B-22787, FEBRUARY 17, 1942, 21 COMP. GEN. 776

B-22787: Feb 17, 1942

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THAT THERE HAS BEEN DELAY IN DELIVERY UNDER A GOVERNMENT STANDARD FORM OF SUPPLY CONTRACT IS NOT. THE DATE OF SHIPMENT FOR THE PURPOSE OF FIXING THE CONTRACTOR'S LIABILITY UNDER A CONTRACT PROVISION FOR LIQUIDATED DAMAGES IN THE EVENT OF DELAY IN SHIPMENT OF THE CONTRACT SUPPLIES IS THE DATE ON WHICH THE SUPPLIES ARE ACTUALLY RELEASED TO A RAILROAD OR TRUCKING COMPANY. 1942: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 24. WHERE IT WAS DELIVERED TO THE SANTA FE RAILWAY COMPANY FOR DELIVERY TO ITS FINAL DESTINATION. DETERMINE THAT SHIPMENT WAS MADE AS OF THE DATE OF DELIVERY TO THE RAILROAD AT LOS ANGELES. WHICH WAS LATER THAN THE SHIPMENT DATE DESIGNATED. A COPY OF THIS FINDING IS ATTACHED.

B-22787, FEBRUARY 17, 1942, 21 COMP. GEN. 776

CONTRACTS - LIQUIDATED DAMAGES - DETERMINATION OF "SHIPMENT" DATE AN ADMINISTRATIVE DETERMINATION, BASED UPON THE ASSUMED APPLICABILITY OF A DECISION OF THIS OFFICE TO THE CIRCUMSTANCES OF A PARTICULAR CASE, THAT THERE HAS BEEN DELAY IN DELIVERY UNDER A GOVERNMENT STANDARD FORM OF SUPPLY CONTRACT IS NOT, STRICTLY SPEAKING, A FINDING OF FACT AS TO THE EXTENT AND CAUSE OF DELAY WITHIN THE MEANING OF THE CONTRACT PROVISIONS RELATING TO THE FINALITY OF ADMINISTRATIVE DETERMINATIONS AS TO SUCH MATTERS. THE DATE OF SHIPMENT FOR THE PURPOSE OF FIXING THE CONTRACTOR'S LIABILITY UNDER A CONTRACT PROVISION FOR LIQUIDATED DAMAGES IN THE EVENT OF DELAY IN SHIPMENT OF THE CONTRACT SUPPLIES IS THE DATE ON WHICH THE SUPPLIES ARE ACTUALLY RELEASED TO A RAILROAD OR TRUCKING COMPANY, EITHER BY THE CONTRACTOR OR ITS FORWARDING AGENT, SUCH AS A CARLOADING COMPANY, AT THE POINT SPECIFIED IN THE CONTRACT FOR SHIPMENT. 16 COMP. GEN. 918, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, FEBRUARY 17, 1942:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 24, 1941, AS FOLLOWS:

ON JUNE 24, THIS DEPARTMENT ISSUED AN ADMINISTRATIVE FINDING (M. 30864) ON AN APPEAL BY THE GRINNELL COMPANY OF THE PACIFIC FROM THE CONTRACTING OFFICER'S FINDING OF FACT ON A BUREAU OF RECLAMATION CONTRACT 12R-10563. IN THIS CASE, THE CONTRACT CALLED FOR SHIPMENT OF CERTAIN EQUIPMENT FROM ELKHART, INDIANA. THE HENRY WEISS MANUFACTURING COMPANY, OF ELKHART (THE SUBCONTRACTOR OF THE GRINNELL COMPANY), DELIVERED THE EQUIPMENT TO THE NATIONAL CARLOADING COMPANY AT ELKHART WITHIN THE TIME DESIGNATED BY THE CONTRACT. THE EQUIPMENT WENT AS A PART OF A CARLOAD LOT FROM ELKHART TO LOS ANGELES, CALIFORNIA, WHERE IT WAS DELIVERED TO THE SANTA FE RAILWAY COMPANY FOR DELIVERY TO ITS FINAL DESTINATION. THE CONTRACTING OFFICER'S FINDINGS AND THE ADMINISTRATIVE FINDING, SUPRA, DETERMINE THAT SHIPMENT WAS MADE AS OF THE DATE OF DELIVERY TO THE RAILROAD AT LOS ANGELES, WHICH WAS LATER THAN THE SHIPMENT DATE DESIGNATED, AND IMPOSED LIQUIDATED DAMAGES ACCORDINGLY. A COPY OF THIS FINDING IS ATTACHED.

