B-163273, MAR. 13, 1970

B-163273, MAR. 13, 1970

FOREIGN SERVICE--LIVING QUARTERS--DAMAGE--GOVERNMENT LIABILITY IN MATTER OF INSURANCE COMPANY'S CLAIM FOR REIMBURSEMENT OF AMOUNT PAID TO OWNER OF BUILDING IN CHAD, OCCUPIED BY U.S. ARMY OFFICER, IN INDEMNIFICATION OF FIRE DAMAGES TO BUILDING, U.S. LIABILITY CANNOT BE REGARDED AS HAVING BEEN ESTABLISHED WITH SUFFICIENT CERTAINTY TO JUSTIFY PAYMENT EXCEPT UPON JUDICIAL DETERMINATION BY COURT OF COMPETENT JURISDICTION. EVIDENCE SUGGESTS MOST STRONGLY FIRE WAS CAUSED BY EITHER ELECTRICAL OVERLOAD DUE TO MUNICIPAL POWER SURGE OR SHORT CIRCUIT CAUSED BY FAULTY WIRING, CIRCUMSTANCES BEYOND CONTROL OF U.S. GOVT; AND FT. LAMY FIREMAN'S TESTIMONY THAT FIRE ORIGINATED IN ELECTRICAL APPLIANCES BECAUSE OF OCCUPANT'S NEGLIGENCE IS NOT SUFFICIENTLY CONVINCING TO REBUT EVIDENCE THAT OCCUPANT DID NOT ACT NEGLIGENTLY.

TO GROUPEMENT FRANCAIS D'ASSURANCES:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1969, CONCERNING YOUR CLAIM AS SUBROGEE, FOR 9,144,250 FRANCS, CFA, REPRESENTING REIMBURSEMENT OF AN AMOUNT PAID TO MR. JOSEPH M'BAIPOR IN INDEMNIFICATION OF FIRE DAMAGES TO A BUILDING WHICH WAS INSURED UNDER A POLICY CARRIED WITH YOUR COMPANY.

THE RECORD SHOWS THAT DURING THE CONSTRUCTION OF THE INSURED BUILDING, NEGOTIATIONS WERE IN PROGRESS BETWEEN MR. JOSEPH M'BAIPOR, OF DOBA, REPUBLIC OF CHAD, AS OWNER, AND THE AMERICAN EMBASSY FOR LEASING THE BUILDING ON COMPLETION, AND PURSUANT TO SAID NEGOTIATIONS A LEASE WAS EXECUTED ON SEPTEMBER 20, 1965, COVERING A ONE STORY MASONRY HOUSE LOCATED ON LOTS 190 AND 191, RUE DU HAVRE, FORT LAMY, REPUBLIC OF CHAD. THE GOVERNMENT OF THE UNITED STATES AGREED TO A RENTAL OF 150,000 CFA PER MONTH, PAYABLE 12 MONTHS IN ADVANCE, AND MR. M'BAIPOR AS PART OF THE RENTAL CONSIDERATION AGREED, AMONG OTHER THINGS, TO PROVIDE INSTALLED ELECTRICAL WIRING OF SUFFICIENT CAPACITY TO SUPPORT ALL ELECTRICAL REQUIREMENTS OF THE PREMISES, AS MORE SPECIFICALLY SET FORTH UNDER ARTICLE 6 OF THE LEASE.

A REPORT FURNISHED BY THE U.S. DEPARTMENT OF THE ARMY SHOWS THAT THE OCCUPANT OF THE LEASED PREMISES, LIEUTENANT COLONEL ROBERT L. LECOMPTE, AND HIS WIFE HAD RETIRED ON THE NIGHT OF APRIL 9, 1967, SOME 4 HOURS BEFORE THE FIRE WAS DISCOVERED BY COLONEL LECOMPTE ON OR ABOUT 2:00 A.M. APRIL 10, 1967, AND THAT COLONEL LECOMPTE STATED THAT ALL ELECTRICAL APPLIANCES WERE TURNED OFF, EXCEPT THE AIR CONDITIONER IN HIS BEDROOM.

A REPORT PREPARED BY A CHADIAN ELECTRICIAN, COPY ENCLOSED, INDICATES THAT THE FIRE WAS CAUSED BY A SHORT CIRCUIT IN THE INSTALLED WIRING RATHER THAN IN ANY OF THE APPLIANCES. IN VIEW OF THIS AND OTHER PERTINENT INFORMATION THE CLAIMS OFFICER OF THE DEPARTMENT RECOMMENDED THAT THE CLAIM SHOULD NOT BE PAID FOR THE FOLLOWING REASONS:

