B-143569, AUG. 25, 1960

B-143569: Aug 25, 1960

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WAS $457.80. THE SHIPMENT WAS FOUND TO BE FROSTED BLUE BULBS INSTEAD OF THE FROSTED WHITE BULBS WHICH WERE ORDERED. ADVISED THAT THE BLUE BULBS WERE UNUSABLE. YOU STATE THAT YOUR RECORDS SHOW THAT INSTRUCTIONS REGARDING THE LAMP BULBS WERE GIVEN TO THE AIR FORCE BY LETTER DATED JULY 15. WHILE THE AIR FORCE REPORTS THAT INSTRUCTIONS REGARDING DISPOSITION OF THE BULBS WERE REQUESTED BY THE CONTRACTING OFFICER BY LETTER OF JULY 24. THE AIR FORCE HAS REPORTED THAT A BUILDING MODIFICATION WAS IN PROGRESS DURING THE PERIOD WHICH DISRUPTED NORMAL WAREHOUSE OPERATIONS. REWAREHOUSING PROJECT WAS INITIATED AS SOON AS THE WORK HAD PROGRESSED ENOUGH TO PERMIT AND THE LAMPS WERE LOCATED ON AUGUST 29.

B-143569, AUG. 25, 1960

TO MR. A. H. FLATH:

YOUR LETTER OF JULY 8, 1960, REQUESTS RECONSIDERATION OF OUR SETTLEMENT DATED MARCH 22, 1960, WHICH DISALLOWED YOUR CLAIM FOR $457.80, THE VALUE OF 2400 LAMP BULBS DESTROYED BY FIRE IN A WAREHOUSE AT MOUNTAIN HOME AFB, IDAHO, ON SEPTEMBER 3, 1958.

THE RECORD BEFORE US SHOWS THAT PURCHASE ORDER NO. (10-603) 58 4854, MAY 9, 1958, PLACED AN ORDER FOR 2400 FROSTED WHITE LAMP BULBS TO BE DELIVERED TO MOUNTAIN HOME AFB, IDAHO.

THE INVOICE PRICE FOR THE LAMP BULBS SHIPPED BY INVOICE NO. 72 11776, DATED JUNE 13, 1958, WAS $457.80. UPON INSPECTION, THE SHIPMENT WAS FOUND TO BE FROSTED BLUE BULBS INSTEAD OF THE FROSTED WHITE BULBS WHICH WERE ORDERED. A REPORT OF DISCREPANCY, DATED JUNE 30, 1958, ADVISED THAT THE BLUE BULBS WERE UNUSABLE.

YOU STATE THAT YOUR RECORDS SHOW THAT INSTRUCTIONS REGARDING THE LAMP BULBS WERE GIVEN TO THE AIR FORCE BY LETTER DATED JULY 15, 1958, WHILE THE AIR FORCE REPORTS THAT INSTRUCTIONS REGARDING DISPOSITION OF THE BULBS WERE REQUESTED BY THE CONTRACTING OFFICER BY LETTER OF JULY 24, 1958. MR. J. G. FIGUERIA, OF THE WESTINGHOUSE ORDER SERVICE DEPARTMENT, REPLIED TO THE CONTRACTING OFFICER BY LETTER DATED JULY 31, 1958, AND REQUESTED THAT THE LAMP BULBS BE SHIPPED COLLECT TO 5820 LANDREGAN STREET, EMERYVILLE, CALIFORNIA.

AFTER RECEIPT OF THOSE INSTRUCTIONS, THE BASE PROCUREMENT OFFICE AT MOUNTAIN HOME AFB ISSUED SHIPPING INSTRUCTIONS, DATED AUGUST 5, 1958, TO THE SUPPLY WAREHOUSE IN ACCORDANCE WITH MR. FIGUERIA'S REQUEST.

THE AIR FORCE HAS REPORTED THAT A BUILDING MODIFICATION WAS IN PROGRESS DURING THE PERIOD WHICH DISRUPTED NORMAL WAREHOUSE OPERATIONS. REWAREHOUSING PROJECT WAS INITIATED AS SOON AS THE WORK HAD PROGRESSED ENOUGH TO PERMIT AND THE LAMPS WERE LOCATED ON AUGUST 29, 1958. BEFORE THE LAMPS WERE SHIPPED, THE WAREHOUSE IN WHICH THEY WERE STORED WAS DESTROYED BY FIRE ON SEPTEMBER 3, 1958.