WE ARE ADVISED INFORMALLY THAT FINAL PAYMENT UNDER THE CONTRACT IS STILL PENDING IN YOUR OFFICE. AS WILL BE OBSERVED, THIS FINDING IS BASED ON A DECISION OF THE COMPTROLLER GENERAL IN THE CASE OF THE MAREMONT AUTOMOTIVE PRODUCTS, INC. (16 COMP. GEN. 918).

ALSO, THERE IS NOW PENDING BEFORE THIS DEPARTMENT A SIMILAR APPEAL. THIS CASE THE GENERAL ELECTRIC COMPANY AGREED TO MAKE SHIPMENT OF CERTAIN ELECTRICAL SUPPLIES FROM BRIDGEPORT, CONNECTICUT, AND FROM YORK, PENNSYLVANIA. DELIVERY OF THESE SUPPLIES WAS MADE TO THE NATIONAL CARLOADING COMPANY AT BRIDGEPORT, AND TO THE UNIVERSAL CARLOADING COMPANY AT YORK, WITHIN THE TIME DESIGNATED BY THE CONTRACT. IN EACH CASE THE CARLOADING COMPANIES MOVED THE FREIGHT TO THEIR DISTRIBUTION CENTERS IN LOS ANGELES, FROM WHENCE IT WAS CARRIED BY THE NEVADA CONSOLIDATED FAST FREIGHT AND THE UNION PACIFIC RAILROAD, RESPECTIVELY, TO ITS DESTINATION AT BOULDER DAM. THE CONTRACTING OFFICER, BASING HIS CONCLUSION ON THE ABOVE COMPTROLLER GENERAL'S DECISION, FOUND THAT "SHIPMENT" HAD NOT BEEN MADE UNTIL THE CARLOADING COMPANY DELIVERED THE MATERIAL TO THE ,CARRIERS" IN LOS ANGELES, AND ASSESSED LIQUIDATED DAMAGES ACCORDINGLY. COPIES OF THE CONTRACTING OFFICER'S FINDING OF FACT AND THE APPEAL BY THE GENERAL ELECTRIC COMPANY ARE ATTACHED.

THE FACTS IN BOTH OF THE ABOVE CASES APPEAR TO PRESENT AN IDENTICAL PROBLEM. BRIEFLY, THE QUESTION IS WHETHER DELIVERY OF GOODS BY THE VENDOR TO A CARLOADING COMPANY OR A SIMILAR FORWARDING AGENT CONSTITUTES "SHIPMENT" WITHIN THE MEANING OF THE CONTRACT, WHERE THE CONTRACT MERELY PROVIDES THAT "SHIPMENT" SHALL BE MADE FROM A DESIGNATED POINT WITHIN A CERTAIN NUMBER OF DAYS. THE ACTING COMPTROLLER GENERAL IN THE MAREMONT CASE, SUPRA, STATES ON PAGE 920:

"YOU NOW URGE THAT THE LIQUIDATED DAMAGES ASSESSED FOR THE 2 DAYS' DELAY IN SHIPMENT, ALSO, SHOULD BE REMITTED BECAUSE YOU CONSIGNED THE SUPPLIES TO THE NATIONAL CARLOADING CO. ON MARCH 4, 1935, THE FIRST BUSINESS DAY FOLLOWING THE CONTRACT DELIVERY DATE, MARCH 3, 1935, WHICH FELL ON A SUNDAY. THE RECORD SHOWS THAT THE SAID NATIONAL CARLOADING CO., A FORWARDING AGENT, DID NOT RELEASE THE SUPPLIES TO THE RAILROAD COMPANY AT CHICAGO FOR SHIPMENT UNTIL MARCH 5, 1935, BUT YOUR POSITION AS TO THIS IS THAT THE FORWARDING COMPANY WAS ITSELF A CARRIER AND, THEREFORE, THAT DELIVERY TO IT WAS SUFFICIENT TO TOLL LIQUIDATED DAMAGES.

"VIEWING THE CONTRACT IN ITS MOST FAVORABLE LIGHT FOR YOU IT REQUIRED YOU TO "SHIP" THE SUPPLIES WITHIN 10 DAYS, AND WHILE, UNDER CERTAIN CONDITIONS, A FORWARDING AGENT IS "AS TO A PERSON WITH WHOM HE CONTRACTS FOR THE DELIVERY OF THE GOODS, A COMMON CARRIER AND LIABLE AS SUCH," 10 CORPUS JURIS 50, IT IS CLEAR THAT IN THIS CASE THE FORWARDING COMPANY WAS YOUR AGENT, AND AS BETWEEN YOU AND THE GOVERNMENT YOU WERE RESPONSIBLE FOR THE DELAYS OF SUCH AGENT. THE CONTRACT REQUIRED YOU TO SHIP THE SUPPLIES WITHIN 10 DAYS OR PAY LIQUIDATED DAMAGES FOR DELAY AND THE DELIVERY BY YOU TO A CARLOADING COMPANY WHICH MIGHT HAVE DELAYED SEVERAL DAYS IN RELEASING THE SUPPLIES TO A RAILROAD COMPANY FOR ACTUAL SHIPMENT FROM CHICAGO, WAS NOT A SHIPMENT WITHIN THE MEANING OF THE CONTRACT PROVISIONS FIXING YOUR LIABILITY FOR LIQUIDATED DAMAGES FOR DELAY.'

