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B-129190, OCT. 18, 1956

B-129190 Oct 18, 1956
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CRYER: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27. WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $893.07 REPRESENTING FREIGHT COSTS INCURRED ON A SHIPMENT OF LUMBER WHICH WAS REFUSED AND REJECTED BY THE GOVERNMENT AFTER TERMINATION OF CONTRACT NO. THE DELIVERY OF WHICH WAS TO BE MADE. SINCE NO DELIVERIES WERE MADE BY THE DATE SPECIFIED THE CONTRACTING OFFICER ON NOVEMBER 19. TERMINATED THE CONTRACT AS TO ALL SHIPMENTS WHICH WERE NOT DELIVERED TO THE CARRIER ON OR BEFORE NOVEMBER 26. THE CORPS OF ENGINEERS NOTIFIED YOU THAT CAR WP-2617 WAS REFUSED AND RETURNED TO THE CARRIER BY THE DEPOT AND SUGGESTED YOU FORWARD DISPOSITION INSTRUCTIONS DIRECTLY TO THE CARRIER. DUE TO TRANSMISSION DIFFICULTIES THE TELEGRAM APPARENTLY WAS NOT DELIVERED TO YOU UNTIL FEBRUARY 11.

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B-129190, OCT. 18, 1956

TO MR. CHARLES G. CRYER:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27, 1956, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 10, 1956, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $893.07 REPRESENTING FREIGHT COSTS INCURRED ON A SHIPMENT OF LUMBER WHICH WAS REFUSED AND REJECTED BY THE GOVERNMENT AFTER TERMINATION OF CONTRACT NO. DA-09-026-ENG-29532 WITH THE DEPARTMENT OF THE ARMY.

THE RECORD SHOWS THAT ON SEPTEMBER 12, 1951, THE CORPS OF ENGINEERS, SOUTH ATLANTIC DIVISION, ATLANTA, GEORGIA, ISSUED A PURCHASE ORDER FOR APPROXIMATELY 95,572 FBM (3 CARLOADS) OF NO. 2 WHITE FIR BOARDS AND SHEATHING OR NO. 3 WHITE FIR COMMON LUMBER, THE DELIVERY OF WHICH WAS TO BE MADE, F.O.B. THE NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY, BY NOVEMBER 1, 1951.

SINCE NO DELIVERIES WERE MADE BY THE DATE SPECIFIED THE CONTRACTING OFFICER ON NOVEMBER 19, 1951, TERMINATED THE CONTRACT AS TO ALL SHIPMENTS WHICH WERE NOT DELIVERED TO THE CARRIER ON OR BEFORE NOVEMBER 26, 1951. WHEN THE THIRD CAR OF LUMBER (CAR WP-2617) REACHED BAYONNE, NEW JERSEY, ON JANUARY 21, 1952, THE GOVERNMENT DISCOVERED THAT THIS CARLOAD OF LUMBER HAD NOT BEEN DELIVERED TO THE CARRIER BY YOUR SUPPLIER IN WESTWOOD, CALIFORNIA, UNTIL DECEMBER 21, 1951. UPON RECEIPT OF THIS INFORMATION BY THE CONTRACTING OFFICER HE NOTIFIED THE NAVAL SUPPLY DEPOT TO REJECT THE CARLOAD OF LUMBER AND TO RETURN IT TO THE CARRIER.

THE RECORD FURTHER SHOWS THAT ON JANUARY 23, 1952, THE CORPS OF ENGINEERS NOTIFIED YOU THAT CAR WP-2617 WAS REFUSED AND RETURNED TO THE CARRIER BY THE DEPOT AND SUGGESTED YOU FORWARD DISPOSITION INSTRUCTIONS DIRECTLY TO THE CARRIER. HOWEVER, DUE TO TRANSMISSION DIFFICULTIES THE TELEGRAM APPARENTLY WAS NOT DELIVERED TO YOU UNTIL FEBRUARY 11, 1952. IT APPEARS THAT IN THE MEANTIME, APPARENTLY WITHOUT FIRST OBTAINING INSTRUCTIONS FROM YOU, THE CARRIER ON JANUARY 24, 1952, CONSIGNED THE CAR BACK TO THE POINT OF ORIGIN. YOU CONTEND THAT BY THE TIME YOU WERE ABLE TO INTERCEPT THE CAR IT HAD REACHED KANSAS CITY, MISSOURI, AT WHICH TIME YOU RECONSIGNED THE SHIPMENT TO ANOTHER GOVERNMENT DEPOT TO APPLY AGAINST ANOTHER CONTRACT WITH THE DEPARTMENT OF THE ARMY.

THE RECORD FURTHER SHOWS THAT YOU SUBMITTED YOUR INVOICE NO. 1962 DATED FEBRUARY 29, 1952, IN THE AMOUNT OF $893.07 COVERING FREIGHT CHARGES, INCLUDING DEMURRAGE, INCURRED FROM BAYONNE, NEW JERSEY, TO KANSAS CITY, MISSOURI, AND THEN TO AVON, KENTUCKY, AND THAT BY LETTER DATED MARCH 18, 1952, THE INVOICE WAS RETURNED AND THE CLAIM WAS DENIED. YOU WERE INFORMED THAT THIS ACTION WAS THE DECISION OF THE CONTRACTING OFFICER PURSUANT TO CONDITION 12 OF THE GENERAL PROVISIONS OF THE CONTRACT FROM WHICH YOU COULD APPEAL. YOUR APPEAL FILED ON MAY 4, 1955, WITH THE ARMED SERVICES BOARD OF CONTRACT APPEALS PURSUANT TO THE "DISPUTES" CLAUSE OF THE CONTRACT WAS DISMISSED. THEREAFTER ON MARCH 30, 1956, YOU FILED YOUR CLAIM WITH OUR OFFICE, AND IT WAS DISALLOWED IN THE SETTLEMENT OF AUGUST 10, 1956.

