOUNT IT WAS NOT UNTIL 1959 THAT YOU MADE FORMAL CLAIM FOR THE AMOUNT BELIEVED TO BE DUE. IN THE MEANTIME, THE RECORDS OF THE ADMINISTRATIVE OFFICERS, WHICH MAY HAVE BEEN OF ASSISTANCE IN DETERMINING WHETHER ANY AMOUNTS WERE DUE, HAD BEEN DESTROYED PURSUANT TO LAW.

THE BURDEN IS ON A CLAIMANT TO FURNISH EVIDENCE CLEARLY AND SATISFACTORILY ESTABLISHING HIS CLAIM (31 COMP. GEN. 341; 23 ID. 907; 18 ID. 980; 17 ID. 831). THE PRESENT RECORD BEFORE US DOES NOT ESTABLISH BY SATISFACTORY EVIDENCE THE LEGAL LIABILITY OF THE UNITED STATES TO PAY FOR THE FUEL DELIVERIES COVERED BY YOUR INVOICES.

IT HAS LONG BEEN THE PRACTICE OF ACCOUNTING OFFICERS OF THE GOVERNMENT TO DECLINE PAYMENT OF CLAIMS WHICH ARE NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE. IN THE ABSENCE OF SUCH EVIDENCE, IT IS REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291; CHARLES V. UNITED STATES, 19 ID. 316, 319.

IN VIEW OF THE ABOVE, THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM MUST BE SUSTAINED.