SINCE THE FINDING IN THE GRINNELL CASE, SOME QUESTION HAS ARISEN AS TO THE PROPER INTERPRETATION OF THE LANGUAGE ABOVE QUOTED, ITS APPLICATION TO THE FACTS IN BOTH THE GRINNELL AND THE GENERAL ELECTRIC CASES, AND SIMILAR CASES WHICH MAY ARISE IN THE FUTURE. IF THE INTERPRETATION OF THE COMPTROLLER GENERAL'S DECISION, AS INDICATED IN THE GRINNELL CASE, IS FOLLOWED, A RATHER ANOMALOUS SITUATION WILL EXIST, WHEREBY IT WILL BE HELD THAT NO "SHIPMENT" IS MADE WITHIN THE MEANING OF THE CONTRACT,ALTHOUGH THE GOODS MAY HAVE MOVED NEARLY ACROSS THE CONTINENT, AS IN THE INSTANT CASES, AND PERHAPS WITHIN THE SAME OR A SHORTER PERIOD OF TIME THAN IF DELIVERY HAD BEEN MADE TO A WELL RECOGNIZED COMMON CARRIER.

IN CONNECTION WITH THIS PROBLEM, YOUR OPINION IN REGARD TO THE FOLLOWING QUESTIONS WILL BE APPRECIATED:

1. DOES DELIVERY TO A CARLOADING COMPANY OR A SIMILAR FORWARDING AGENT, IN ANY CIRCUMSTANCES, CONSTITUTE SHIPMENT WITHIN THE MEANING OF THE CONTRACT?

2. IF THERE ARE CIRCUMSTANCES IN WHICH DELIVERY TO A CARLOADING COMPANY MAY CONSTITUTE SHIPMENT, WHAT TESTS ARE APPLIED IN A GIVEN CASE TO DETERMINE WHETHER SUCH DELIVERY DOES CONSTITUTE SHIPMENT?

3. DOES THAT PART OF THE COMPTROLLER GENERAL'S DECISION, SUPRA, READING "* * * WHILE, UNDER CERTAIN CONDITIONS, A FORWARDING AGENT IS "AS TO THE PERSON WITH WHOM HE CONTRACTS FOR THE DELIVERY OF THE GOODS, A COMMON CARRIER AND LIABLE AS SUCH" * * *" ( ITALICS SUPPLIED), PURPORT TO DISTINGUISH BETWEEN DIFFERENT KINDS OF COMMON CARRIERS? DOES THIS MEAN THAT A TRANSPORTATION AGENCY MAY BE A COMMON CARRIER AS TO THE PERSON WITH WHOM IT CONTRACTS, THAT IS, THE SHIPPER, BUT NOT AS TO THE CONSIGNEE, AND THAT IN THE LATTER EVENT THERE IS NO SHIPMENT AS REQUIRED BY THE CONTRACT? IF THIS IS TRUE, WHAT TESTS DETERMINE IN EACH CASE WHETHER DELIVERY TO A PARTICULAR COMMON CARRIER MEETS THE REQUIREMENTS?

4. REFERRING TO THAT PART OF THE COMPTROLLER GENERAL'S DECISION, SUPRA, READING "* * * DELIVERY BY YOU TO A CARLOADING COMPANY WHICH MIGHT HAVE DELAYED SEVERAL DAYS * * * WAS NOT A SHIPMENT WITHIN THE MEANING OF THE CONTRACT * * *" DOES THIS IMPLY THAT ONE OF THE TESTS FOR DETERMINING WHETHER A TRANSPORTATION AGENCY IS A COMMON CARRIER, DELIVERY TO WHICH WILL CONSTITUTE SHIPMENT, IS WHETHER THERE IS IN FACT DELAY IN THE MOVEMENT OF THE GOODS?

