B-145018, MAR. 2, 1961

B-145018: Mar 2, 1961

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NATIONAL PARK SERVICE: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7. MERRIAM WAS NEVER PERFORMED SINCE THE CHARTERED PLANE COULD NOT LAND AT THE FURNACE CREEK AIRPORT AT DEATH VALLEY NATIONAL MONUMENT TO PICK UP THE TWO MEN ON NOVEMBER 12. ONE WHO MAKES A CONTRACT NEVER CAN BE ABSOLUTELY CERTAIN THAT HE WILL BE ABLE TO PERFORM IT WHEN THE TIME COMES. THE VERY ESSENCE OF IT IS THAT HE TAKES THE RISK WITHIN THE LIMITS OF HIS UNDERTAKING. THE CARRIER IS NOT ENTITLED TO PAYMENT SINCE THE CHARTER AGREEMENT MADE NO PROVISION FOR COMPENSATION SHOULD THE CARRIER FAIL TO PERFORM THE SERVICE ON NOVEMBER 12. FOR PERFORMANCE IS A CONDITION UPON THE SHIPPER'S PROMISE TO PAY. JUST AS PERFORMANCE IS ALWAYS A CONDITION UPON PAYMENT IN ANY CONTRACT OF SERVICE.

B-145018, MAR. 2, 1961

TO AUTHORIZED CERTIFYING OFFICER, NATIONAL PARK SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1961, FILE F16-ABF, WITH ENCLOSURES, IN WHICH YOU REQUEST A DECISION AS TO WHETHER THE CLAIM VOUCHER SUBMITTED BY ALAMO AIRWAYS, LAS VEGAS, NEVADA, MAY PROPERLY BE CERTIFIED FOR PAYMENT.

THE RECORD DISCLOSES THAT ALAMO AIRWAYS, LAS VEGAS, NEVADA, SUBMITTED A BILL FOR $55 ON STANDARD FORM NO. 1171,"PUBLIC VOUCHER FOR TRANSPORTATION OF PASSENGERS," SUPPORTED BY A ,GOVERNMENT TRANSPORTATION REQUEST," STANDARD FORM NO. 1169, ISSUED OCTOBER 26, 1960, BY MR. C. E. PERSONS, REGIONAL ADMINISTRATIVE OFFICER, NATIONAL PARK SERVICE, SAN FRANCISCO, CALIFORNIA. THE REQUEST AUTHORIZED THE CARRIER TO FURNISH "CHARTER CLASS AIR TRANSPORTATION AT LOWEST RATE FROM LAS VEGAS, NEVADA, TO DEATH VALLEY NAT-L MON. AND RETURN" FOR USE OF "CONRAD L. WIRTH AND ONE OTHER * * *.' THE RECORD CONTAINS A CHARTER AGREEMENT DATED OCTOBER 26, 1960, AND SIGNED BY MR. H. L. STARCHER, REPRESENTATIVE OF ALAMO AIRWAYS AND MR. C. E. PERSONS, REPRESENTATIVE OF NATIONAL PARK SERVICE. BY THIS AGREEMENT ALAMO AIRLINES AGREED TO FURNISH CHARTER AIR SERVICES TO DEATH VALLEY NATIONAL MONUMENT AT THE RATE OF $55 PER TRIP (DAY) ON NOVEMBER 12 FROM DEATH VALLEY NATIONAL MONUMENT TO LAS VEGAS, NEVADA, FOR THE PURPOSE OF TRANSPORTING MESSRS. CONRAD L. WIRTH AND LAWRENCE C. MERRIAM. THE RECORD DISCLOSES ALSO THAT THE CHARTER AGREEMENT TO TRANSPORT MESSRS. CONRAD L. WIRTH AND LAWRENCE C. MERRIAM WAS NEVER PERFORMED SINCE THE CHARTERED PLANE COULD NOT LAND AT THE FURNACE CREEK AIRPORT AT DEATH VALLEY NATIONAL MONUMENT TO PICK UP THE TWO MEN ON NOVEMBER 12, 1960, BECAUSE OF A WIND AND SAND STORM.

ONE WHO MAKES A CONTRACT NEVER CAN BE ABSOLUTELY CERTAIN THAT HE WILL BE ABLE TO PERFORM IT WHEN THE TIME COMES, AND THE VERY ESSENCE OF IT IS THAT HE TAKES THE RISK WITHIN THE LIMITS OF HIS UNDERTAKING. DAY V. UNITED STATES, 245 U.S. 159.

IN THIS INSTANCE ON THE BASIS OF THE CHARTER AGREEMENT, THE CARRIER DID NOT PERFORM THE SERVICE ON NOVEMBER 12, 1960, AND TOOK THE RISK OF NOT BEING ABLE TO PERFORM ON THE DATE SPECIFIED; THEREFORE, THE CARRIER IS NOT ENTITLED TO PAYMENT SINCE THE CHARTER AGREEMENT MADE NO PROVISION FOR COMPENSATION SHOULD THE CARRIER FAIL TO PERFORM THE SERVICE ON NOVEMBER 12, 1960, BECAUSE OF THE UNFAVORABLE WEATHER. FURTHERMORE,THE LAW THROWS UPON ALL CARRIERS THE RISK OF PERFORMANCE, FOR PERFORMANCE IS A CONDITION UPON THE SHIPPER'S PROMISE TO PAY, JUST AS PERFORMANCE IS ALWAYS A CONDITION UPON PAYMENT IN ANY CONTRACT OF SERVICE. ALCOA STEAMSHIP CO. V. UNITED STATES, 175 F.2D 661, AFFIRMED 338 U.S. 421. MOREOVER, NO PUBLIC MONEY SHALL BE PAID ON ACCOUNT OF A CONTRACT BEFORE THE ACTUAL PERFORMANCE OF THE SERVICE. SEE 31 U.S.C. 529 AND THE FLOYD ACCEPTANCES, 7 WALL. (U.S.) 666.

ACCORDINGLY, SINCE THE CHARTER AGREEMENT OF OCTOBER 26, 1960, WAS NOT PERFORMED BY ALAMO AIRWAYS, THE GOVERNMENT IS NOT LIABLE FOR ANY CHARGES AND THE VOUCHER MAY NOT PROPERLY BE CERTIFIED FOR PAYMENT EITHER IN THE AMOUNT OF $55, OR $35, THE LATTER AMOUNT BEING REPRESENTED TO BE THE MINIMUM OPERATIVE CHARGES OF THE FLIGHT.

THE PUBLIC VOUCHER FOR TRANSPORTATION CHARGES, THE GOVERNMENT TRANSPORTATION REQUEST, THE CHARTER AGREEMENT OF OCTOBER 26, 1960, AND OTHER SUPPORTING PAPERS ENCLOSED WITH YOUR LETTER ARE ..END :