B-171084, DEC. 15, 1970

B-171084, DEC. 15, 1970

BAILEE FOR HIRE - LIABILITY FOR NEGLIGENCE REAFFIRMING DECISION THAT DENIED CLAIM OF CONTINENTAL DRILLING COMPANY FOR $1,000 REPRESENTING THE REPLACEMENT COSTS OF A LONGEYAR PORTA DIAMOND CORE DRILL, RENTED BY THE DEPARTMENT OF INTERIOR, WHICH WAS BURIED UNDER LAVA WHEN ALAE CRATER ERUPTED. WHERE THE GOVERNMENT RENTS A DIAMOND DRILL FOR DRILLING IN THE CRUST OF A LAVA LAKE OF ALAE PIT CRATER, THEN GOVERNMENT WAS A BAILEE FOR HIRE AND OWED AN ORDINARY STANDARD OF CARE AND IS LIABLE FOR ORDINARY NEGLIGENCE. WHERE THE DRILL WAS USED IN PLACE ANTICIPATED BY BAILOR, AND IT WAS PHYSICALLY AND FINANCIALLY IMPRACTICAL TO REMOVE THE DRILL BETWEEN PERIODS OF ACTIVE DRILLING, THEN THE GOVERNMENT EXERCISED DUE CARE AND WAS NOT NEGLIGENT.

TO HUDSON AND CREYKE:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 4, 1970, WHICH REQUESTED RECONSIDERATION OF THE SETTLEMENT CERTIFICATE OF JUNE 16, 1970, ISSUED BY THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE, Z 2401351, WHICH DISALLOWED THE CLAIM OF THE CONTINENTAL DRILLING COMPANY, HONOLULU, HAWAII, IN THE AMOUNT OF $1,000 REPRESENTING THE REPLACEMENT COSTS FOR A LONGEYAR PORTA DIAMOND CORE DRILL WHICH WAS BURIED UNDER LAVA WHEN ALAE CRATER ERUPTED ON MAY 24, 1969.

THE FACTS AS SUMMARIZED IN YOUR LETTER AND AS SET OUT IN THE EXHIBITS ATTACHED TO YOUR LETTER ARE ESSENTIALLY SIMILAR TO THE FACTS ADMINISTRATIVELY REPORTED TO THIS OFFICE. BRIEFLY, THE GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR BY ORAL AGREEMENT HAD RENTED THE DRILL FROM THE CONTINENTAL DRILLING COMPANY, HONOLULU, HAWAII, FOR THE PURPOSE OF DRILLING FOR CORE IN THE CRUST OF THE LAVA LAKE OF ALAE PIT CRATER. THIS LAKE HAD BEEN FORMED IN AN ERUPTION OF FEBRUARY 22 AND 23, 1969. THE CONTINENTAL DRILLING COMPANY HAD KNOWLEDGE OF THE INTENDED USE OF THE DRILL BY THE GEOLOGICAL SURVEY. THE GEOLOGICAL SURVEY HAD KNOWLEDGE OF PAST VOLCANIC ACTIVITY IN THE AREA AND THE POSSIBILITY OF ANOTHER ERUPTION IN THE SPRING OR SUMMER OF 1969. IT IS STATED IN YOUR "EXHIBIT 1" WHICH IS A COPY OF A MEMORANDUM DATED JULY 30, 1969, TO THE ASSISTANT CHIEF GEOLOGIST-GEOCHEMISTRY AND GEOPHYSICS FROM H. A. POWERS, HAWAIIAN VOLCANO OBSERVATORY THAT:

"THE OBSERVATIONS MADE BY THE OBSERVATORY STAFF DURING THE PERIOD FEBRUARY 28 TO MAY 24, 1969 INDICATED THAT KILAUEA VOLCANO WAS BEING RECHARGED WITH LAVA, A REPETITION OF THE PROCEEDINGS BETWEEN THE SHORT ERUPTIONS OF AUGUST 1968-OCTOBER 1968 AND AGAIN BETWEEN THE ERUPTIONS OF OCTOBER 1968-FEBRUARY 1969. EACH OF THESE THREE RIFT ZONE ERUPTIONS TOOK PLACE FROM A DIFFERENT LINE OF FISSURES IN DIFFERENT PARTS OF THE RIFT ZONE. THUS, IT WAS EXPECTABLE THAT ANOTHER RIFT ERUPTION WOULD TAKE PLACE DURING THE SPRING OR SUMMER OF 1969, BUT THERE WAS NO BASIS FOR SUPPOSING THAT IT WOULD TAKE PLACE FROM A POSITION TO FLOW AGAIN INTO ALAE PIT CRATER."