YOU CONTEND, IN EFFECT, THAT THE CONTRACTING OFFICER WAS BOUND TO GIVE YOU TIMELY NOTICE OF REJECTION OF THE CAR AND THAT IN VIEW OF THE CONTRACTING OFFICER'S REPRESENTATIVE GIVING INSTRUCTIONS TO THE DELIVERING CARRIER TO RETURN THE CAR TO THE POINT OF ORIGIN WITHOUT PROPER INSTRUCTIONS FROM YOU, THE GOVERNMENT IS LIABLE FOR THE EXCESS FREIGHT CHARGES INCURRED NOTWITHSTANDING THE CONTRACT HAD BEEN TERMINATED PRIOR TO THE DATE SHIPMENT WAS MADE.

THE ADMINISTRATIVE AGENCY HAS REPORTED THAT THE AGENTS OF THE GOVERNMENT DID NOT CAUSE CAR WP-2617 TO BE RECONSIGNED WHEN IT ARRIVED AT BAYONNE, NEW JERSEY, BUT MERELY REFUSED TO ACCEPT THE CAR. ALSO, IT REPORTED THAT THE REJECTION WAS PROPER SINCE THE CAR WAS SHIPPED AFTER THE EFFECTIVE DATE OF TERMINATION AND THAT THERE WAS NO CONTRACT BETWEEN YOU AND THE GOVERNMENT IN FORCE AT THE TIME. FURTHERMORE, IT IS REPORTED THAT THE CAR WAS RETURNED BY THE DEPOT TO THE DELIVERING CARRIER TO AWAIT DISPOSITION INSTRUCTIONS FROM THE SHIPPER. THUS, WHEN THE DEPOT REFUSED TO ACCEPT THE SHIPMENT, THE RESPONSIBILITY OF THE SHIPMENT SO FAR AS THE GOVERNMENT WAS CONCERNED ENDED AND THEN RESTED UPON THE CARRIER AS THE AGENT OF THE SHIPPER. THE CONTRACTING OFFICER DEFINITELY REPORTS THAT AGENTS OF THE GOVERNMENT DID NOT CAUSE CAR WP-2617 TO BE RECONSIGNED TO THE SUPPLIER AND THAT THE CAR WAS RETURNED BY THE CONSIGNEE TO THE DELIVERING CARRIER TO AWAIT DISPOSITION INSTRUCTIONS FROM THE SHIPPER. INSOFAR AS CONCERNS YOUR CONTENTION THAT GOVERNMENT EMPLOYEES FURNISHED SUCH DISPOSITION INSTRUCTIONS TO THE CARRIER, OUR OFFICE MUST ACCEPT THE REPORT OF THE CONTRACTING OFFICER IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO SHOW THAT HIS REPORT IS ERRONEOUS.

THE RECORD ALSO SHOWS THAT YOU WERE AWARE OF THE NONACCEPTANCE OF THE CAR OF LUMBER ON JANUARY 31, 1952, AS EVIDENCED BY AIRMAIL LETTER DATED FEBRUARY 4, 1952, FROM YOU TO YOUR SUPPLIER WHICH REFERS TO A TELEPHONE CONVERSATION BETWEEN YOU AND MR. GRAHLMAN ON JANUARY 31, 1952, AND BY TELEGRAM FROM YOU TO THE AGENCY ON FEBRUARY 1, 1952, WHEREIN YOU ASKED "WHO AUTHORIZED CAR WP-2617 SHIPPED CONTRACT 29532 RETURNED TO SHIPPER.' THE RECORD INDICATES THAT YOU FAILED TO TAKE ANY ACTION TO DIVERT OR STOP THE CAR UNTIL FEBRUARY 7, 1952, OR UNTIL THE CAR REACHED KANSAS CITY, MISSOURI, SEVEN DAYS AFTER YOU WERE NOTIFIED THE CAR HAD NOT BEEN ACCEPTED BY THE DEPOT AT BAYONNE, NEW JERSEY.

INASMUCH AS IT APPEARS THAT THE SUBJECT SHIPMENT WAS MADE BY YOU ON DECEMBER 21, 1951, AFTER THE EFFECTIVE DATE OF TERMINATION, NAMELY NOVEMBER 26, 1951, WITH FULL KNOWLEDGE BEFOREHAND THAT THE SHIPMENT WOULD NOT BE ACCEPTED BY THE DEPOT UPON ARRIVAL, SUCH ACTION ON YOUR PART WAS AT YOUR PERIL AND ANY RESULTING FREIGHT CHARGES ACCRUING FROM THE NONACCEPTANCE OF CAR WP-2617 UPON ARRIVAL AT BAYONNE, NEW JERSEY, ARE YOUR RESPONSIBILITY AND NOT THAT OF THE GOVERNMENT.

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