"ANY CLAIM BY THE LESSOR, MR. JOSEPH M'BAIPOR SHOULD BE DISAPPROVED. NOTWITHSTANDING WHAT MAY APPEAR AS EVIDENCE TO THE CONTRARY, THE FIRE WAS MOST LIKELY CAUSED BY A SHORT CIRCUIT OR AN ELECTRICAL OVERLOAD OF THE INSTALLED WIRING. WIDE FLUCTUATIONS OF MUNICIPAL CURRENT ARE COMMON IN FORT LAMY PARTICULARLY DURING THIS, THE HOT SEASON, AND WHEN COL LECOMPTE AROSE AND TRIED VARIOUS LIGHTS, ALL BULB FILAMENTS BLEW OUT. MOMENTS LATER HE WITNESSED FLAMES SHOOTING FROM A WALL SOCKET AND THE EMBASSY ELECTRICIAN LATER FOUND IMPROPER INSULATION AND FRAYED WIRING AT A JUNCTION BOX LOCATED NEAR WHERE FLAMES WERE FIRST NOTED. ALL THIS SUGGESTS MOST STRONGLY THAT ON THE MORNING OF 10 APRIL THE MUNICIPAL POWER SURGED, WIRING WAS OVERLOADED AND SHORT CIRCUITED AT WEAKEST POINT OR POINTS INGNITING NEARBY FLAMMABLE MATERIALS. THIS OPINION WAS SHARED BY ROMANO, A BUILDER AND THE ONLY APPRAISER QUALIFIED TO INVESTIGATE SUCH AN INCIDENT AND WHO, ON THE SCENE AND UNLIKE OTHER APPRAISERS, DIRECTED HIS EFFORTS AS MUCH TOWARD ESTABLISHING THE CAUSE OF THE FIRE AN TO EVALUATING THE MEASURE OF DAMAGES.

"MR. POIRIER INVESTIGATES PRIMARILY CLAIMS INVOLVING AUTOMOBILE ACCIDENTS AND WAS RETAINED BY THE COMPANY INSURING THE PROPERTY OWNER. HE, LIKE MR. TONGRONG, DID NOT BRING AN ELECTRICIAN TO THE SCENE NOR IS HE QUALIFIED AS SUCH HIMSELF. HIS REPORT WAS CONCERNED PRIMARILY IN DESCRIBING THE PROPERTY LOST AND ESTIMATING ITS VALUE. MR. TONGRONG, AN AFRICAN REPRESENTING THE CIVIL TRIBUNAL, KNOWS NOTHING OF CONSTRUCTION AND COMPLETED HIS INVESTIGATION WITHOUT BENEFIT OF TECHNICAL ADVICE. HIS REPORT CONTAINS AT LEAST TWO ERRORS IN FACT: HE HAD FIREMEN ARRIVING BEFORE THE FIRE STARTED AND HE MISQUOTED THE FIRE CHIEF'S ESTIMATE OF THE CAUSE. WITNESSES OVERHEARD THE FIRE CHIEF TELL MR. TONGRONG THAT HE BELIEVED THE FIRE STARTED BECAUSE OF A SHORT CIRCUIT IN THE INSTALLED WIRING AND YET TONGRONG IN HIS REPORT QUOTED HIM AS SAYING THE SHORT CIRCUIT OCCURRED IN THE APPLIANCES, AN UNLIKELY POSSIBILITY SINCE ALL LIVING ROOM APPLIANCES WERE OFF WHEN THE FIRE STARTED. I THEREFORE CONSIDER AS VALID ONLY ROMANO'S REPORTED CAUSE OF THE FIRE. NEGLIGENCE WAS NOT A FACTOR IN THIS FIRE. COL LECOMPTE WAS ASLEEP FOR SOME FOUR HOURS WHEN THE FIRE STARTED AND, ASIDE FROM THE AIR CONDITIONER IN HIS BEDROOM, HE HAD TURNED OFF ALL APPLIANCES BEFORE RETIRING. FIRE EXTINGUISHERS WOULD HAVE BEEN USELESS. BY THE TIME THE LECOMPTES AROSE AND FOUND THE FIRE IT WAS OUT OF CONTROL. I HAVE CONCLUDED THEREFORE THAT THE FIRE WAS CAUSED BY EITHER (A) AN OVERLOAD OF THE ELECTRICAL SYSTEM DUE TO MUNICIPAL POWER SURGE OR (B) ELECTRICAL SHORT CIRCUIT CAUSED BY FAULTY INSTALLED WIRING. ANY CLAIM SUBMITTED BY THE LESSOR SHOULD BE DISAPPROVED SINCE THE FIRE IN EITHER CASE WAS CAUSED BY CIRCUMSTANCES BEYOND THE CONTROL OF EITHER THE OCCUPANT OR THE UNITED STATES GOVERNMENT."

WHILE WE HAVE EXAMINED THE REPORT OF CORPORAL DJERE OF THE FORT LAMY FIRE DEPARTMENT WHO TESTIFIED THAT THE FIRE ORIGINATED IN THE ELECTRICAL APPLIANCES BECAUSE OF COLONEL LECOMPTE'S NEGLIGENCE,WE CANNOT ACCEPT HIS TESTIMONY AS SUFFICIENTLY CONVINCING TO REBUT THE OTHER EVIDENCE, NOTED ABOVE, WHICH TENDS TO DEMONSTRATE THAT COLONEL LECOMPTE DID NOT ACT NEGLIGENTLY IN THE MATTER. IN VIEW THEREOF THE LIABILITY OF THE UNITED STATES GOVERNMENT FOR THE LOSS CANNOT BE REGARDED AS HAVING BEEN ESTABLISHED WITH SUFFICIENT CERTAINTY TO JUSTIFY PAYMENT EXCEPT UPON A JUDICIAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION.