B-127139, SEP. 20, 1956

B-127139, SEP. 20, 1956

TO NYLOS TRADING CO., INC.:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 31, 1956, WITH ENCLOSURES, AND PREVIOUS CORRESPONDENCE, REFERRING TO OUR OFFICE LETTER DATED JULY 10, 1956, REGARDING THE DISALLOWANCE OF YOUR CLAIM FOR $5,017.67, AS ADDITIONAL COSTS ALLEGED TO BE DUE ON ACCOUNT OF THE FAILURE OF THE GOVERNMENT TO GIVE TIMELY NOTICE TO THE SHIPMASTERS OF THE S.S. FIRENZE AND THE S.S. NORLANDA WITH REGARD TO THE PORTS OF DISCHARGE OF THE VESSELS' CARGOES.

YOU ALLEGE THAT YOU DID NOT RECEIVE THE TELEGRAM OF SEPTEMBER 9, 1953, FROM THE RECEIVING AGENCY, KOREA CIVIL ASSISTANCE COMMAND, ADVISING YOU THAT INCHON WOULD BE THE PORT OF DISCHARGE FOR THE S.S. FIRENZE AND REQUESTING THAT YOU NOTIFY THE SHIPMASTER TO THAT EFFECT. A COPY OF THE TELEGRAM IS NOT OF RECORD HERE AND IT IS REPORTED THAT ALL COPIES OF MESSAGES WERE DESTROYED AFTER A PERIOD OF 10 MONTHS. HOWEVER, THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THE MESSAGE WAS SENT TO YOU. OUR OFFICE, HAVING NO FIRSTHAND KNOWLEDGE OF THE FACTS, MUST NECESSARILY RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE IN THIS RESPECT. IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF, IT IS THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS. THERE IS NOTHING IN THE PRESENT RECORD TO JUSTIFY THE APPLICATION OF A DIFFERENT RULE TO THIS CASE.

YOU ACKNOWLEDGE THAT YOU RECEIVED THE TELEGRAM OF OCTOBER 10, 1953, ADVISING YOU OF THE PORTS OF DISCHARGE FOR THE S.S. FIRENZE AND THE S.S. NORLANDA AND REQUESTING THAT YOU ADVISE THE SHIPMASTERS ACCORDINGLY. YOU CONTEND THAT YOU DID NOT NOTIFY THE SHIPMASTERS OF THE DISCHARGE PORTS DUE TO THE FACT THAT A SHIPMASTER OF A THIRD VESSEL CARRYING CARGO UNDER THE INSTANT CONTRACT, THE S.S. POLIFEMO, HAD PREVIOUSLY BEEN NOTIFIED DIRECT AS TO THE PORT OF DISCHARGE. IT APPEARS TO BE YOUR CONTENTION THAT SUCH PROCEDURE SET A PATTERN TO BE FOLLOWED ON ALL SHIPMENTS UNDER THE CONTRACT. THE CONTRACT IS SILENT AS TO THE PARTY TO BE ADVISED AS TO THE DISCHARGE PORT. HOWEVER, SINCE YOU WERE A PARTY TO THE CONTRACT AND THE SHIPMASTERS WERE NOT, AND SINCE YOU WERE ADVISED AS TO THE PORTS OF DISCHARGE AND WERE REQUESTED TO ADVISE THE SHIPMASTERS ACCORDINGLY, IT WOULD APPEAR THAT PRUDENT BUSINESS ADMINISTRATION WOULD REQUIRE SUCH A COURSE. AS YOU WERE ADVISED IN THE LETTER OF JULY 10, 1956, THE CLAIM IS OF SUCH DOUBTFUL VALIDITY IN FACT AND LAW AS TO WARRANT OUR OFFICE TO DENY PAYMENT. IN INSTANCES WHERE THE FACTS INVOLVED RAISE A QUESTION AS TO THE PROPRIETY OR VALIDITY OF A CLAIM "IT IS THE UNDOUBTED RIGHT AND DUTY" OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT A CLAIM IN WHOLE OR IN PART "AS THEIR JUDGMENT DICTATES"--- LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291--- LEAVING THE CLAIMANTS TO PROSECUTE THEIR CASES IN A COURT OF LAW.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN BY OUR OFFICE IN THE MATTER IS AFFIRMED.