B-162768, MAY 29, 1968

B-162768, MAY 29, 1968

TO CLARK EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 18, 1967, JANUARY 17, 1968, AND JANUARY 26, 1968, IN WHICH YOU HAVE ESSERTED A CLAIM AGAINST THE UNITED STATES FOREST SERVICE FOR VANDALISM DAMAGES CAUSED TO A SPAWNING GRAVEL CLEANING DEVICE FURNISHED TO THE GOVERNMENT UNDER CONTRACT NO. 13- 177. THE UNIT WAS DELIVERED ON JUNE 22, 1967, TO THE FOREST SERVICE'S REGIONAL OFFICE IN JUNEAU, ALASKA, WHERE THE MACHINE WAS SCHEDULED TO UNDERGO EXTENSIVE TESTING PRIOR TO ACCEPTANCE BY THE GOVERNMENT. FOR THE FIRST THREE WEEKS OF THE TESTING PERIOD THE DEVICE WAS TRANSPORTED EACH MORNING TO A TESTING SITE AND RETURNED TO JUNEAU IN THE EVENING. SINCE TRANSPORTING THE MACHINE IN THIS MANNER CONSUMED SEVERAL HOURS OF THE WORKING DAY, YOUR COMPANY AND THE FOREST SERVICE MUTUALLY DECIDED TO LEAVE THE MACHINE AT THE TESTING SITE OVERNIGHT. ON THE EVENING OF JULY 18, 1967, THE FOREST SERVICE SURMISES THE BRAKES ON THE MACHINE WERE RELEASED BY CHILDREN CAUSING THE DEVICE TO ROLL INTO A NEARBY CREEK. SINCE THE BILGE PLUGS WERE OPENED, SALT WATER ENTERED THE DEVICE CAUSING CONSIDERABLE DAMAGE TO THE ENGINE COMPARTMENT AND REQUIRING A COMPLETE OVERHAULING OF THE MOTORS AND REPLACEMENT OF ALL ELECTRICAL GAUGES.

YOU CONTEND THAT UNDER THE CIRCUSTANCES THE GOVERNMENT SHOULD BE VIEWED AS HAVING BEEN A BAILES OF THE MACHINE, AND UNDER A DUTY OF EXERCISING REASONABLE CARE IN PROTECTING THE DEVICE FROM LOSS OF THE TYPE WHICH OCCURRED HERE. YOU STATE THAT A BAILMENT MAY BE SHOWN BECAUSE THE UNIT WAS PLACED AT THE DISPOSAL OF THE FOREST SERVICE FOR INSPECTION AND ACCEPTANCE. YOU FURTHER ALLEGE THAT THE SITE WHERE THE MACHINE WAS STORED OVERNIGHT WAS WELL KNOWN TO LOCAL OFFICIALS AS A PICNIC AREA IN WHICH THE POSSIBILITY OF VANDALISM WAS LIKELY AND THAT THE GOVERNMENT FAILED TO COMMUNICATE THIS KNOWLEDGE TO YOU; CONSEQUENTLY, YOU MAINTAIN THE GOVERNMENT BREACHED ITS DUTY OF REASONABLY PROTECTING THE DEVICE FROM THE LOSS WHICH OCCURRED HERE AND SHOULD BE HELD LIABLE FOR THE DAMAGES WHICH WERE INCURRED.

THE FOREST SERVICE HAS ADVISED US THEY DO NOT CONSIDER THAT A BAILMENT OF THE DEVICE AROSE BECAUSE IT HAD NOT ACCEPTED DELIVERY OR ASSUMED OWNERSHIP AND CONTROL OF THE MACHINE; MOREOVER, ALL DECISIONS REGARDING TRANSPORTATION AND STORAGE OF THE MACHINE WERE ARRIVED AT JOINTLY AFTER DISCUSSION BETWEEN YOUR COMPANY AND THE FOREST SERVICE. WE CONCUR IN THE FOREST SERVICE'S DETERMINATION THAT A BAILMENT DID NOT EXIST UNDER THESE CIRCUMSTANCES. TO CONSTITUTE A BAILMENT THERE MUST BE A FULL DELIVERY OF THE BAILED PROPERTY TO THE BAILEE. THE SUFFICIENCY OF DELIVERY NECESSARY TO SUPPORT A FINDING OF BAILMENT HAS BEEN DESCRIBED IN 8 C.J.S. BAILMENTS SEC. 15A (2) AS FOLLOWS:

"GENERALLY, SUCH A FULL DELIVERY OF THE SUBJECT MATTER MUST BE MADE TO THE BAILEE AS WILL ENTITLE HIM TO EXCLUDE FOR THE TIME OF THE BAILMENT THE POSSESSION OF THE OWNER AND ALL OTHER PERSONS, GIVE THE BAILEE AN INDEPENDENT AND TEMPORARILY EXCLUSIVE POSSESSION OF THE PROPERTY, OR SOLE CUSTODY AND CONTROL, RESULT IN AN ACTUAL CHANGE OF LEGAL AS WELL AS PHYSICAL POSSESSION OF THE PROPERTY FROM THE BAILOR TO THE BAILEE, MAKE HIM LIABLE TO THE OWNER AS THE SOLE CUSTODIAN OF THE PROPERTY IN THE EVENT OF HIS NEGLECT OR FAULT IN DISCHARGING HIS TRUST WITH RESPECT TO THE SUBJECT MATTER, AND REQUIRE A REDELIVERY OF IT BY HIM TO THE OWNER OR OTHER PERSON ENTITLED TO RECEIVE IT AFTER THE TRUSTS OF THE BAILMENT HAVE BEEN DISCHARGED.' EVEN THOUGH THE MACHINE WAS DELIVERED TO THE GOVERNMENT FOR TESTING PURPOSES THE FOREST SERVICE DID NOT EXERCISE SOLE CUSTODY AND CONTROL OVER THE DEVICE, NOR WOULD IT APPEAR THAT THEY WOULD HAVE BEEN ENTITLED TO EXERCISE SUCH CONTROL HAD THEY DESIRED TO DO SO SINCE UNDER ARTICLE IV

