B-169887, JUN. 15, 1970

B-169887: Jun 15, 1970

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GOVERNMENT LIABILITY CLAIM IN AMOUNT OF $119.90 BELIEVED DUE AS RESULT OF LOSS BY AIR FORCE OF CLAIMANTS CYLINDER IN WHICH CLAIMANT DELIVERED ARGON GAS ORDERED BY GOVERNMENT SHOULD BE ALLOWED SINCE RELATIONSHIP CREATED BY CLAIMANT AND GOVERNMENT WAS THAT OF BAILOR AND BAILEE. TO CAPTAIN CRAFT: REFERENCE IS MADE TO LETTER BCRF OF MAY 18. REQUESTING A DECISION WHETHER A & B WELDING SUPPLY COMPANY SHOULD BE PAID THE AMOUNT OF $119.90 CLAIMED AS THE RESULT OF THE LOSS OF A CYLINDER IN WHICH ARGON GAS WAS DELIVERED TO ELLSWORTH AIR FORCE BASE. IT IS REPORTED THAT A SINGLE CYLINDER OF GAS WAS ORDERED BY TELEPHONE FROM THE COMPANY AND THAT USUALLY THE GAS IS DELIVERED IN CYLINDERS PROVIDED BY THE GOVERNMENT.

B-169887, JUN. 15, 1970

PROPERTY--PRIVATE--DAMAGE, LOSS, ETC.--GOVERNMENT LIABILITY CLAIM IN AMOUNT OF $119.90 BELIEVED DUE AS RESULT OF LOSS BY AIR FORCE OF CLAIMANTS CYLINDER IN WHICH CLAIMANT DELIVERED ARGON GAS ORDERED BY GOVERNMENT SHOULD BE ALLOWED SINCE RELATIONSHIP CREATED BY CLAIMANT AND GOVERNMENT WAS THAT OF BAILOR AND BAILEE, AND CONDITIONS OF BAILMENT, PRINTED ON COMPANY'S INVOICE BY BAILOR, PLACED LIABILITY FOR DETENTION AND LOSS OF CYLINDER UPON BAILEE. SEE 24 COMP. GEN. 138 (1944).

TO CAPTAIN CRAFT:

REFERENCE IS MADE TO LETTER BCRF OF MAY 18, 1970, REQUESTING A DECISION WHETHER A & B WELDING SUPPLY COMPANY SHOULD BE PAID THE AMOUNT OF $119.90 CLAIMED AS THE RESULT OF THE LOSS OF A CYLINDER IN WHICH ARGON GAS WAS DELIVERED TO ELLSWORTH AIR FORCE BASE.

IT IS REPORTED THAT A SINGLE CYLINDER OF GAS WAS ORDERED BY TELEPHONE FROM THE COMPANY AND THAT USUALLY THE GAS IS DELIVERED IN CYLINDERS PROVIDED BY THE GOVERNMENT. SINCE A GOVERNMENT-OWNED CYLINDER WAS NOT AVAILABLE, THE GAS WAS SUPPLIED IN A COMPANY-FURNISHED CYLINDER. RECEIPT OF THE CYLINDER BY THE GOVERNMENT IS ACKNOWLEDGED, BUT IT IS REPORTED THAT IT WAS SUBSEQUENTLY LOST BY THE GOVERNMENT AND THAT ATTEMPTS TO FIND IT HAVE BEEN UNSUCCESSFUL. IN THE CIRCUMSTANCES, THE CONTRACTING OFFICER RECOMMENDS THAT THE CLAIM BE PAID IN FULL. SINCE THE GOVERNMENT ORDERED ARGON GAS, WHICH THE COMPANY HAS BEEN PAID FOR, AND DID NOT PROVIDE FOR PAYMENT FOR THE CYLINDER, YOU QUESTION THE LEGALITY OF THE PROPOSED PAYMENT.

THE PRINTED CONDITIONS ON THE COMPANY'S INVOICE ACCOMPANYING THE ARGON GAS STATE THAT LOANED CYLINDERS ARE THE PROPERTY OF THE COMPANY AND ARE SUBJECT TO DEMURRAGE FOR LATE RETURN AND THAT THERE WILL BE A CHARGE FOR ANY LOSS OR DAMAGE TO SUCH CYLINDERS.

THE RELATIONSHIP CREATED BY THE COMPANY AND THE GOVERNMENT WAS THAT OF A BAILOR AND BAILEE. 24 COMP. GEN. 138 (1944). THE CONDITIONS OF THE BAILMENT IMPOSED BY THE BAILOR PLACE THE LIABILITY FOR DETENTION AND LOSS OF THE CYLINDER UPON THE BAILEE.

ACCORDINGLY, THE CLAIM SHOULD BE ALLOWED.

EXCEPT FOR THE CONTRACTING OFFICER'S REPORT, THE ENCLOSURES WHICH ACCOMPANIED THE MAY 18 LETTER ARE RETURNED.