5. IF IT IS YOUR OPINION THAT "SHIPMENT" IS NOT MADE BY MERE DELIVERY TO A CARLOADING COMPANY, THEN DO YOU BELIEVE THAT THERE IS BASIS FOR IMPOSING LIQUIDATED DAMAGES FOR DELAY WHERE THE GOODS ACTUALLY DO ARRIVE AT THEIR DESTINATION IN DUE COURSE?

FOR YOUR INFORMATION IN CONSIDERING THESE QUESTIONS, WE ARE ATTACHING A COPY OF A BRIEF FILED BY ATTORNEYS NORMAN, QUIRK, AND GRAHAM, IN BEHALF OF THE NATIONAL CARLOADING COMPANY IN THE GRINNELL CASE. YOUR OPINION IN REGARD TO THE ABOVE WILL BE APPRECIATED AND WILL BE OF GREAT ASSISTANCE IN THE DISPOSITION OF FUTURE CASES.

THE ADMINISTRATIVE FINDING MADE AS A RESULT OF AN APPEAL BY THE GRINNELL CO. OF THE PACIFIC FROM A FINDING OF FACT BY THE CONTRACTING OFFICER IS AS FOLLOWS:

ON AUGUST 18, 1939, INVITATION FOR BIDS NO. 44372-A WAS ISSUED FOR FURNISHING, AMONG OTHER ITEMS, 16 SHOWER CABINETS UNDER ITEM 10 OF SCHEDULE NO. 3 FOR THE PARKER DAM PROJECT. THE GRINNELL COMPANY OF THE PACIFIC, BEING THE LOWEST BIDDER AS TO PRICE, WAS AWARDED THE CONTRACT AND AGREED TO MAKE DELIVERY F.O.B. CARS AT EARP, CALIFORNIA, AND TO MAKE SHIPMENT FROM ELKHART, INDIANA, WITHIN 15 DAYS FROM THE RECEIPT OF NOTICE OF THE AWARD. NOTICE WAS RECEIVED BY THE CONTRACTOR ON SEPTEMBER 14, 1939, THUS ESTABLISHING THE SHIPPING DATE AS SEPTEMBER 29, 1939.

ITEM 10 OF SCHEDULE NO. 3 CALLED FOR 16 SHOWER CABINETS OF THE TYPE MANUFACTURED BY THE HENRY WEISS MANUFACTURING COMPANY, OF ELKHART, INDIANA. A GOVERNMENT BILL OF LADING NO. I-801308 (I-801318) COVERING ITEM 10 WAS FURNISHED TO THE GRINNELL COMPANY BY THE BUREAU OF RECLAMATION AND THE GRINNELL COMPANY IN TURN FORWARDED THE BILL OF LADING TO THE HENRY WEISS MANUFACTURING COMPANY, TOGETHER WITH ITS ORDER AND SHIPPING INSTRUCTIONS. IT APPEARS THAT THE WEISS COMPANY DELIVERED THE MERCHANDISE TO THE NATIONAL CARLOADING COMPANY, ELKHART, INDIANA, ON OR BEFORE SEPTEMBER 27, 1939, AS IS INDICATED BY THE IMPRINT OF THE TIME STAMP OF THE NATIONAL CARLOADING COMPANY ON A PHOTOSTATIC COPY OF THE GOVERNMENT BILL OF LADING SUBMITTED BY THE CONTRACTOR. THE SHIPMENT TRAVELED AS PART OF A CARLOAD LOT FROM ELKHART TO LOS ANGELES, CALIFORNIA, WHERE IT WAS DELIVERED TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, WAYBILLED TO EARP, CALIFORNIA, ON OCTOBER 5, 1939.

IN COMPUTING PAYMENT UNDER THE CONTRACT A REDUCTION OF $30 WAS MADE ON ACCOUNT OF DELAY IN ACCORDANCE WITH THE PROVISIONS OF THE CONTRACT WHEREBY LIQUIDATED DAMAGES AT THE RATE OF $5 PER DAY FOR FAILURE TO MAKE SHIPMENT WITHIN THE SPECIFIED TIME WAS PROVIDED.

THE CONTRACTOR PRESENTED A CLAIM FOR AN EXTENSION OF TIME WHICH WAS DENIED BY THE CONTRACTING OFFICER IN FINDINGS OF FACT ON MAY 10, 1940, IN WHICH HE STATED:

"3. IN COMPUTING THE DATE OF SHIPMENT, THE DATE SHOWN ON COPY OF A.T. AND S.F. RY. CO. FREIGHT BILL, OCTOBER 5, 1939, WAS USED, WHICH SHIPMENT WAS MADE FROM LOS ANGELES, CALIFORNIA, RATHER THAN FROM ELKHART, INDIANA, INVOLVING A DELAY OF 6 CALENDAR DAYS. AS A RESULT THERE ARISES THE QUESTION OF WHETHER LIQUIDATED DAMAGES ARE ASSESSABLE UNDER THE PARAGRAPH OF THE CONTRACT ENTITLED " DELAYS--- LIQUIDATED DAMAGES.'

