B-134383, JAN. 14, 1958

B-134383: Jan 14, 1958

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TO SECRETARY OF STATE: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 13. IT APPEARS THAT AT THE TIME OF SHIPMENT THE CONTRACTOR WAS REQUIRED TO SUBMIT TO THE AMERICAN EMBASSY AT ROME ALL THE CERTIFICATES OF INSURANCE AND BILLS OF LADING COVERING THE SHIPMENTS INVOLVED. PAYMENT FOR THE MATERIAL WAS MADE THEREON TO THE CONTRACTOR'S AGENT IN ROME. AFTER SUCH CORRESPONDENCE AND LAPSE OF TIME IT WAS APPARENT THAT NO PROGRESS WAS BEING MADE IN HAVANA TOWARD SETTLEMENT FOR THE DAMAGES. THE SELLER WAS FIRST NOTIFIED OF THE DAMAGE AND WAS REQUESTED TO MAKE SETTLEMENT. ALSO FOR THE REASON THAT HE WAS NOT NOTIFIED WITHIN A REASONABLE TIME AFTER DELIVERY OF THE MATERIAL THAT IT HAD BEEN DAMAGED. OUR OFFICE IS OF THE OPINION THAT THERE IS NO LIABILITY UPON THE CONTRACTOR.

B-134383, JAN. 14, 1958

TO SECRETARY OF STATE:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 13, 1957, FROM THE CHIEF, DIVISION OF ACCOUNTS, OFFICE OF FINANCE, DEPARTMENT OF STATE, REPORTING AS UNCOLLECTIBLE A CLAIM IN THE AMOUNT OF $13,064.35 REPRESENTING THE VALUE OF TRAVERTINE PURCHASED FROM COLONNA AND COMPANY, INC. UNDER CONTRACT NO. SCC-2288, DATED AUGUST 16, 1950, AND BROKEN IN SHIPMENT.

UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR AGREED TO DELIVER CERTAIN TRAVERTINE C.I.F. HAVANA, CUBA, CONSIGNED TO THE AMERICAN AMBASSADOR, AMERICAN EMBASSY, HAVANA, CUBA, AND TO PAY TRANSPORTATION CHARGES AND TO BE RESPONSIBLE FOR ANY BREAKAGE OR DAMAGE. IT APPEARS THAT AT THE TIME OF SHIPMENT THE CONTRACTOR WAS REQUIRED TO SUBMIT TO THE AMERICAN EMBASSY AT ROME ALL THE CERTIFICATES OF INSURANCE AND BILLS OF LADING COVERING THE SHIPMENTS INVOLVED, AND PAYMENT FOR THE MATERIAL WAS MADE THEREON TO THE CONTRACTOR'S AGENT IN ROME.

THE RECORD SHOWS THAT THE FIRST SHIPMENT OF TRAVERTINE ARRIVED IN HAVANA ON NOVEMBER 9, 1950, WITH 43 OF 151 PIECES BROKEN. THE LAST OF THE FOUR SHIPMENTS ARRIVED AT HAVANA ON MARCH 15, 1951, WITH CONSIDERABLE DAMAGE TO ALL SHIPMENTS OF TRAVERTINE. IT APPEARS THAT EMPLOYEES OF THE EMBASSY IN HAVANA MADE CLAIM FOR THE DAMAGE DIRECT TO THE INSURER'S AGENTS IN HAVANA. AFTER SUCH CORRESPONDENCE AND LAPSE OF TIME IT WAS APPARENT THAT NO PROGRESS WAS BEING MADE IN HAVANA TOWARD SETTLEMENT FOR THE DAMAGES. BY LETTER OF SEPTEMBER 22, 1953, OR MORE THAN TWO AND ONE-HALF YEARS AFTER THE LAST SHIPMENT OF TRAVERTINE ARRIVED AT THE DESTINATION, THE SELLER WAS FIRST NOTIFIED OF THE DAMAGE AND WAS REQUESTED TO MAKE SETTLEMENT. LETTER OF DECEMBER 29, 1953, TO THE DEPARTMENT OF STATE THE CONTRACTOR DENIED LIABILITY ON THE GROUND THAT DELIVERY HAD BEEN ACCEPTED AND TITLE HAD PASSED IN ITALY, AND ALSO FOR THE REASON THAT HE WAS NOT NOTIFIED WITHIN A REASONABLE TIME AFTER DELIVERY OF THE MATERIAL THAT IT HAD BEEN DAMAGED, THUS DEPRIVING HIM OF AN OPPORTUNITY OF INSPECTING THE DAMAGE.

IT APPEARS THAT BY DEMANDING AND RECEIVING ALL DOCUMENTS, INCLUDING INSURANCE CERTIFICATES, AND PAYING THE CONTRACTOR IN FULL, THE EMBASSY IN ROME EFFECTIVELY DISCHARGED THE CONTRACTOR, AND FULL TITLE TO THE GOODS PASSED TO THE UNITED STATES. ACCORDINGLY AND IN VIEW OF THE DELAY IN DEMANDING DAMAGES FROM THE CONTRACTOR FOR THE BROKEN TRAVERTINE, OUR OFFICE IS OF THE OPINION THAT THERE IS NO LIABILITY UPON THE CONTRACTOR, AND THE CHARGE PREVIOUSLY STATED IS BEING CANCELLED.

HOWEVER, WE FEEL THAT THE CLAIM SHOULD BE PURSUED AGAINST THE INSURANCE COMPANY, AND SUGGEST THAT THE EMBASSY IN ROME ATTEMPT TO HANDLE THE MATTER DIRECTLY WITH THE INSURANCE COMPANIES IN ITALY, FOR WHICH PURPOSE THE FILE IS RETURNED HEREWITH. ATTENTION IS INVITED TO THE FACT THAT THE FOREIGN BUILDINGS OPERATIONS APPEAR NOT TO RECOGNIZE THE RIGHT OF THE INSURANCE COMPANY TO CREDIT FOR THE SALVAGE VALUE OF THE DAMAGED STONE, AND WE SUGGEST THAT FURTHER CONSIDERATION BE GIVEN TO THE ANALYSIS OF THE INSURANCE ADJUSTER, AND TO THE QUESTION OF THE QUANTITY OF THE BROKEN STONE USED IN THE BUILDING OPERATIONS. IN THIS CONNECTION, SEE THE ADJUSTER'S LETTER OF JANUARY 17, 1955, TO MR. ROBERT J. MCARDLE.

IF SATISFACTORY SETTLEMENT CANNOT BE MADE WITH THE INSURANCE CARRIERS, THE CLAIM SHOULD BE REPORTED BACK TO OUR CLAIMS DIVISION.

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