B-129478, DEC. 3, 1956

B-129478, DEC. 3, 1956

TO SENECA WAREHOUSE AND INDUSTRIAL CENTER, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 12, 1956, AND ENCLOSURES, REQUESTING REVIEW OF THE DETERMINATION, AS SET FORTH IN A LETTER OF JULY 31, 1956, FROM THE CLAIMS DIVISION OF OUR OFFICE, OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $9,474.13, BECAUSE OF DAMAGE INFLICTED ON GOVERNMENT-OWNED RUBBER WHILE STORED IN YOUR WAREHOUSE UNDER CONTRACT NO. GS-OOP-192/SCM), DATED FEBRUARY 23, 1951. THE GENERAL SERVICES ADMINISTRATION HAS SINCE FORWARDED AN ADDITIONAL CLAIM, IN THE AMOUNT OF $2,528.16, REPRESENTING FURTHER LOSSES INCURRED BY THE GOVERNMENT BY REASON OF DAMAGE TO RUBBER STORED UNDER THE CONTRACT.

UNDER THE CONTRACT YOU AGREED TO STORE AND TO HANDLE INTO AND OUT OF CLOSED STORAGE THE RUBBER FOR THE PRICES STATED. PARAGRAPH 10 OF THE CONTRACT PROVIDED THAT THE CONTRACTOR WOULD BE "LIABLE FOR ANY LOSS OR INJURY OF ANY MATERIAL STORED OR SERVICED UNDER THIS CONTRACT WHICH IS CAUSED BY THE CONTRACTOR'S FAILURE TO EXERCISE SUCH CARE IN REGARD TO SAID MATERIAL AS A REASONABLE CAREFUL OWNER OF SIMILAR MATERIAL WOULD EXERCISE, BUT THE CONTRACTOR SHALL NOT BE LIABLE, IN THE ABSENCE OF A WRITTEN AGREEMENT TO THE CONTRARY, FOR ANY LOSS OR INJURY TO THE MATERIAL WHICH COULD NOT BE AVOIDED BY THE EXERCISE OF SUCH CARE.'

YOU CONTEND THAT YOU SHOULD NOT BE CHARGED WITH THE LOSS BECAUSE (1) PART OF THE DAMAGE WAS CAUSED IN JUNE 1953 DURING THE REPAIRING OF A CHIMNEY STACK EXTENDING THROUGH THE ENTIRE BUILDING, WHICH RESULTED IN FLY ASH AND CARBON SETTLING ON THE RUBBER; (2) FURTHER DAMAGE WAS CAUSED ON OCTOBER 15, 1954, BY "HURRICANE HAZEL; " AND (3) STILL FURTHER DAMAGE OCCURRED FROM WATER AFTER THIEVES HAD STOLEN THE COPPER FLASHING FROM THE ROOF PERIMETER.

IN CONNECTION WITH THE DAMAGES INVOLVED, THE ACTING CHIEF, INSPECTION DIVISION, GENERAL SERVICES ADMINISTRATION, REGION 2, NEW YORK, NEW YORK, STATED IN A REPORT, DATED JANUARY 3, 1955, IN PART, AS FOLLOWS:

"VERY SERIOUS AND EXTENSIVE WATER DAMAGE HAS RESULTED FROM A COMBINATION OF FACTORS; 1) HURRICANE HAZEL, 2) THE ABSENCE OF COPPER FLASHING FROM THE ROOF OF THE POWERHOUSE AND 3) POOR HOUSEKEEPING AND NEGLIGENCE ON THE PART OF THE WAREHOUSE TO PROTECT THE RUBBER FROM ADDED WATER DAMAGE.

"THE POWERHOUSE WAS INSPECTED ON DECEMBER 29TH AND 30TH AND WAS FOUND IN A PITIFUL STATE OF DISREPAIR. WATER WAS CASCADING OFF THE WALLS ON TO THE VARIOUS PILES OF RUBBER STORED ALONG THE NORTH, EAST AND WEST ENDS OF THE BUILDING.

