JUNE 10, 1924, 3 COMP. GEN. 948

JUNE 10, 1924, 3 COMP. GEN. 948

BAILMENTS - LIABILITY OF CONTRACTOR FOR GOVERNMENT PROPERTY STORED BY HIM AFTER OVERHAULING IT UNDER AN AGREEMENT PROVIDING FOR THE OVERHAULING OF GOVERNMENT PROPERTY A STIPULATION REQUIRING THE CONTRACTOR, WITHOUT ANY ADDITIONAL CONSIDERATION, TO CARE FOR AND STORE SAID PROPERTY FOR A CERTAIN PERIOD AFTER ITS OVERHAULING DOES NOT RENDER THE CONTRACTOR AN INSURER OF THE PROPERTY, BUT ONLY CREATES A BAILMENT FOR THE SOLE BENEFIT OF THE GOVERNMENT REQUIRING THE CONTRACTOR TO EXERCISE ONLY THE LOWEST DEGREE OF CARE, AND SUCH STIPULATION DOES NOT RENDER THE CONTRACTOR LIABLE FOR ANY DAMAGE TO SAID PROPERTY RESULTING FROM A FIRE WHICH DESTROYED THE CONTRACTOR'S PLACE OF BUSINESS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, JUNE 10, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 5, 1924, REQUESTING DECISION AS TO WHETHER THE WARDEN-COUCH CO., OF SEATTLE, WASH., IS ENTITLED TO BE PAID THE FULL COMPENSATION OF $165 AS PROVIDED IN AGREEMENTS OF DECEMBER 8, 1923, AND MARCH 8, 1924, OR WHETHER UNDER THE CIRCUMSTANCES PAYMENT OF ONLY $24 SHOULD BE MADE FOR 6 STORAGE BATTERIES DELIVERED ON THE FIRST AGREEMENT AND $85 FOR 14 BATTERIES DELIVERED ON THE SECOND AGREEMENT, OR WHETHER THE CONTRACTOR SHOULD BE REQUIRED TO REPAIR THE 20 BATTERIES AT THE ORIGINAL CONTRACT PRICE OF $80.

THE QUESTION PRESENTED ARISES IN CONNECTION WITH A PROPOSAL AND ACCEPTANCE AGREEMENT OF DECEMBER 8, 1923, IN WHICH THE WARDEN-COUCH CO. AGREED TO OVERHAUL ONE LOT CONSISTING OF 20 STORAGE BATTERIES OF THE WILLARD TYPE, TO BE DELIVERED BY THE LIGHTHOUSE SERVICE TO THE CONTRACTOR ON THE DOCK AT THE PACIFIC COAST COAL CO.'S BUNKERS, SEATTLE, WASH., FOR A TOTAL COMPENSATION OF $80, THE CONTRACTOR BEING REQUIRED TO "CARE FOR AND STORE THE BATTERIES FOR A PERIOD OF NOT EXCEEDING 90 DAYS.'

