B-168204, NOV. 25, 1969

B-168204: Nov 25, 1969

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LIABILITY SETTLEMENT OF CARRIER'S CLAIM IN AMOUNT OF $75 IN LIEU OF $538.82 REQUESTED WHERE THREE NEW TAPE RECORDERS WERE LOST IN MOVEMENT OF GOVT. PROPERTY BETWEEN SEVERAL LOCATIONS IS SUSTAINED SINCE CONTRACT SPECIFICATION STATED INVENTORY OF ITEMS WERE NOT AVAILABLE AND UNDER CONTRACT CLAUSE CARRIER ASSUMED UNLIMITED LIABILITY FOR ALL LOSSES IN MOVEMENT SO THAT GOVT. IS NOT REQUIRED TO BEAR BURDEN OF PROOF FOR CAUSE OF UNEXPLAINED LOSS OR THAT INDIVIDUAL ITEMS WERE RELEASED TO CARRIER'S CUSTODY. OR THAT PROPERTY WAS PACKED IN PARTICULAR CARTONS AND LOSS WAS DUE TO NEGLIGENCE OR PILFERAGE OF CARRIER'S EMPLOYEES. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4. AS YOU WERE ADVISED IN OFFICE LETTER OF MAY 16.

B-168204, NOV. 25, 1969

PROPERTY--PUBLIC--DAMAGE, LOSS, ETC.--CONTRACT CARRIER, ETC.--LIABILITY SETTLEMENT OF CARRIER'S CLAIM IN AMOUNT OF $75 IN LIEU OF $538.82 REQUESTED WHERE THREE NEW TAPE RECORDERS WERE LOST IN MOVEMENT OF GOVT. PROPERTY BETWEEN SEVERAL LOCATIONS IS SUSTAINED SINCE CONTRACT SPECIFICATION STATED INVENTORY OF ITEMS WERE NOT AVAILABLE AND UNDER CONTRACT CLAUSE CARRIER ASSUMED UNLIMITED LIABILITY FOR ALL LOSSES IN MOVEMENT SO THAT GOVT. IS NOT REQUIRED TO BEAR BURDEN OF PROOF FOR CAUSE OF UNEXPLAINED LOSS OR THAT INDIVIDUAL ITEMS WERE RELEASED TO CARRIER'S CUSTODY, OR THAT PROPERTY WAS PACKED IN PARTICULAR CARTONS AND LOSS WAS DUE TO NEGLIGENCE OR PILFERAGE OF CARRIER'S EMPLOYEES.

TO COLUMBIA VAN LINES MOVING AND STORAGE CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1969, REQUESTING, IN EFFECT, REVIEW OF OFFICE SETTLEMENT DATED MAY 16, 1969, ALLOWING YOUR CLAIM IN THE AMOUNT OF $75.

AS YOU WERE ADVISED IN OFFICE LETTER OF MAY 16, 1969, OF THE TOTAL AMOUNT CLAIMED, $538.32, THE SUM OF $75 WAS ALLOWED AND THE DIFFERENCE, $463.32, WAS DISALLOWED FOR THE REASONS STATED THEREIN. THIS AMOUNT REPRESENTS THE VALUE OF THREE NEW TAPE RECORDERS AT $154.44 EACH WHICH WERE LOST IN CONNECTION WITH THE SERVICES YOU PERFORMED IN MOVING HOUSING AND URBAN DEVELOPMENT OFFICE EQUIPMENT FROM THE GEICO BUILDING TO 1325 K STREET, N.W., AND THE COMMERCE BUILDING, WASHINGTON, D.C., DURING THE WEEKEND OF DECEMBER 29, 1969, UNDER GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT NO. GS-03T-363. THE AMOUNT OF $75 WHICH WAS ALLOWED BY THE MAY 16 SETTLEMENT REPRESENTED REFUND OF UNEARNED DISCOUNT ERRONEOUSLY TAKEN FROM THE CONTRACT PRICE.