"4. THE CONTRACTOR CONTENDS THAT THE MATERIAL WAS SHIPPED ON GOVERNMENT BILL OF LADING NO. I-801318 FROM ELKHART, INDIANA, SEPTEMBER 26, 1939. REFERENCE TO THE ENCLOSED COPY OF A.T. AND S.F. RY. CO. FREIGHT BILL IT IS EVIDENT THAT THE MATERIAL UNDER ITEM 10 MOVED IN A CARLOAD OF MATERIAL FORWARDED TO LOS ANGELES, CALIFORNIA, BY THE NATIONAL CARLOADING CORPORATION AND CONSIGNED TO ITSELF ON COMMERCIAL BILL OF LADING, AND SHIPPED FROM LOS ANGELES, CALIFORNIA, TO EARP, CALIFORNIA, OCTOBER 5, 1939, ON GOVERNMENT BILL OF LADING NO. I-801318 ON WHICH THE BUREAU OF RECLAMATION IS SHOWN AS CONSIGNEE. AS SHIPMENT REQUIRED UNDER THE CONTRACT WAS MADE ON GOVERNMENT BILL OF LADING FROM LOS ANGELES TO EARP, CALIFORNIA, ON OCTOBER 5, 1939, THERE OCCURRED A DELAY OF 6 CALENDAR DAYS, WHICH IS NOT EXCUSABLE UNDER THE TERMS OF THE CONTRACT, AND THE CONTRACTOR'S CLAIM FOR AN EXTENSION OF TIME IS DENIED.'

ON MAY 27, 1940, THE CONTRACTOR FILED AN APPEAL WITH THE SECRETARY OF THE INTERIOR FROM THE CONTRACTING OFFICER'S FINDINGS.

IT IS THE CONTENTION OF THE CONTRACTOR THAT THE DELIVERY OF THE MERCHANDISE TO THE NATIONAL CARLOADING COMPANY UNDER THE GOVERNMENT BILL OF LADING AT ELKHART, INDIANA, ON SEPTEMBER 27, 1939, CONSTITUTED PERFORMANCE, ON ITS PART, OF THE PROVISIONS OF THE CONTRACT WITHIN THE SPECIFIED TIME LIMIT. THE CONTRACTOR RELIES UPON THE COPY OF THE GOVERNMENT BILL OF LADING BEARING THE TIME STAMP OF THE NATIONAL CARLOADING COMPANY AS OF SEPTEMBER 27, 1939, THE INVOICE OF THE WEISS COMPANY WHICH INDICATES THAT THE MERCHANDISE WAS DELIVERED FOR SHIPMENT TO THE NATIONAL CARLOADING COMPANY UNDER THE GOVERNMENT BILL OF LADING ON SEPTEMBER 26, 1939, AT ELKHART, INDIANA, AND THE STATEMENT OF THE NATIONAL CARLOADING COMPANY TO THE EFFECT THAT THE GOVERNMENT BILL OF LADING WAS THE CARRYING DOCUMENT FROM ELKHART, INDIANA, TO EARP, CALIFORNIA, AND THAT THE SANTA FE RAILWAY, AS THE DELIVERING CARRIER, PICKED UP THE ORIGINAL GOVERNMENT BILL OF LADING AT EARP, CALIFORNIA, IN ACCORDANCE WITH CUSTOMARY PRACTICE.

IN A SIMILAR CASE, MAREMONT AUTOMOTIVE PRODUCTS, INC. (16 COMP. GEN. 918, 380 (1937) (, THE ACTING COMPTROLLER GENERAL SAID:

"YOU NOW URGE THAT THE LIQUIDATED DAMAGES ASSESSED FOR THE 2 DAYS' DELAY IN SHIPMENT, ALSO, SHOULD BE REMITTED BECAUSE YOU CONSIGNED THE SUPPLIES TO THE NATIONAL CARLOADING CO. ON MARCH 4, 1935, THE FIRST BUSINESS DAY FOLLOWING THE CONTRACT DELIVERY DATE, MARCH 3, 1935, WHICH FELL ON A SUNDAY. THE RECORD SHOWS THAT THE SAID NATIONAL CARLOADING CO., A FORWARDING AGENT, DID NOT RELEASE THE SUPPLIES TO THE RAILROAD COMPANY AT CHICAGO, FOR SHIPMENT UNTIL MARCH 5, 1935, BUT YOUR POSITION AS TO THIS IS THAT THE FORWARDING COMPANY WAS ITSELF A CARRIER AND, THEREFORE, THAT DELIVERY TO IT WAS SUFFICIENT TO TOLL LIQUIDATED DAMAGES.

