B-190655 L/M, APR 2, 1980

B-190655 L/M, APR 2, 1980

OFFICE OF GENERAL COUNSEL SUBJECT: BOWMAN TRANSPORTATION, INC. V. UNITED STATES; COURT OF CLAIMS NO. 298-78; YOUR REFERENCE: AD:DMC:JCRANNEY:MCW 154-298-78

ALICE DANIEL, DEPARTMENT OF JUSTICE:

WE HAVE RECONSIDERED OUR POSITION CONCERNING PLAINTIFF'S OFFER TO SETTLE THIS CASE FOR $15,786.23 (TWO-THIRDS OF THE AMOUNT DEDUCTED FROM THE CARRIER) AND BELIEVE THAT DESPITE THE INFORMATION CONTAINED IN YOUR LETTER OF MARCH 17, 1980, OUR RECOMMENDATION OF JANUARY 15, 1980, FOR REJECTION WAS SOUND; HOWEVER, IN VIEW OF THE CHANGE OF POSITION AND ATTITUDE OF THE GOVERNMENT'S POTENTIAL WITNESSES WITH RESPECT TO THE LIMITED USE ACTUALLY MADE OF THE NUTS AND CLAMPS BY THE MARINE CORPS, WE WOULD NOT OBJECT TO SETTLEMENT AT THIS TIME.

OUR ORIGINAL RECOMMENDATION TO REJECT THE OFFER WAS BASED ON REPRESENTATIONS THEN MADE BY THE WITNESSES YOU RECENTLY CONTACTED. THESE REPRESENTATIONS WERE DISCLOSED IN OUR DECISION, B-190655, FEBRUARY 17, 1978, AND IN OUR LITIGATION REPORT OF AUGUST 3, 1978. THE WITNESSES STATED THAT THE ITEMS WERE DESIRABLE AND USEFUL TO THE MARINE CORPS MUSEUM FOR THE PURPOSE OF RESTORING MUSEUM PIECES; AND THAT THE VALUE OF THE LOST ITEMS IS THE VALUE SHOWN ON THE INVOICE TRANSFER DOCUMENT; I.E., THE REQUISITION AND INVOICE/SHIPPING DOCUMENT (DD FORM 1149).

WE ACCEPTED THE FACTUAL REPRESENTATIONS AND AGREED WITH THEIR OPINION ON THE LAW BECAUSE OF THE FURTHER REPRESENTATION THAT THERE WAS NO MARKET FOR THE ITEMS LOST. IT HAS BEEN OUR POSITION ALL ALONG THAT IN THE ABSENCE OF A MARKET VALUE THE MEASURE OF DAMAGES IS THEIR ACTUAL VALUE AS SHOWN ON THE CATALOG/INVOICE.

AS WE EXPLAINED IN OUR LETTER OF JANUARY 15, 1980, 49 U.S.C. SEC. 20(11) HOLDS THE CARRIER LIABLE FOR THE FULL, ACTUAL, LOSS; AND WE BELIEVE THERE IS A SUBSTANTIAL BASIS FOR THE ARGUMENT THAT WHETHER THE GOVERNMENT USED 160 EACH OF THE CLAMPS AND NUTS, OR ALL OF THE 54,511 CLAMPS AND 6,890 NUTS, IS OF NO CONCERN TO THE CARRIER. FOR EXAMPLE, WE FIND IN UNITED STATES V. N.Y., N.H. & H. R.R. CO., 211 F.2D 404 (2ND CIR. 1954), THE PRINCIPLE THAT SPECIAL CIRCUMSTANCES OF ONE PARTY (THE GOVERNMENT-SHIPPER) DOES NOT VARY THE CARRIER'S DUTY TO TRANSPORT NOR ITS LIABILITY UNDER 49 U.S.C. SEC. 20(11). IN THAT CASE THE CARRIER ARGUED, UNSUCCESSFULLY, THAT SINCE THE DAMAGED PROPERTY WAS BEING SENT TO A HOSPITAL AS A GIFT, THE GOVERNMENT WAS ENTITLED ONLY TO NOMINAL DAMAGES. THE COURT REASONED THAT IN VIEW OF THE CARRIER'S DUTIES AT LAW, IT SHOULD NOT RECEIVE THE BENEFIT OF THE INTENDED DONATION AS A RESULT OF THE BREACH OF ITS DUTIES. THIS WAS CITED IN UNITED STATES V. FT. WORTH & DENVER RY. CO., 141 F. SUPP. 381 (D.C. N.D. TEXAS, 1956), ON THE BASIS OF THE SUPREME COURT'S APPLICATION OF 49 U.S.C. SEC. 20(11) IN CHICAGO, MILWAUKEE & ST. PAUL RY. CO. V. MCCAULL-DINSMORE CO., 253 U.S. 97 (1920).

WHETHER THE MARINE CORPS PURCHASED THE ITEMS OR NOT SEEMS IRRELEVANT IN VIEW OF THE FACT THAT THE GOVERNMENT PURCHASED THEM. WE FEEL THAT THE CATALOG/INVOICE PRICE REPRESENTS THE VALUE OF THE LOST ITEMS, AND THE WITNESSES TO WHOM YOU REFER WERE THE SOURCE OF THE CATALOG/INVOICE. THIS POINT, SEE CENTRAL OF GEORGIA RAILWAY CO. V. UNITED STATES, 145 F. SUPP. 536 (CT.CL. 1956) WHERE THE COURT ACCEPTED THE ARMY QUARTERMASTER CORPS' PRICING GUIDE AS EVIDENCE OF THE VALUE OF LOST PROPERTY.

ALTHOUGH WE CONCEDE OUR AUTHORITIES MAY BE SUBJECT TO BEING DISTINGUISHED, IN THE ABSENCE OF DECISIONS CONTROLLING THE ISSUE, THE CARRIER MIGHT VERY WELL BE LIABLE FOR THE ENTIRE LOSS OF $23,570.46. HOWEVER, IN VIEW OF THE RECANTATION OF THE GOVERNMENT'S WITNESSES, AND CONSIDERING GENERALLY THE RISKS OF LITIGATION, IT IS OUR OPINION THAT ACCEPTANCE OF THE PLAINTIFF'S OFFER WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT AND WE RECOMMEND ITS ACCEPTANCE.