B-158542, MAR. 22, 1966

B-158542: Mar 22, 1966

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INC.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1. COVERING THE VALUE OF SIX NO. 160 POLAROID CAMERAS ALLEGED TO HAVE BEEN DELIVERED TO THE U.S.S. REPRESENTING THE VALUE OF 6 NO. 160 POLAROID CAMERAS WHICH THE SHIP'S STORE OFFICER HAD ALLEGED WERE NOT RECEIVED. YOU SUBMITTED A CLAIM FOR THE SUM OF $299.70 AS PAYMENT FOR THE DIFFERENCE IN THE QUANTITY OF NO. 160 POLAROID CAMERAS ASCERTAINED TO HAVE BEEN DELIVERED ON INSPECTION AT DESTINATION AND THE QUANTITY OF NO. 160 POLAROID CAMERAS ALLEGED TO HAVE BEEN DELIVERED ON THE BASIS OF YOUR FIRM'S RECORDS. YOUR CLAIM WAS SUBMITTED TO OUR OFFICE FOR SETTLEMENT AND BY SETTLEMENT DATED JANUARY 13. THE CLAIM WAS DENIED FOR THE REASON THAT THE DEPARTMENT OF THE NAVY HAD REPORTED THAT ITS RECORDS INDICATED THAT ONLY 4 OF THE 10 NO. 160 POLAROID CAMERAS THAT WERE ORDERED BY THE SHIP'S STORE OFFICER WERE RECEIVED.

B-158542, MAR. 22, 1966

TO C. LLOYD JOHNSON CO. INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1, 1966, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 13, 1966, DISALLOWING YOUR CLAIM FOR $299.70, COVERING THE VALUE OF SIX NO. 160 POLAROID CAMERAS ALLEGED TO HAVE BEEN DELIVERED TO THE U.S.S. PRAIRIE UNDER DEPARTMENT OF THE NAVY PURCHASE ORDER N00638 62938-65 (CONTRACT NO. 04620-5043-9755).

IT APPEARS THAT PURSUANT TO YOUR FIRM'S TELEPHONE QUOTATION OF FEBRUARY 19, 1965, THE SHIP'S STORE OFFICER, U.S.S. PRAIRIE (AD 15), ISSUED PURCHASE ORDER N00638 62938-65 DATED FEBRUARY 19, 1965, FOR FURNISHING PLAYING CARDS, POLAROID CAMERAS AND CAMERA EQUIPMENT, ITEMS 1 THROUGH 5. ITEM 2 CALLED FOR DELIVERY OF 10 NO. 160 POLAROID CAMERAS. THE RECORD INDICATES THAT AFTER SHIPPING THE ABOVE ITEMS, YOUR FIRM SUBMITTED TO THE SHIP'S STORE OFFICER FOR PAYMENT INVOICE NO. 108744 IN THE TOTAL AMOUNT OF $811.71, WHICH INCLUDED A CHARGE OF $499.50 FOR 10 NO. 160 POLAROID CAMERAS AND THAT BEFORE MAKING PAYMENT THEREON, THE ADMINISTRATIVE OFFICE DEDUCTED THE AMOUNT OF $299.70, REPRESENTING THE VALUE OF 6 NO. 160 POLAROID CAMERAS WHICH THE SHIP'S STORE OFFICER HAD ALLEGED WERE NOT RECEIVED. THEREAFTER, YOU SUBMITTED A CLAIM FOR THE SUM OF $299.70 AS PAYMENT FOR THE DIFFERENCE IN THE QUANTITY OF NO. 160 POLAROID CAMERAS ASCERTAINED TO HAVE BEEN DELIVERED ON INSPECTION AT DESTINATION AND THE QUANTITY OF NO. 160 POLAROID CAMERAS ALLEGED TO HAVE BEEN DELIVERED ON THE BASIS OF YOUR FIRM'S RECORDS. YOUR CLAIM WAS SUBMITTED TO OUR OFFICE FOR SETTLEMENT AND BY SETTLEMENT DATED JANUARY 13, 1966, THE CLAIM WAS DENIED FOR THE REASON THAT THE DEPARTMENT OF THE NAVY HAD REPORTED THAT ITS RECORDS INDICATED THAT ONLY 4 OF THE 10 NO. 160 POLAROID CAMERAS THAT WERE ORDERED BY THE SHIP'S STORE OFFICER WERE RECEIVED.