ALSO IT IS STATED IN YOUR "EXHIBIT 1" THAT--

"2. THE PURPOSE OF RENTING THE DRILL, THE CONDITIONS UNDER WHICH THE DRILLING WOULD BE DONE, AND THE SITE OF THE OPERATION WERE EXPLAINED AND UNDERSTOOD. THE RENTER HAD SEEN SOME OF OUR SIMILAR PREVIOUS OPERATIONS AND EXPRESSED NO RESERVATIONS GOVERNING OUR INTENDED USE OF THE DRILL."

IN ADDITION TO THE FACTS SET OUT ABOVE, THE ADMINISTRATIVE OFFICE REPORTED THAT THE VERBAL AGREEMENT WAS TO RENT THE DRILL FOR THREE MONTHS AT $150 PER MONTH WITH OPTION TO CONTINUE RENTING IF NECESSARY. IT ALSO REPORTED THAT THE DRILL, ALONG WITH ACCESSORY ITEMS NECESSARY TO DRILL FOR CORE IN THE CRUST ON THE LAVA LAKE WAS INSTALLED IN ALAE PIT CRATER AND WAS BEING USED FOR THE PURPOSE OF DRILLING. IT WAS PHYSICALLY AND FINANCIALLY IMPRACTICAL TO REMOVE THE DRILL AND ACCESSORIES BETWEEN PERIODS OF ACTIVE DRILLING.

WE AGREE WITH YOUR CONCLUSION THAT UNDER THE CIRCUMSTANCES THE GOVERNMENT WAS A BAILEE FOR HIRE AND OWED AN ORDINARY STANDARD OF CARE. AS STATED IN CLARK V UNITED STATES, 95 U.S. 539, 542 (1877).

"A BAILEE FOR HIRE IS ONLY RESPONSIBLE FOR ORDINARY DILIGENCE AND LIABLE FOR ORDINARY NEGLIGENCE IN THE CARE OF THE PROPERTY BAILED. THIS IS NOT ONLY THE COMMON LAW, BUT THE GENERAL LAW ON THE SUBJECT. *** " SEE ALSO 8 AM. JUR. 2D, BAILMENTS SEC 207 IN WHICH IT IS STATED:

"AS APPLIED TO BAILMENTS, ORDINARY CARE MEANS SUCH CARE AS ORDINARY PRUDENT MEN, AS A CLASS, WOULD EXERCISE IN CARING FOR THEIR OWN PROPERTY UNDER LIKE CIRCUMSTANCES *** ."

WE CANNOT AGREE, HOWEVER, WITH YOUR CONCLUSIONS THAT THE GOVERNMENT FAILED TO EXERCISE DUE CARE IN PROTECTING THE DRILL. ON THE CONTRARY IT APPEARS THAT THE DRILL TOGETHER WITH NECESSARY ACCESSORIES WAS INSTALLED FOR THE USE AND AT THE PLACE ANTICIPATED BY BOTH THE BAILOR AND THE BAILEE. IT WAS PHYSICALLY AND FINANCIALLY IMPRACTICAL TO REMOVE THE DRILL AND ACCESSORIES BETWEEN PERIODS OF ACTIVE DRILLING. THE ERUPTION THAT BURIED THE DRILLING EQUIPMENT BEGAN ABOUT 2 A.M. WITH A SWARM OF SMALL EARTHQUAKES AND BROKE THE SURFACE AT 4 A.M. ON MAY 24, 1969. IT IS STATED THAT THIS WAS NOT A PRACTICAL OR USABLE WARNING. NO PRACTICABLE PRECAUTION SUGGESTS ITSELF WHICH COULD HAVE BEEN TAKEN TO PROTECT THE DRILL AND STILL USE IT FOR THE PURPOSE INTENDED BY BOTH PARTIES.

WE ARE OF THE OPINION THAT UNDER THE FACTS PRESENTED THE REPRESENTATIVES OF THE GOVERNMENT EXERCISED SUCH CARE AS ORDINARY PRUDENT MEN AS A CLASS WOULD EXERCISE IN CARING FOR THEIR OWN PROPERTY UNDER LIKE CIRCUMSTANCES.

ACCORDINGLY, THE SETTLEMENT OF JUNE 16, 1970, WHICH DISALLOWED THE CLAIM IS SUSTAINED.