- OBLIGATIONS OF THE CONTRACTOR CLAUSE 3, OF THE SUBJECT CONTRACT IT WAS THE RESPONSIBILITY OF THE CONTRACTOR TO PROVIDE A DEMONSTRATION AND TEST OF THE UNIT IN ALASKA PRIOR TO THE GOVERNMENT'S ACCEPTANCE. THIS RESPONSIBILITY WOULD APPEAR TO IMPLY THAT THE GOVERNMENT DID NOT INTEND TO EXERCISE THE RIGHT TO EXCLUSIVE CONTROL OF THE DEVICE DURING THE TESTING PERIOD.

EVEN IF WE ASSUME, ARGUENDO, THAT A BAILMENT RELATIONSHIP EXISTED, WE DO NOT THINK THE GOVERNMENT BREACHED ANY DUTY OF CARE IT MAY HAVE ASSUMED TOWARD THE DEVICE. ALTHOUGH YOU ALLEGE THE GOVERNMENT OFFICALS KNOW THE POSSIBILITY OF VANDALISM WAS LIKELY IN THE AREA CHOSEN FOR STORAGE AND FAILED TO COMMUNICATE THIS KNOWLEDGE TO YOU, THE REGIONAL FORESTER DISPUTES YOUR CONTENTIONS AS FOLLOWS:

"THE FISH CREEK SITE MIGHT BE DESCRIBED AS SOMETHING OF A -LOVERS' LANE- AREA OF WHICH THERE ARE PERHAPS SEVERAL DOZEN IN THE VICINITY OF JUNEAU, MANY OF WHICH ARE MUCH CLOSER TO THE HEAVILY POPULATED AREAS THAN IS FISH CREEK. THERE IS NO RECORD OF VANDALISM IN THE FISH CREEK AREA BECAUSE THERE ARE NO IMPROVEMENTS IN THIS AREA TO BE VANDALIZED. IT IS SIMPLY A RURAL-TYPE AREA ALONG A STREAM ACCESSIBLE BY ROAD, OF WHICH THERE ARE MANY SIMILAR SITES IN THE JUNEAU VICINITY. THIS WAS A RATHER POPULAR AREA AT THIS TIME OF YEAR BECAUSE OF THE SALMON RUN WHICH ATTRACTED FISHERMEN TO THE STREAM; HOWEVER, NEITHER FISHERMEN NOR LOVERS ARE HIGHLY PRONE TO VANDALISM, AND THERE WOULD SEEM TO BE NO NECESSITY FOR UNUSUAL PRECAUTIONS TO PROTECT EQUIPMENT FROM THIS TYPE OF PEOPLE.

"AN IMPORTANT CONSIDERATION HERE WOULD APPEAR TO BE THE FACT THAT TO THE BEST OF OUR KNOWLEDGE, THE DAMAGE TO THE MACHINE RESULTED NOT FROM AN ACT OF VANDALISM, BUT FROM THE CURIOSITY OF TWO YOUNG BOYS WHO MOUNTED THE MACHINE AND TURNED THE STEERING WHEEL IN A SIMULATED ACT OF DRIVING AND THEREBY UNKNOWINGLY RELEASED THE BRAKES, PERMITTING THE MACHINE TO ROLL DOWNHILL INTO THE STREAM. EVEN THIS ACT WOULD NOT HAVE CAUSED DAMAGE HAD SOMEONE AT THE SITE KNOWN THAT THE DRAIN PLUGS WERE OPEN IN THE BILGE. WAS THE RISING TIDEWATER WHICH FILLED THE BILGE AND RESULTED IN OVERTURNING OF THE MACHINE THAT CAUSED THE ACTUAL DAMAGE.

"IT WOULD SEEM TO US THAT THE TYPE OF HAZARD INVOLVED IN LEAVING THE MACHINE AT THE SITE UNATTENDED OVERNIGHT WAS EQUALLY RECOGIZABLE BY BOTH THE CLARK EQUIPMENT COMPANY PEOPLE AND THE FOREST SERVICE EMPLOYEES INVOLVED AND THE DECISION WAS ARRIVED AT BY MUTUAL AGREEMENT, WITHOUT ANY DISCUSSION OF THE ELEMENT OF NEGLIGENCE OR RESPONSIBILITY ON THE PART OF EITHER PARTY.'

IN VIEW OF THE FOREGOING IT IS OUR OPINION THAT THE RECORD DOES NOT ESTABLISH ANY BREACH OF OBLIGATION OR DUTY BY THE FOREST SERVICE WHICH WOULD RENDER THE GOVERNMENT LIABLE FOR PAYMENT OF THE LOSSES YOU HAVE INCURRED. ACCORDINGLY, YOUR CLAIM MUST BE DENIED.