IN THE SETTLEMENT YOU WERE ADVISED THAT THE FACT THAT YOUR FIRM'S DAILY INVENTORY RECORD FAILED TO SHOW AN OVERAGE OF SIX CAMERAS IS NOT CONCLUSIVE PROOF THAT THE CAMERAS IN QUESTION WERE DELIVERED TO THE U.S.S. PRAIRIE UNDER THE CITED PURCHASE ORDER. IN YOUR LETTER REQUESTING REVIEW YOU STATE THAT YOUR MAIN POINT HAS NEVER BEEN THAT YOUR FIRM'S INVENTORY RECORDS AGREE AND, THEREFORE, YOUR FIRM MUST HAVE SHIPPED THE U.S.S. PRAIRIE THE SIX CAMERAS IN QUESTION. YOU ALLEGE THAT YOUR CONTENTION HAS BEEN THAT IF YOUR FIRM HAD A SIGNED DELIVERY RECEIPT FOR THE ENTIRE SHIPMENT TO THE U.S.S. PRAIRIE, AND THE CAMERAS AND CAMERA EQUIPMENT, AS COVERED BY THE DELIVERY TICKET, WERE REWEIGHED AND REPACKED AND COMPARED TO THE ORIGINAL DELIVERY TICKET SIGNED FOR BY THE U.S.S. PRAIRIE, THEY WOULD BE IDENTICAL. IT IS YOUR OPINION THAT AT SOME POINT AFTER THE RECEIVING OFFICER SIGNED FOR THIS MERCHANDISE, THESE SIX CAMERAS WERE MISPLACED BY THE SHIP'S PERSONNEL AND, THEREFORE, THE RESULTING LOSS WAS THE RESPONSIBILITY OF THE GOVERNMENT.

IT IS REPORTED THAT A COMPLETE INVENTORY OF STOCK WAS TAKEN, ON TWO OCCASIONS, BY THE SHIP'S STORE OFFICER OF THE U.S.S. PRAIRIE AND THAT HE WAS UNABLE TO FIND THE SIX MISSING NO. 160 POLAROID CAMERAS. THE RECORD CONTAINS A COPY OF THE ORDER AND INSPECTION REPORT COVERING THE PURCHASE ORDER IN QUESTION AND IT BEARS THE SIGNATURE OF INSPECTOR "J. E. DZURBA" WHO CERTIFIED THEREON THAT 4 NOT 10 NO. 160 POLAROID CAMERAS WERE INSPECTED AND ACCEPTED BY HIM. WHILE YOU ALLEGE THAT THE SIX MISSING POLAROID CAMERAS WERE PACKED IN A SEPARATE CARTON AND THAT SUCH CARTON WAS A PART OF A SHIPMENT CONSISTING OF 487 CARTONS THAT FACT MAY NOT BE ACCEPTED AS PROVING THAT THE CAMERAS WERE RECEIVED BY THE GOVERNMENT.

UNDER THE CIRCUMSTANCES, IT MUST BE ASSUMED THAT THE CARTON CONTAINING THE MISSING SIX CAMERAS WAS EITHER LOST IN TRANSIT OR NEVER SHIPPED. IS A WELL-SETTLED RULE OF LAW THAT WHERE PROPERTY IS TO BE TRANSPORTED BY THE SELLER TO A PARTICULAR PLACE AND THERE DELIVERED TO THE BUYER WHO IS GIVEN THE RIGHT TO INSPECT AND REJECT THE SAME IF IT DOES NOT CONFORM TO THE REQUIREMENTS OF THE CONTRACT, THE TRANSACTION ORDINARILY IS TREATED AS EXECUTORY AND TITLE DOES NOT PASS TO THE BUYER UNTIL THE GOODS ARE ACTUALLY DELIVERED AND ACCEPTED. 46 AM.JUR., SALES, SECTION 423. ALSO, IN THE ABSENCE OF A STATUTE OR AGREEMENT, THE RISK OF LOSS OR INJURY AS BETWEEN THE BUYER AND THE SELLER MUST BE BORNE BY THE PARTY WHO HAS TITLE TO THE GOODS AT THE TIME SUCH LOSS OR INJURY OCCURS. 77 C.J.S., SALES, SECTION 286.

THE INSPECTION AND ACCEPTANCE OF THE DELIVERY HERE INVOLVED WERE TO BE MADE BY THE RECEIVING OFFICER OF THE VESSEL AND IT APPEARS REASONABLE TO ASSUME THAT THE PARTIES TO THE TRANSACTION DID NOT INTEND THAT TITLE TO THE GOODS WAS TO PASS TO THE GOVERNMENT UNTIL AFTER DELIVERY WAS MADE TO THE VESSEL.

SINCE IT HAS BEEN REPORTED BY THE ADMINISTRATIVE OFFICE THAT THE GOVERNMENT RECORDS DO NOT SHOW AN OFFICIAL RECEIPT OF THE CAMERAS AND THAT A COMPLETE INVENTORY DOES NOT DISCLOSE THE PRESENCE OF THE CAMERAS ON BOARD THE VESSEL, THIS OFFICE WOULD NOT BE JUSTIFIED IN AUTHORIZING THE ALLOWANCE OF ANY PART OF YOUR CLAIM FOR THE VALUE OF THE CAMERAS. ACCORDINGLY, THE SETTLEMENT OF JANUARY 13, 1966, IS SUSTAINED.