"VIEWING THE CONTRACT IN ITS MOST FAVORABLE LIGHT FOR YOU IT REQUIRED YOU TO "SHIP" THE SUPPLIES WITHIN 10 DAYS, AND WHILE, UNDER CERTAIN CONDITIONS, A FORWARDING AGENT IS "AS TO A PERSON WITH WHOM HE CONTRACTS FOR THE DELIVERY OF THE GOODS, A COMMON CARRIER AND LIABLE AS SUCH," 10 CORPUS JURIS 50, IT IS CLEAR THAT IN THIS CASE THE FORWARDING COMPANY WAS YOUR AGENT, AND AS BETWEEN YOU AND THE GOVERNMENT YOU WERE RESPONSIBLE FOR THE DELAYS OF SUCH AGENT. THE CONTRACT REQUIRED YOU TO SHIP THE SUPPLIES WITHIN 10 DAYS OR PAY LIQUIDATED DAMAGES FOR DELAY AND THE DELIVERY BY YOU TO A CARLOADING COMPANY WHICH MIGHT HAVE DELAYED SEVERAL DAYS IN RELEASING THE SUPPLIES TO A RAILROAD COMPANY FOR ACTUAL SHIPMENT FROM CHICAGO, WAS NOT A SHIPMENT WITHIN THE MEANING OF THE CONTRACT PROVISIONS FIXING YOUR LIABILITY FOR LIQUIDATED DAMAGES FOR DELAY.' APPLYING THE PRINCIPLES OF THIS DECISION, DELIVERY BY THE WEISS COMPANY TO THE NATIONAL CARLOADING COMPANY DID NOT CONSTITUTE A SHIPMENT FROM ELKHART, INDIANA, WITHIN THE TIME LIMIT SET FORTH IN THE CONTRACT AND THAT THE POSITION OF THE NATIONAL CARLOADING COMPANY, SO FAR AS THE GOVERNMENT IS CONCERNED, WAS THAT OF A SHIPPER ITSELF AND NOT A COMMON CARRIER. WITH RESPECT TO THE STATUS OF CARLOADING COMPANIES AS COMMON CARRIERS, IT WAS STATED IN A DECISION OF THE INTERSTATE COMMERCE COMMISSION, ACME FAST FREIGHT, INCORPORATED, ET AL., COMMON CARRIER APPLICATION, NO. MC-2200, DECIDED JULY 24, 1939, THAT:

"EVEN THOUGH THESE FORWARDERS MAY HAVE THE STATUS OF COMMON CARRIERS AT COMMON LAW, THEY OCCUPY THE POSITION OF SHIPPERS, AND ARE SHIPPERS BOTH IN FACT AND IN LAW, WHEN FOR THE TRANSPORTATION OF THE GOODS ENTRUSTED TO THEIR CARE FOR FORWARDING, THEY UTILIZE THE SERVICES OF RAIL, WATER, OR TRUCK CARRIERS WHICH ARE CONTROLLED BY THE PROVISIONS OF THE INTERSTATE COMMERCE ACT. INTERSTATE COMMERCE COMMISSION V. DELAWARE, L. AND W.R. CO., 220 U.S. 235, GREAT NORTHERN RY. CO. V. O CONNOR, 232 U.S. 508, LEHIGH VALLEY R. CO. V. UNITED STATES, 243 U.S. 444, CALIFORNIA COMMERCIAL ASSN. V. WELLS, FARGO AND CO., 14 I.C.C. 422, UNITED STATES V. MILWAUKEE REFRIGERATOR TRANSIT O., 145 FED. 1007, WAREHOUSE CO. V. UNITED STATES, 283 U.S. 501, BALTIMORE AND O.R. CO. V. UNITED STATES, 305 U.S. 507. * *

IN THE LIGHT OF THESE DECISIONS THE SHIPPING DATE IS DETERMINED TO HAVE BEEN OCTOBER 5, 1939, FROM LOS ANGELES, CALIFORNIA, ON WHICH DATE THE SHIPMENT WAS DELIVERED TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, A COMMON CARRIER, FOR DELIVERY TO EARP, CALIFORNIA. THE REDUCTION IN PAYMENT OF $30 ON ACCOUNT OF A DELAY OF SIX CALENDAR DAYS WAS, THEREFORE, A PROPER ONE UNDER THE TERMS OF THE CONTRACT. THE CONTRACTOR'S APPEAL FROM THE FINDINGS OF FACT OF THE CONTRACTING OFFICER IS ACCORDINGLY DENIED AND THE FINDINGS AFFIRMED AS RENDERED.