THE RECORD REVEALS THAT THE BASES OF YOUR DENIAL OF LIABILITY FOR THE MISSING TAPE RECORDERS ARE THAT NO EVIDENCE HAS BEEN PROVIDED BY THE GOVERNMENT OF YOUR EMPLOYEES' PILFERAGE OR NEGLIGENCE, AND THAT THERE WAS NO ASSURANCE THAT THE ITEMS WERE ACTUALLY PACKED INTO CARTONS OR THAT YOUR EMPLOYEES HAD THE KNOWLEDGE THAT THE TAPE RECORDERS WERE SO PACKED. YOU STATE THAT YOUR FIRM CANNOT STIPULATE ITS NONLIABILITY BUT THAT YOU FEEL THAT THE GOVERNMENT CANNOT HOLD YOU LIABLE FOR ACTIONS WHICH CANNOT BE SPECIFICALLY ATTRIBUTED TO YOUR EMPLOYEES. IT IS YOUR VIEW, IN EFFECT, THAT THE BURDEN OF PROVING THAT THE LOSS WAS OCCASIONED BY YOUR EMPLOYEES' NEGLIGENCE IS ON THE GOVERNMENT.

CONTRACT GS-03T-363 WAS AWARDED TO YOU ON DECEMBER 27, 1967, AND PROVIDED THAT YOU FURNISH MOVING SERVICES INCLUDING PADDING, PACKING, AND/OR CRATING AS MAY BE REQUIRED FOR SAFE TRANSPORTATION, PICKUP, AND LOADING OF THE PROPERTY, TRANSPORTATION TO DESTINATION, DELIVERY OF THE PROPERTY, AND PLACEMENT INSIDE ROOMS AS MAY BE REQUIRED. ALSO, YOU WERE REQUIRED TO FURNISH SUPERVISION, LABOR, AND MATERIALS AND EQUIPMENT NECESSARY TO PERFORM ALL THE SERVICES CONTEMPLATED UNDER THE SOLICITATION IN AN ORDERLY, TIMELY, AND EFFICIENT MANNER TO THE COMPLETE SATISFACTION OF THE GOVERNMENT SUPERVISOR IN CHARGE.

PARAGRAPH 1 OF THE SPECIFICATIONS PROVIDED: "AN APPROPRIATE INVENTORY OF THE ITEMS TO BE MOVED IS NOT AVAILABLE.' MORE IMPORTANTLY, PARAGRAPH 6 OF THE SPECIFICATIONS PROVIDED, IN PERTINENT PART, AS FOLLOWS: "6. LIABILITY OF THE CONTRACTOR. THE CONTRACTOR SHALL ASSUME FULL LIABILITY, WITHOUT LIMITATION, FOR ANY AND ALL PROPERTY LOST OR DAMAGED IN THE MOVEMENT. * *

UNDER PARAGRAPH 6, YOU ASSUMED LIABILITY FOR ALL LOSSES WHICH OCCURRED DURING TRANSIT, AND NO LIMITATION TO THAT LIABILITY WAS PROVIDED FOR IN THE CONTRACT. THE FACT THAT YOU ASSUMED THIS LIABILITY IN THE FACE OF THE CONTRACT ADMONITION THAT NO INVENTORY WAS AVAILABLE WOULD SEEM TO NEGATE YOUR CONTENTION THAT THERE WAS NO ASSURANCE THAT THE TAPE RECORDERS WERE IN FACT PACKAGED FOR TRANSIT AS REQUIRED BY PARAGRAPH 3 OF THE SPECIFICATIONS. WE FIND NOTHING IN THE CONTRACT THAT THE GOVERNMENT WAS REQUIRED TO BEAR THE BURDEN OF PROOF AS TO THE CAUSE OF LOSS OR THAT THE GOVERNMENT HAD TO SHOW THAT INDIVIDUAL ITEMS OF PROPERTY WERE RELEASED TO YOUR CUSTODY; THAT SUCH PROPERTY WAS PACKED IN PARTICULAR CARTONS; AND THAT THE LOSS THEREOF WAS DUE TO THE NEGLIGENCE OR PILFERAGE OF YOUR EMPLOYEES.

THE COURT OF CLAIMS CONSIDERED A CONTRACT CLAUSE SOMEWHAT SIMILAR TO THAT CONTAINED IN PARAGRAPH 6 OF YOUR CONTRACT IN THE CASE OF INLAND TRUCKING CORPORATION V UNITED STATES, 281 F.2D 457 (1960). THERE THE COURT REGARDED THE CLAUSE AS AN ABSOLUTE UNDERTAKING OF LIABILITY FOR LOSS DURING CONTRACT PERFORMANCE. WE FEEL THAT THE SAME STANDARD OF LIABILITY WAS APPLICABLE TO YOUR CONTRACT WITH GSA.

IN ACCORDANCE WITH THESE CONSIDERATIONS, THE SETTLEMENT OF MAY 16, 1969, IS SUSTAINED.