THE NECESSITY FOR THE INSERTION OF A STORAGE PROVISION IN THE AGREEMENT APPEARS TO HAVE BEEN DUE TO THE FACT THAT THE BATTERIES BELONGED TO THE SWIFSURE BANK LIGHT VESSEL NO. 93, OF THE LIGHTHOUSE SERVICE, WHICH WAS APPARENTLY AT SEA AT THE TIME, AND DELIVERY OF THE OVERHAULED BATTERIES TO THAT VESSEL COULD NOT THEREFORE BE MADE UNTIL IT RETURNED TO PORT. AFTER THE BATTERIES HAD BEEN REPAIRED AND BEFORE THE EXPIRATION OF THE 90 DAYS, DURING WHICH TIME THE CONTRACTOR WAS REQUIRED TO STORE THE BATTERIES, THE CONTRACTOR'S PLACE OF BUSINESS, WHERE THE BATTERIES WERE STORED, WAS SERIOUSLY DAMAGED BY A FIRE WHICH WAS FOUND TO BE WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE CONTRACTOR, AND 14 OF THE 20 BATTERIES WERE CONSIDERABLY DAMAGED, NECESSITATING FURTHER REPAIRS BEFORE THEY COULD BE USED. NEW PROPOSALS FOR REPAIRS TO THE 14 BATTERIES WERE CALLED FOR AND THE BID OF THE WARDEN-COUCH CO., IN WHICH THE ADDITIONAL REPAIRS WERE AGREED TO BE MADE FOR THE SUM OF $85, WAS ACCEPTED BY THE SUPERINTENDENT OF LIGHTHOUSES, PORTLAND, OREG., MARCH 8, 1924. THE NECESSARY REPAIRS TO THE 14 BATTERIES HAVE BEEN ACCOMPLISHED UNDER THE LAST-MENTIONED AGREEMENT, AND THE QUESTION FOR DECISION IS HOW MUCH THE CONTRACTOR IS ENTITLED TO BE PAID FOR ITS SERVICES.

UPON COMPLETION OF THE OVERHAULING OF THE BATTERIES, HAD DELIVERY BEEN REQUIRED AS SOON AS COMPLETED AND HAD NO PROVISION BEEN INSERTED REQUIRING THE CONTRACTOR TO STORE THE SAME, THE CONTRACTOR WOULD HAVE BEEN ENTITLED TO RECEIVE THE FULL AMOUNT OF $80 AGREED UPON IN THE AGREEMENT OF DECEMBER 8, 1923. THE EFFECT OF THE REQUIREMENT TO CARE FOR AND STORE THE BATTERIES WAS TO CREATE A BAILMENT FOR THE SOLE BENEFIT OF THE BAILOR, AND IT HAS BEEN HELD THAT A BAILEE IN THE ABSENCE OF A SPECIAL CONTRACT IS NOT AN INSURER OF THE THING BAILED AND IS NOT RESPONSIBLE IN DAMAGES FOR LOSSES ARISING FROM INEVITABLE ACCIDENT OR UNDER CIRCUMSTANCES WHICH MIGHT NOT REASONABLY HAVE BEEN FORESEEN, BUT THAT HE MAY ENLARGE HIS LEGAL RESPONSIBILITY BY CONTRACT, EXPRESS OR FAIRLY IMPLIED, SO AS TO RENDER HIMSELF LIABLE UNDER ALL CIRCUMSTANCES FOR THE LOSS OR DAMAGE OF THE THING COMMITTED TO HIS CARE. SEE 27 COMP. DEC., 299, AND DECISIONS CITED THEREIN.

UNDER THE LAW GOVERNING BAILMENTS IN CASES WHERE THE THING BAILED IS FOR THE SOLE BENEFIT OF THE BAILOR THE BAILEE IS ONLY REQUIRED TO EXERCISE THE LOWEST DEGREE OF CARE IN PROTECTING THE PROPERTY BAILED. IN THE INSTANT CASE THE AGREEMENT REQUIRED THE CONTRACTOR TO STORE THE BATTERIES, BUT THIS STORAGE WAS TO BE ACCOMPLISHED WITHOUT ANY ADDITIONAL CONSIDERATION THEREFOR PASSING TO THE CONTRACTOR, THE CONSIDERATION OF THE AGREEMENT BEING FOR OVERHAULING THE BATTERIES ONLY. THE CONTRACTOR DID NOT BECOME THE INSURER OF THE BATTERIES AFTER BEING OVERHAULED, AND I HAVE TO ADVISE YOU IN REPLY TO YOUR REQUEST THAT PAYMENT OF THE AGREED PRICE FOR OVERHAULING THE 20 BATTERIES AND ALSO THE PRICE FOR REPAIRING THE 14 BATTERIES SUBSEQUENTLY DAMAGED BY FIRE IS AUTHORIZED TO BE MADE TO THE CONTRACTOR.