UNDER THE TERMS AND CONDITIONS OF THE CITED CONTRACT, CONSISTING OF THE CONTRACTOR'S ACCEPTED BID DATED AUGUST 28, 1939, IT WAS AGREED THAT THE GRINNELL CO. OF THE PACIFIC WOULD MAKE SHIPMENT OF ITEM 10 OF SCHEDULE 3 OF THE CONTRACTOR'S BID SCHEDULE FROM ELKHART, IND., WITHIN 15 CALENDAR DAYS AFTER RECEIPT OF NOTICE OF AWARD OF CONTRACT OR BE CHARGED WITH LIQUIDATED DAMAGES AT THE RATE OF $5 PER DAY FOR EACH DAY OF DELAY IN MAKING SHIPMENT, SUBJECT TO CERTAIN CONDITIONS NOT HERE MATERIAL.

UNDER THE GOVERNMENT'S STANDARD FORM OF SUPPLY CONTRACT CONTAINING A LIQUIDATED DAMAGE PROVISION SUCH AS THE ONE INVOLVED IN THIS CASE, THE QUESTION WHETHER A CONTRACTOR IS CHARGEABLE WITH LIQUIDATED DAMAGES DEPENDS UPON THE TERMS OF THE CONTRACT AND THE FACTS AS FOUND BY THE CONTRACTING OFFICER, OR BY THE HEAD OF THE DEPARTMENT CONCERNED, ON APPEAL THEREFROM. SEE 17 COMP. GEN. 503, AND THE DECISIONS THERE CITED.

IN THE INSTANT CASE, THE ADMINISTRATIVE DETERMINATION THAT THE 16 SHOWER CABINETS WERE NOT SHIPPED UNTIL OCTOBER 5, 1939, THE DATE ON WHICH THEY WERE DELIVERED TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY CO. IN LOS ANGELES, CALIF., FOR SHIPMENT TO EARP, CALIF., WAS BASED UPON THE ASSUMPTION THAT UNDER THE CITED DECISION OF THIS OFFICE, 16 COMP. GEN. 918, DELIVERY TO THE NATIONAL CARLOADING CO. DID NOT CONSTITUTE SHIPMENT WITHIN THE MEANING OF THE CONTRACT PROVISIONS FIXING THE CONTRACTOR'S LIABILITY FOR DELAY IN SHIPMENT. HENCE, SUCH ADMINISTRATIVE ACTION IS NOT, STRICTLY SPEAKING, A FINDING OF FACT AS TO THE EXTENT AND CAUSE OF DELAY WITHIN THE MEANING OF THE PROVISIONS OF THE CONTRACT RELATING TO THE FINALITY OF THE ADMINISTRATIVE DETERMINATIONS AS TO SUCH MATTERS.

THE CITED DECISION OF THIS OFFICE DID NOT HOLD THAT THE NATIONAL CARLOADING CO. WAS NOT A COMMON CARRIER. ON THE CONTRARY, IT WAS SAID IN THE DECISION THAT "UNDER CERTAIN CONDITIONS, A FORWARDING AGENT IS "AS TO A PERSON WITH WHOM HE CONTRACTS FOR THE DELIVERY OF THE GOODS, A COMMON CARRIER AND LIABLE AS SUCH," 10 CORPUS JURIS 50," BUT IT WAS POINTED OUT THAT IN THAT CASE THE FORWARDING AGENT, THE NATIONAL CARLOADING CO., WAS THE CONTRACTOR'S AGENT FOR WHOSE DELAYS THE CONTRACTOR WAS RESPONSIBLE, AND THAT MERE DELIVERY TO SUCH AGENT DID NOT CONSTITUTE SHIPMENT WHEN THERE WAS A DELAY ON THE PART OF THE AGENT IN BEGINNING THE ACTUAL TRANSPORTATION OF THE GOODS. AS THE FACTS IN THE PRESENT CASE ARE ESSENTIALLY DIFFERENT FROM THE FACTS IN THAT CASE THE DECISION IN THAT CASE IS NOT CONTROLLING HERE.

