B-166098, APR. 7, 1969

B-166098, APR. 7, 1969

TO MR. JOHN L. SMITH:

WE REFER TO THE REQUEST IN YOUR LETTERS OF FEBRUARY 3 AND 14, 1969, FILE AD57X12, FOR A DECISION WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT THE CLAIM OF TELETYPE CORPORATION FOR $90.50 REPRESENTING THE SALE PRICE OF ONE TELETYPE TAPE SPLICER AND THE POSTAGE OF 60 CENTS PREPAID THEREON FROM ITS PLANT AT SKOKIE, ILLINOIS, TO THE WEATHER BUREAU, ADMINISTRATIVE SERVICE, DETROIT, MICHIGAN.

THE COPY OF PURCHASE ORDER ES-016-2233-68, DATED JUNE 11, 1968, WHICH WAS FURNISHED WITH YOUR LETTERS, SHOWS THAT AN ORDER WAS PLACED FOR FIVE TELETYPE TAPE SPLICERS, AT $89.90 EACH, WHICH WERE TO BE SHIPPED TO FIVE DIFFERENT DESTINATIONS. THE PURCHASE ORDER FURTHER SHOWS THAT DELIVERY WAS TO BE MADE F.O.B. SKOKIE, ILLINOIS, AND THAT CLAIMANT WAS REQUESTED TO PREPAY THE TRANSPORTATION AND TO ADD THE COST AS A SEPARATE ITEM ON THE BILLING INVOICES.

ALL OF THE SHIPMENTS ARE REPORTED TO HAVE BEEN DELIVERED EXCEPT THE SPLICER WHICH WAS CONSIGNED TO DETROIT, MICHIGAN. AS TO THAT SHIPMENT, THE CONSIGNEE DID NOT RECEIVE THE SPLICER AND THE SHIPMENT WAS NOT RETURNED TO THE CLAIMANT PURSUANT TO THE RETURN ADDRESS ON THE PACKAGE. THE POSTMASTER AT DETROIT, MICHIGAN, HAS ADVISED YOU THAT HE HAS NO RECORD OF THE MISSING SHIPMENT. YOU ALSO ADVISE THAT THE FAILURE OF THE SHIPMENT TO REACH THE CONSIGNEE MAY HAVE RESULTED FROM THE FACT THAT AN IMCOMPLETE ADDRESS FOR THE CONSIGNEE WAS FURNISHED FOR USE BY THE CLAIMANT IN ADDRESSING THE SHIPMENT.

IN SUPPORT OF ITS CLAIM, TELETYPE CORPORATION INVITES ATTENTION TO THE PROVISIONS OF ITS LETTER QUOTE 4471, DATED JUNE 7, 1968, WHICH PROVIDES THAT THE PRICE OF $89.90 QUOTED FOR EACH SPLICER IS NET F.O.B. THE CARRIER'S EQUIPMENT, TELETYPE CORPORATION, SKOKIE, ILLINOIS, WHICH SHALL BE THE DESIGNATED DELIVERY POINT FOR ALL PURPOSES OF ANY RESULTING ORDER.

WHEN MATERIAL IS PURCHSED FOR DELIVERY F.O.B. THE SUPPLIER'S PLANT THE TITEL TO THE GOODS AND THE RISK OF LOSS DURING THE TRANSPORTATION PASS TO THE BUYER AT THE TIME DELIVERY IS MADE TO THE CARRIER AT THE POINT OF ORIGIN. PLANTERS' OIL MILL AND GIN CO. V A.K. BURROW CO., 10 F.2D 312; PREMO SPECIALTY MFG. CO. V JERSEY-CREME CO., 200 FED. 352; DOW CHEMICAL CO. V DETROIT CHEMICAL WORKS, 175 N.W. 269.

IF A LOSS OCCURS AFTER TENDER TO THE CARRIER AND DURING THE TRANSPORTATION, THE BUYER AND NOT THE SELLER HAS THE RESPONSIBILITY FOR MAKING ANY CLAIM OR BEARING THE EXPENSE OF ANY LOSS IN SHIPMENT. THE PREPAYMENT OF THE FREIGHT CHARGES BY THE SELLER IN NO WAY PREVENTS THE PASSAGE OF TITLE AND RISK OF LOSS TO THE BUYER WHERE, AS IN THIS CASE, THE CONTRACT OF SALE PROVIDES FOR DELIVERY F.O.B. THE SHIPPING POINT AT ORIGIN. ELECTRIC STORAGE BATTERY CO. V DISTRICT OF COLUMBIA, 155 F.2D 867.

ALTHOUGH THERE IS NOTHING IN THE RECORD WHICH SHOWS ACKNOWLEDGMENT BY THE POST OFFICE OF THE RECEIPT OF THE PARCEL FOR DELIVERY TO DETROIT, MICHIGAN, THERE IS IN THE RECORD THE "NOTICE OF SHIPMENT," WHICH INDICATES BY THE PERFORATED DATE THAT THE SHIPMENT WAS MADE ON JUNE 21, 1966. THERE ALSO IS RECORD INVOICE 928981 WHEREON MR. J.B. NAMEST, BILLING SUPERVISOR OF TELETYPE CORPORATION, CERTIFIES THAT ON JUNE 21, 1968, A SPLICER WAS PLACED IN PARCEL POST FOR TRANSPORTATION TO DETROIT, MICHIGAN.

SINCE THOSE TWO DOCUMENTS AND THE OTHER INFORMATION OF RECORD SEEM REASONABLY TO ESTABLISH THAT CLAIMANT DELIVERED TO THE POST OFFICE A PARCEL CONTAINING A SPLICER CONSIGNED TO DETROIT, MICHIGAN, AND SINCE THE FAILURE OF THE SPLICER PACKAGE TO REACH THE PROPER CONSIGNEE IN DETROIT, MICHIGAN, MAY HAVE RESULTED FROM THE INCOMPLETE ADDRESS FURNISHED FOR USE IN MAILING THE PACKAGE, THE CLAIM OF TELETYPE CORPORATION FOR $90.50 PROPERLY MAY BE CERTIFIED BY YOU FOR PAYMENT.