B-143340, AUG. 12, 1960

B-143340, AUG. 12, 1960

TO MR. D. C. LYNCH, AUTHORIZED CERTIFYING OFFICER, GENERAL SERVICES

ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1960, FILE REFERENCE CAOC, ENCLOSING SEVEN UNPAID INVOICES SUBMITTED BY THE BOARD OF HARBOR COMMISSIONERS, WILMINGTON, DELAWARE, IN THE AMOUNT OF $7,113.01 FOR WHARF USAGE CHARGES ASSESSED AGAINST FLUORSPAR IMPORTED UNDER CONTRACT BSD-SM-59 -19.

YOU STATE THAT THERE EXISTS WITHIN THE GENERAL SERVICES ADMINISTRATION SOME DOUBT AS TO THE PROPRIETY OF YOUR PAYING THESE CHARGES; THAT IT HAS BEEN SUGGESTED THAT THE CONTRACTOR EMPLOYED FOR THE UNLOADING AND STORING OF THE FLUORSPAR UNDER CONTRACT GS-00P 22606/CCC) SHOULD BE BILLED FOR THE ASSESSMENT. HOWEVER, YOU ADVISE THAT THE UNLOADING AND STORAGE CONTRACT MADE NO PROVISION FOR THE WHARF USAGE CHARGE BECAUSE AT THE TIME THE CONTRACT WAS EXECUTED THE EXISTENCE OF THE CHARGES WAS NOT KNOWN. ON THE OTHER HAND, THE SUPPLIER, ASSOCIATED METALS AND MINERALS CORPORATION, DENIES ANY LIABILITY FOR THE CHARGES ON THE BASIS THAT ITS CONTRACT PROVIDES FOR THE DELIVERY OF THE MATERIAL F.O.B. INLAND CARRIER'S CONVEYANCE. THEREFORE, DUE TO THE VARYING OPINIONS AS TO THE LIABILITY FOR THE CHARGES, YOU REQUEST OUR ADVICE AS TO WHETHER THE INVOICES MAY BE CERTIFIED FOR PAYMENT.

THE CHARGES IN QUESTION ARE LEVIED FOR USE OF THE TERMINAL'S FACILITIES, AND ARE DEFINED IN WILMINGTON MARINE TERMINAL TARIFF NO. 13, ISSUED FEBRUARY 10, 1959, AND SUPPLEMENTED EFFECTIVE MAY 1, 1960, AS FOLLOWS:

"A CHARGE ASSESSED BY THE BOARD COVERING THE USE OF ITS FACILITIES BY MOTOR VEHICLE.'

THE TARIFF FURTHER PROVIDES THAT:

"A RATE OF 12 CENTS PER NET TON WILL APPLY ON ALL SHIPMENTS HANDLED DIRECTLY BETWEEN A VESSEL AND MOTOR VEHICLE ON WHICH THE BOARD DOES NOT RECEIVE A HANDLING CHARGE AND CHARGES ARE ASSESSED AGAINST THE CARGO. MINIMUM CHARGE $5.00.'

IT IS UNDERSTOOD THAT AS A COMMON PRACTICE "CHARGES AGAINST THE CARGO" ARE ASSESSABLE AGAINST THE OWNER OF THE CARGO AT THE TIME SUCH CHARGES SHALL HAVE ACCRUED. THUS, UNDER THE TERMS OF ITS TARIFF, THE TERMINAL COMPANY IS EMPOWERED TO PROHIBIT THE REMOVAL OF SUCH PROPERTY UNTIL SUCH CHARGES ARE PAID; AND IN THE EVENT OF REMOVAL PRIOR TO PAYMENT, COLLECTION PROCEEDINGS FOR SUCH CHARGES WOULD BE AGAINST THE OWNER OF THE CARGO, AND NOT THE CARRIERS INVOLVED. HENCE, IT WOULD APPEAR MATERIAL IN CONSIDERING THE LIABILITY OF THE SUPPLY CONTRACTOR FIRST TO RESOLVE THE QUESTION OF OWNERSHIP OF THE CARGO AT THE TIME THE WHARFAGE USAGE CHARGE ATTACHED.