THE QUESTION HERE FOR DETERMINATION IS NOT SO MUCH WHETHER AND UNDER WHAT CIRCUMSTANCES A CARLOADING COMPANY MAY BE TERMED A COMMON CARRIER BUT AS TO WHAT CONSTITUTED SHIPMENT IN THIS CASE WITHIN THE MEANING OF THOSE TERMS AS USED IN THE CONTRACT. THE TERM "SHIPMENT" HAS BEEN DEFINED AS CONTEMPLATING COMPLETE DELIVERY OF GOODS BY THE SHIPPER TO THE CARRIER FOR TRANSPORTATION AND IT HAS BEEN HELD THAT "SHIPMENT" IS NOT MADE UNTIL THE SHIPPER HAS PARTED WITH ALL CONTROL OVER THE GOODS AND NOTHING REMAINS TO BE DONE BY HIM TO COMPLETE DELIVERY TO THE CARRIER. SEE NATIONAL IMPORTING AND TRADING CO. V. E. A. BEAR AND CO., N.E. 343, 346, 324 ILL. 346; ALSO, SEE CAMPBELL RIVER MILLS CO. V. CHICAGO, M., ST. P. AND P.R. CO., 42 F./2D) 775, 777; AND ARNOLD V. UNITED STATES, 115 F./2D) 523, 527.

IT IS UNDERSTOOD THAT FORWARDING AGENTS GENERALLY UTILIZE THE SERVICES OF COMMON CARRIERS, SUCH AS RAILROAD AND TRUCKING COMPANIES, WHICH ARE SUBJECT TO THE REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION, AND THAT ALL GOODS DELIVERED TO SUCH AGENTS ARE OF NECESSITY RELEASED TO SUCH CARRIERS FOR TRANSIT TO DESTINATION. EVEN THOUGH A CONSIGNMENT OF GOODS MAY BE SHIPPED BY A FORWARDING AGENT, AS WAS THE CASE IN THIS INSTANCE, SUCH SHIPMENT APPARENTLY PRESUPPOSES THAT THE GOODS WERE RELEASED TO A CARRIER, EITHER A RAILROAD OR TRUCKING COMPANY, BEFORE SHIPMENT FROM THE SPECIFIED SHIPPING POINT.

THEREFORE, IT FOLLOWS THAT, AS A GENERAL RULE IN THIS AND SIMILAR CASES, THE DATE OF SHIPMENT FOR THE PURPOSE OF FIXING LIABILITY FOR LIQUIDATED DAMAGES, IS THE DATE ON WHICH THE GOODS ARE ACTUALLY RELEASED TO THE RAILROAD OR TRUCKING COMPANY, EITHER BY THE CONTRACTOR OR THE FORWARDING AGENT, AT THE POINT SPECIFIED IN THE CONTRACT FOR SHIPMENT.

IN THE INSTANT CASE THE EVIDENCE OF RECORD BEFORE THIS OFFICE INDICATES THAT GOVERNMENT BILL OF LADING NO. I-801318, DATED SEPTEMBER 11, 1939, WITH AN ALL-RAIL ROUTING FROM ELKHART, IND., TO EARP, CALIF., WAS FURNISHED THE CONTRACTOR FOR USE IN MAKING SHIPMENT OF THE CABINETS. THE SAID BILL OF LADING WAS TRANSMITTED BY THE CONTRACTOR TO ITS SUPPLIER, THE HENRY WEISS MANUFACTURING COMPANY, AT ELKHART, IND., WITH AN ORDER FOR THE CABINETS, AND SHIPMENT THEREOF WAS MADE BY THE NATIONAL CARLOADING CORPORATION AS A PART OF A CARLOAD LOT MOVING TO LOS ANGELES WHERE THE CONTENTS OF THE CAR APPEAR TO HAVE BEEN DISTRIBUTED, THE CABINETS BEING DELIVERED TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY CO. ON OCTOBER 5, 1939, FOR SHIPMENT TO EARP, CALIF., WHERE THEY WERE RECEIVED ON OCTOBER 7, 1939.

WHILE NO PROOF HAS BEEN FURNISHED AS TO THE DATE ON WHICH THE CABINETS ACTUALLY WERE RELEASED BY THE NATIONAL CARLOADING CORPORATION TO THE CARRIER IN ELKHART, IND., THE EVIDENCE OF RECORD REASONABLY ESTABLISHES THAT THE SHIPMENT ACTUALLY MOVED FROM THE CONTRACTOR'S SHIPPING POINT, ELKHART, IND., WITHIN THE TIME SPECIFIED IN THE CONTRACT FOR SHIPMENT. ACCORDINGLY, THE CLAIM FOR REMISSION OF THE LIQUIDATED DAMAGES DEDUCTED FROM THE CONTRACT PRICE FOR THE CABINETS WILL BE ALLOWED IN DUE COURSE.