"ALL FLOORS HAD LARGE PUDDLES EVERYWHERE MIXED WITH SOOT AND DIRT, MAKING WALKING VERY DANGEROUS.

"PRACTICALLY EVERY LOT STORED NEAR THESE WALLS PLUS ALL THE BALES ON THE FLOORS HAD A COMBINATION OF OLD AND NEW STAINS UNDER THE COATING OF DUST AND DIRT, THE NEW STAINS COMING FROM A RECENT WETTING. IN SOME LOTS THE PENETRATION INTO THE RSS BALES VARIED FROM 1/4 INCH TO 1 1/2 INCHES. THE BROWNS AND AMBERS SHOW VERY HEAVY STAINS AND DISCOLORATION.

"IT IS DIFFERENT TO DISTINGUISH BETWEEN THE DAMAGE THAT RESULTED FROM THE HURRICANE AND THE DAMAGE RESULTING FROM THE WATER ON THE FLOOR AND FROM THE LEAKS IN THE CEILING AND THE WATER COMING IN FROM THE WALLS. ALL THIS WETTING HAS BECOME MIXED WITH A LAYER OF SOOT, DIRT AND PLASTER AND WHATNOT COVERING THE BALES PLUS HIDING COUNTERMARKS AND IN MANY INSTANCES, ALL MEANS OF IDENTIFYING LOTS. MR. GEORGE LOVELAND, THE WAREHOUSE MANAGER, WAS PRESENT DURING THE INSPECTION OPERATION. HE INFORMED ME THAT A GREAT MANY OF THE WINDOWS IN THE WAREHOUSE HAD BEEN BLOWN OUT AND THAT PART OF THE CHIMNEY HAD BEEN BLOWN DOWN AND THROUGH THE ROOF. ALL THE WINDOWS HAD BEEN REPLACED AND THE HOLE IN THE ROOF REPAIRED, BUT THERE ARE NEW LEAKS ALL THE TIME. BY FAR, THE GREATEST AMOUNT OF DAMAGE HAS RESULTED FROM THE ABSENCE OF THE COPPER FLASHING FROM THE ROOF OF THE BUILDING WHICH ORDINARILY PREVENTS THE RAIN AND MELTED SNOW FROM SEEPING INTO THE BUILDING BETWEEN THE FLOORING AND THE INNER WALLS.

"MR. LOVELAND EXPLAINED THAT APPROXIMATELY ONE MONTH AGO, THE EXACT TIME IS NOT KNOW, THE ENTIRE FLASHING (APPROXIMATELY 3,500 LBS.) WAS STOLEN OFF THE ROOF. SINCE THE THEFT, THE ROOF OF THE BUILDING HAS BEEN WITHOUT PROPER DRAINAGE; AS A RESULT, EVERY TIME IT RAINS THE WATER COMES INTO THE BUILDING ON THE FIRST AND THIRD FLOORS AND BATHES THE RUBBER, CASCADING OVER PILES, WETTING THE FLOOR BALES AND WATER SEEPING THROUGH HOLES IN THE ROOF ADDING ADDITIONAL WATER.

"THE INSPECTION PERIOD LUCKILY OCCURRED DURING A RAINSTORM AND THERE WERE ALWAYS NEW AND ADDITIONAL LEAKS IN THE ROOF AND WALLS. PARTS OF THE WALLS WERE DISCOLORED FROM CONTINUALLY WASHING OF WATER INTO THE BUILDING. MORE THAN 30 LOTS OR PARTIAL LOTS WERE ACTUALLY LYING IN POOLS OF WATER ON THE CEMENT FLOOR, SOME AS DEEP AS 3 INCHES TO 4 INCHES.

