The opinion of the court was delivered by: GOURLEY
This is an action by the United States of America to recover damages allegedly occasioned by a forced delay in the sale of a barge.
It is contended that Charles Zubik, in an unsuccessful appeal to the United States Court of Appeals for the Third Circuit, 190 F.2d 278; 202 F.2d 599, petitioning for possession of said barge, caused damages to the United States of America for the following:
1. Difference between previous high bid submitted by National Barge Company and the subsequent lower sale price following appeal.
3. Cost of re-advertising.
The Manufacturers Casualty Company, having posted the supersedeas bond for the appeal, is an additional defendant to the proceeding.
Upon complete and exhaustive nonjury trial, it appeared to be not in dispute that subsequent to the receipt of the firm bid of National Barge Company, the Corps of Engineers, upon knowledge of the pendency of the appeal enjoining the sale, afforded an opportunity to the bidders, including National Barge Company to withdraw. Those who chose not to withdraw their bids were advised that the determination of the award and sale must await disposition of the appeal.
The National Barge Company failed to withdraw its bid after being notified of the modifications of the invitation for bids and thereby permitted its bid to be opened subject to such modifications.
Since the National Barge Company permitted its bid to be opened subject to the proffered modification, I must conclude that it could not thereafter be withdrawn, and the United States of America could have required the National Barge Company to abide by its firm offer. United States v. Lipman, D.C., 122 F.Supp. 284.
I must find, therefore, that any damages which arose to the United States of America resulting from the sale of the barge after the appeal for a lower bid than that proffered by the National Barge Company was due to the failure of the United States of America to give effect to the bid of the National Barge Company.
Since the damages in failing to hold National Barge Company to its bid arose through the fault and judgment of the United States of America, the damages, which naturally flowed therefrom, should not be imposed upon the defendants.
It is my judgment, however, that defendants should be required to assume the custodial charges which, consequent to the appeal, would have resulted even though the United States had ...