SECTION 2.G. OF THE SUPPLY CONTRACT WITH THE ASSOCIATED METALS AND MINERALS CORPORATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"DELIVERY OF THE ENTIRE QUANTITY OF MATERIAL SHALL BE MADE F.O.B. INLAND CARRIER'S CONVEYANCE, TYPE AND KIND AT CCC'S OPTION, WILMINGTON, DELAWARE; * * * PROVIDED FURTHER, THAT WHERE MOTOR TRUCKS OR OTHER CONVEYANCE ARE USED AND THE SUPPLY AND PLACEMENT OF SUCH CARRIER'S CONVEYANCE/S) ARE CONTROLLED THROUGH A CONTRACTUAL ARRANGEMENT WITH SUCH CARRIER, BY CCC OR ITS DESIGNEE, IT SHALL BE CCC'S RESPONSIBILITY TO HAVE SUCH CONVEYANCE SUPPLIED, AND PLACED, IN SUFFICIENT QUANTITIES TO ACCOMMODATE A NORMAL RATE OF DISCHARGE OF VESSEL/S).'

SECTION 2.H. OF THE ABOVE CONTRACT FURTHER PROVIDES THAT "TITLE AND RISK OF LOSS AND DAMAGE SHALL PASS TO CCC CONCURRENTLY WITH DELIVERY.'

IN THE LIGHT OF THESE PROVISIONS, IT IS CLEAR THAT PERFORMANCE BY THE SUPPLY CONTRACTOR WAS COMPLETED UPON DELIVERY OF THE FLUORSPAR TO THE MOTOR TRUCKS. THEREFORE, THE WHARFAGE USAGE CHARGES MAY NOT LEGALLY OR PROPERLY BE ASSESSED AGAINST THE SUPPLIER. IT ALSO IS CLEAR THAT AT THIS POSTURE, TITLE TO THE MATERIALS VESTED IN THE UNITED STATES, AND HAD SUCH SUPPLIES BEEN DELIVERED AGENCY-OWNED MOTOR VEHICLES, THE WHARFAGE USAGE CHARGES INCIDENT THERETO WOULD BE FOR THE ACCOUNT OF THE GOVERNMENT.

WHILE SUCH CONVEYANCES WERE NOT GOVERNMENT-OWNED, THEY WERE PROVIDED AND CONTROLLED BY THE GENERAL SERVICES ADMINISTRATION, AS DESIGNEE BY THE COMMODITY CREDIT CORPORATION, UNDER CONTRACT DATED MARCH 12, 1959, WITH THE E. F. CONSTRUCTION COMPANY. THE DUTIES AND RESPONSIBILITIES OF THE LATTER CONTRACTOR ARE WELL DEFINED IN PARAGRAPH 2 OF THE SPECIAL TERMS AND CONDITIONS OF ITS CONTRACT WHICH PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"IN ACCORDANCE WITH THE TERMS OF THIS CONTRACT, WHEN REQUESTED BY GENERAL SERVICES ADMINISTRATION, THE CONTRACTOR SHALL FURNISH ALL LABOR, SUPERVISION, SUPPLIES AND EQUIPMENT (INCLUDING FUEL FOR EQUIPMENT) AND SHALL PROVIDE ALL SERVICES AT THE WILMINGTON MARINE TERMINAL, WILMINGTON, DELAWARE, FOR RECEIVING ACID GRADE FLUORSPAR FILTER CAKE FROM VESSELS INTO TRUCKS AND TO CONVEY, UNLOAD AND PROPERLY PILE SUCH MATERIAL ON TRACT 3 OF THE GOVERNMENT STORAGE SITE, TO MAINTAIN THE PILE, AND TO ACCOMPLISH NECESSARY DOCUMENTATION AND DISTRIBUTION OF GOVERNMENT AND OTHER FORMS IN CONNECTION WITH RECEIPT OF THE FLUORSPAR AND SERVICES PERFORMED HEREUNDER. * * * "

BUT, AS STATED BY YOU, SUCH CONTRACT CONTAINS NO EXPRESS PROVISION FOR PAYMENT OF WHARF USAGE CHARGES, OR ANY OTHER CHARGES, BY THE CONTRACTOR. FURTHERMORE, PURSUANT TO SECTION 2.G. OF THE SUPPLY CONTRACT, QUOTED ABOVE, THE TYPE OF INLAND CARRIER WAS AT THE OPTION OF THE GOVERNMENT. A CONSEQUENCE OF SUCH OPTION, THE GOVERNMENT SELECTED A MOTOR VEHICLE--- THE ONLY TYPE CARRIER SUBJECT TO THE WHARFAGE USAGE CHARGE--- AND IN SO DOING, IT APPEARS REASONABLE TO ASSUME THAT THE GOVERNMENT INTENDED TO ASSUME ANY ADDITIONAL CHARGES OCCASIONED THEREBY AND NOT OTHERWISE SPECIFICALLY PROVIDED FOR.

ACCORDINGLY, THE INVOICES, WHICH ARE RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT.