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WHICH SHIPMENT WAS MADE ERRONEOUSLY BY PHOENIX BRUSH COMPANY. THE PERTINENT FACTS IN THE MATTER ARE SET OUT IN OUR DECISION OF DECEMBER 14. THE DUPLICATE SHIPMENT WAS MADE BY PHOENIX BRUSH COMPANY. THE SHIPMENT WAS MADE TO THE WRONG CONSIGNEE (SAN FRANCISCO PORT OF EMBARKATION) WITHOUT ACCOMPANYING DOCUMENTS. IT IS STATED THAT "IT APPEARS THAT THERE IS NO CONCLUSIVE PROOF THAT THE SHIPMENT WAS RETURNED TO PHOENIX.'. THE DEPARTMENT OF THE ARMY IS UNABLE TO FURNISH ANY EVIDENCE THAT THE DUPLICATE SHIPMENT WAS RECEIVED AT THE FINAL OVERSEAS DESTINATION OF THE ORIGINAL SHIPMENT OR THAT IT WAS IN FACT USED BY THE UNITED STATES. IT IS TO BE OBSERVED. THAT THE SHIPPER'S DELAY IN REPORTING THAT THE DUPLICATE SHIPMENT HAD NOT BEEN RETURNED MAY HAVE CONTRIBUTED TO THE DIFFICULTY OF ASCERTAINING THE DISPOSITION OF THE SHIPMENT.

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B-129758, FEB. 13, 1957

TO H. MERTZBERG AND SON, INC.:

IN YOUR LETTER OF JANUARY 19, 1957, YOU REPEAT YOUR REQUEST FOR PAYMENT OF THE AMOUNT OF $131.25 CLAIMED TO BE DUE FOR A DUPLICATE SHIPMENT OF DRAFTSMAN BRUSHES, WHICH SHIPMENT WAS MADE ERRONEOUSLY BY PHOENIX BRUSH COMPANY, INC., TO THE SAN FRANCISCO PORT OF EMBARKATION, OAKLAND ARMY BASE, OAKLAND, CALIFORNIA, ON SEPTEMBER 3, 1952.

THE PERTINENT FACTS IN THE MATTER ARE SET OUT IN OUR DECISION OF DECEMBER 14, 1956, AND JANUARY 9, 1957, AND NEED NOT BE REPEATED HERE. THE DUPLICATE SHIPMENT WAS MADE BY PHOENIX BRUSH COMPANY, INC., THROUGH ITS ERROR, NOT THROUGH ANY ERROR ON THE PART OF THE GOVERNMENT, AND THE SHIPMENT WAS MADE TO THE WRONG CONSIGNEE (SAN FRANCISCO PORT OF EMBARKATION) WITHOUT ACCOMPANYING DOCUMENTS, ALL OF WHICH CAUSED CONFUSION AS TO THE PROPER DISPOSITION OF THE SHIPMENT. IN THE SUCCESSOR CONTRACTING OFFICER'S FINDINGS OF FACT, IT IS STATED THAT "IT APPEARS THAT THERE IS NO CONCLUSIVE PROOF THAT THE SHIPMENT WAS RETURNED TO PHOENIX.' ON THE OTHER HAND, THE DEPARTMENT OF THE ARMY IS UNABLE TO FURNISH ANY EVIDENCE THAT THE DUPLICATE SHIPMENT WAS RECEIVED AT THE FINAL OVERSEAS DESTINATION OF THE ORIGINAL SHIPMENT OR THAT IT WAS IN FACT USED BY THE UNITED STATES.

IT IS TO BE OBSERVED, ALSO, THAT THE SHIPPER'S DELAY IN REPORTING THAT THE DUPLICATE SHIPMENT HAD NOT BEEN RETURNED MAY HAVE CONTRIBUTED TO THE DIFFICULTY OF ASCERTAINING THE DISPOSITION OF THE SHIPMENT, THE FILE INDICATING THAT THE SHIPMENT WAS RECEIVED BY THE SAN FRANCISCO PORT OF EMBARKATION ON SEPTEMBER 19, 1952, AND THAT THE PHOENIX BRUSH COMPANY, INC., REPORTED NONRECEIPT OF THE RETURNED SHIPMENT IN FEBRUARY 1954--- APPROXIMATELY 117 MONTHS LATER.

IN VIEW OF THE UNCERTAINTY AS TO THE FINAL DISPOSITION OF THE DUPLICATE SHIPMENT AND IN THE ABSENCE OF PROOF THAT THE UNITED STATES USED THE BRUSHES OR THAT AGENTS OF THE UNITED STATES ACTED WITH GROSS NEGLIGENCE OR IN BAD FAITH, OUR OFFICE IS NOT AUTHORIZED TO APPROVE PAYMENT OF THE CLAIM. SEE 8 C.J.S. BAILMENTS SEC. 28; 4 A.L.R. 1196 (ANNOTATION); 96 A.L.R. 909 (ANNOTATION).

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