"ONE LOT OF RSS ON THE THIRD FLOOR ACTUALLY HAD FOUR STREAMS OF WATER POURING DOWN OVER IT FROM HOLES IN THE ROOF. MR. LOVELAND EVIDENCED SURPRISE THAT THE REPAIR WORK ON THE COPPER FLASHING WAS ONLY HALF COMPLETED. HE EXPLAINED THAT THE SPELL OF INCLEMENT WEATHER COULD HAVE CAUSED THE DELAY. TWO ALCOVES ON THE FIRST FLOOR ACTUALLY ARE RESERVOIRS OF WATER, SINCE THE MOST OF THE WATER DRAINS INTO THIS AREA AND REMAINS THERE UNTIL IT EVAPORATES. APPROXIMATELY 250 TO 350 BALES WERE FOUND IN THESE ALCOVES.

"MANY LOTS OF RUBBER WERE STORED DIRECTLY ON THE CEMENT FLOORING WITHOUT DUNNAGE AND ALL SHOWED EVIDENCE OF CONSTANT HEAVY WETTING. WATER LEVEL MARKS UP TO 8 INCHES ON THE SIDES OF SOME BALES. AT THE TIME OF THE INSPECTIONS THERE WAS NO ATTEMPT BEING MADE BY THE WAREHOUSE PEOPLE TO PROTECT THE RUBBER FROM FURTHER WETTING. NO TARPAULINS WERE USED AND NO EFFORT BEING MADE TO MOVE LOTS OUT OF THE ALCOVES OR AWAY FROM WALLS, NOR WAS ANY EFFORT BEING MADE TO DRY UP POOLS OF WATER ON THE CEMENT FLOORS OR MOVE LOTS FROM HEAVILY DAMAGED AREAS.'

THE CONTRACT PROVIDED THAT IN THE ABSENCE OF A WRITTEN AGREEMENT TO THE CONTRARY, ALL RUBBER MUST BE STORED ON PALLETS, OR DUNNAGE OF SUCH CHARACTER TO SERVE AS PALLETS, RAISING THE RUBBER APPROXIMATELY SIX INCHES FROM THE FLOOR. THE REPORT STATES THAT MANY LOTS OF RUBBER WERE STORED DIRECTLY ON THE CEMENT FLOORING WITHOUT DUNNAGE AND ALL SHOWED EVIDENCE OF CONSTANT HEAVY WETTING. IT IS APPARENT FROM THE REPORT OF INSPECTION THAT YOU FAILED TO EXERCISE SUCH CARE IN REGARD TO THE MATERIAL AS A REASONABLE CAREFUL OWNER OF SIMILAR MATERIALS WOULD EXERCISE. CONSEQUENTLY, IN ACCORDANCE WITH THE CONTRACT TERMS, YOU ARE LIABLE FOR THE LOSS INVOLVED.

WHILE SOME OF THE LOSS MAY BE ATTRIBUTED TO "HURRICANE HAZEL," IT IS REPORTED THAT BY FAR THE GREATEST AMOUNT OF DAMAGE RESULTED FROM THE ABSENCE OF THE COPPER FLASHING FROM THE ROOF OF THE BUILDING. IT IS APPARENT THAT YOU COULD HAVE PREVENTED MUCH OF THE DAMAGE CAUSED BY THE HURRICANE, AND MOST, IF NOT ALL, OF THAT WHICH OCCURRED BEFORE AND AFTER THAT EVENT, HAD YOU USED REASONABLE CARE IN PROTECTING THE RUBBER FROM THE DAMAGE WHICH IT APPEARS COULD CLEARLY HAVE BEEN ANTICIPATED FROM THE CONDITIONS CREATED.

IN THE ABSENCE OF ANY CLEAR SHOWING AS TO WHAT PART OF THE DAMAGE MIGHT BE CONSIDERED AS UNAVOIDABLE, WE HAVE NO ALTERNATIVE BUT TO CHARGE YOU WITH THE TOTAL DAMAGE SUSTAINED.

UNLESS PROMPT ARRANGEMENTS ARE MADE WITH OUR OFFICE FOR THE SATISFACTION OF THE FULL AMOUNT OF YOUR INDEBTEDNESS, THE MATTER NECESSARILY WILL BE REFERRED TO THE ATTORNEY GENERAL FOR SUCH FURTHER COLLECTION ACTION AS MAY BE REQUIRED.