THE AIR FORCE FURTHER REPORTED THAT IT INTENDED TO PROVIDE NORMAL PROTECTION TO THE LAMPS AND TO DISPOSE OF THEM IN ACCORDANCE WITH INSTRUCTIONS FROM WESTINGHOUSE. ALTHOUGH THE AIR FORCE DID NOT INTEND TO ACCEPT TITLE TO THE LAMPS WHICH IT HAD NOT ORDERED, THE LAMPS WERE AFFORDED THE SAME PROTECTION GIVEN TO LIKE ITEMS OF AIR FORCE PROPERTY. THE REPORT STATED THAT THE FIRE WHICH DESTROYED THE WAREHOUSE IN WHICH THE LAMPS WERE STORED OCCURRED WITHOUT UNDUE FAULT OR NEGLECT ON THE PART OF THE AIR FORCE.

YOU SUBMIT THAT THE FAILURE OF THE AIR FORCE, FOR A PERIOD OF AT LEAST A MONTH, EITHER TO SHIP THE BULBS TO THE WESTINGHOUSE WAREHOUSE OR TO NOTIFY WESTINGHOUSE OF ITS REFUSAL TO MAKE SUCH SHIPMENT WAS A BREACH OF A DUTY WHICH THE AIR FORCE OWED TO WESTINGHOUSE UNDER THE CIRCUMSTANCES. YOU STATE THAT THE DUTY OF THE AIR FORCE AS A GRATUITOUS BAILEE WAS TO EXERCISE REASONABLE CARE WITH RESPECT TO THE SUBJECT OF THE BAILMENT. SUPPORT OF THE DUTY OF REASONABLE CARE YOU CITE 17 COMP. GEN. 1057 AND 6 AMERICAN JURISPRUDENCE, BAILMENTS, SECTION 253.

WE HAVE APPLIED THE RULE THAT A GRATUITOUS BAILEE OWES A DUTY OF REASONABLE CARE WITH RESPECT TO THE BAILED PROPERTY, BUT IN 17 COMP. GEN. 1057 WE FOUND THAT THE GOVERNMENT EXERCISED REASONABLE CARE IN STORING SEEDS WHICH DID NOT MEET CONTRACT SPECIFICATIONS AND THAT THE GOVERNMENT WAS NOT LIABLE FOR THE DESTRUCTION OF THE SEEDS BY A FIRE OF UNKNOWN ORIGIN.

THE RECORD BEFORE US DOES NOT SUPPORT YOUR CONTENTION THAT THERE WAS A REFUSAL ON THE PART OF THE AIR FORCE TO RETURN THE LAMPS. ON THE CONTRARY, THE ACTIONS OF THE AIR FORCE WERE DIRECTED TOWARD PUTTING THOSE INSTRUCTIONS INTO EFFECT. WHETHER THE INSTRUCTIONS FOR RETURNING THE LAMPS WERE GIVEN BY YOUR LETTER OF JULY 15, 1958, OR BY YOUR LETTER OF JULY 31, 1958, THE AIR FORCE CONTINUED TO ACT IN A MANNER CONSISTENT WITH ITS INTENTION TO RETURN THE LAMPS.

THE MERE FACT OF DELAY IN CARRYING OUT THOSE INSTRUCTIONS, WHICH WAS CAUSED BY THE DISRUPTION OF NORMAL WAREHOUSING OPERATIONS DURING A BUILDING MODIFICATION, DOES NOT ESTABLISH THAT THERE WAS A BREECH OF THE DUTY OF REASONABLE CARE OWED TO WESTINGHOUSE.

IN FURTHERANCE OF ITS INTENTION TO RETURN THE BULBS ACCORDING TO YOUR INSTRUCTIONS, THE AIR FORCE LOCATED THE BULBS ON FRIDAY, AUGUST 29, 1958. DUE TO THE LABOR DAY HOLIDAY ON SEPTEMBER 1, THERE WAS ONLY ONE WORKING DAY BETWEEN THE DATE THE BULBS WERE LOCATED AND THE DATE OF THE FIRE IN WHICH THE BULBS WERE DESTROYED. WE DO NOT AGREE THAT A DELAY SUCH AS THIS SHOWS A LACK OF REASONABLE CARE. IN THE EVENTS PRIOR TO THE FIRE, THE AIR FORCE ACTED IN A MANNER ENTIRELY CONSISTENT WITH ITS STATED INTENTION TO RETURN THE LAMP BULBS IN ACCORDANCE WITH YOUR REQUEST, AND THE RECORD FAILS TO SHOW THAT THE FIRE WAS DUE TO NEGLIGENCE ON THE PART OF THE AIR FORCE.

THE RULE IS WELL ESTABLISHED THAT AN ORDINARY BAILEE, NO MATTER TO WHAT CLASS HE BELONGS, IS NOT AN INSURER OF GOODS DELIVERED INTO HIS KEEPING. SEE 6 AMERICAN JURISPRUDENCE, BAILMENTS, SECTION 242, AND CASES THEREIN CITED. SEE ALSO 24 COMP. GEN. 138.

ACCORDINGLY, UPON REVIEW OF THE ENTIRE RECORD, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.