B-119476, FEB. 3, 1956

B-119476, FEB. 3, 1956

TO MR. B. FOSLER, ASSISTANT CONTROLLER, THE BALTIMORE AND OHIO RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER WRITTEN UNDER FILE USG BILL 419974 CRS IN WHICH YOU REQUEST RECONSIDERATION OF THE SETTLEMENT CERTIFICATE DATED MAY 25, 1953, CLAIM NO. TK-426643, WHICH DISALLOWED YOUR CLAIM FOR $359.38 ALLEGED TO BE DUE FOR SERVICES SAID TO HAVE BEEN PERFORMED FOR THE NATIONAL BUREAU OF STANDARDS IN THE TRANSPORTATION OF A CARLOAD OF MAGNETITE ORE FROM NORTH CREEK, NEW YORK, TO GEORGETOWN, D.C., IN JANUARY 1944.

IN SUPPORT OF YOUR REQUEST YOU HAVE FURNISHED A PHOTOSTATIC COPY OF NORTH CREEK, NEW YORK, FREIGHT WAYBILL NO. 205, DATED JANUARY 15, 1944, ISSUED BY THE DELAWARE AND HUDSON RAILROAD, WHICH BEARS THE TYPEWRITTEN REFERENCE "GOVT BL NO C-266567" AND THE NOTATION "GOVERNMENT FREIGHT.' THE RECORD THUS SUGGESTS THAT THE NATIONAL LEAD COMPANY TENDERED THE SHIPMENT TO THE DELAWARE AND HUDSON RAILROAD AT NORTH CREEK UNDER GOVERNMENT BILL OF LADING NO. C-266567, CONSIGNED TO THE NATIONAL BUREAU OF STANDARDS, NOTIFY CORSON AND GRUMAN COMPANY, 33RD AND K STREETS, GEORGETOWN, D.C., OR THAT SHIPMENT WAS MADE ON A COMMERCIAL BILL OF LADING FOR CONVERSION TO GOVERNMENT BILL OF LADING C-266567 AT DESTINATION. NOTHING IN THE RECORD SHOWS THAT YOUR ORIGINAL BILL NUMBERED 419975 WAS PRESENTED FOR PAYMENT EITHER IN 1944 OR SUBSEQUENTLY, UNTIL JULY 1, 1952, WHEN YOU STATED THAT THE ORIGINAL GOVERNMENT BILL OF LADING COULD NOT BE FOUND IN YOUR FILES AND REQUESTED THE NATIONAL BUREAU OF STANDARDS TO ISSUE A CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF LADING SO THAT YOU MIGHT BILL FOR TRANSPORTATION CHARGES THEREON, WHICH ARE SAID NEVER TO HAVE BEEN PAID. IN LETTERS DATED JULY 9, 1952, AND DECEMBER 12, 1952, THE BUREAU INFORMED YOU THAT IT WAS UNABLE TO EXECUTE SUCH A CERTIFICATE BECAUSE THE RECORDS COVERING 1944 SHIPMENTS HAD BEEN DESTROYED AND SUGGESTED THAT YOU ASSEMBLE ALL FACTS IN THE MATTER AND PRESENT THEM TO OUR OFFICE FOR CONSIDERATION. THEREAFTER, IN A LETTER DATED DECEMBER 18, 1952, TO THE TRANSPORTATION DIVISION OF OUR OFFICE, SUPPORTED ONLY BY COPIES OF THE AFORESAID LETTERS, A COPY OF YOUR LETTER OF OCTOBER 23, 1952, AGAIN REQUESTING EXECUTION OF THE REQUIRED CERTIFICATE, AND A COPY OF YOUR BILL, YOU REQUESTED PAYMENT OF THE CHARGES CLAIMED FOR THE ALLEGED SERVICES. PAYMENT THEREOF WAS DISALLOWED BY THE CITED SETTLEMENT BECAUSE THE EVIDENCE WAS DEEMED INSUFFICIENT TO ESTABLISH THE PERFORMANCE OF THE SERVICE. IN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT YOU URGE THAT YOUR FAILURE TO COMPLY WITH THE PROVISIONS OF PARAGRAPH 10 OF CENTRAL REGULATIONS NO. 97 IS DUE DIRECTLY TO THE DESTRUCTION OF PERTINENT GOVERNMENT RECORDS AND, THEREFORE, IT IS UNJUST TO REJECT YOUR CLAIM. HOWEVER, YOU COMPLETELY IGNORE THE FACT THAT YOU DELAYED IN YOUR EFFORTS TO EFFECT COLLECTION OF THESE CHARGES UNTIL MORE THAN EIGHT YEARS AFTER THE SERVICES ARE SAID TO HAVE BEEN PERFORMED.

THE BURDEN IS ON CLAIMANTS TO FURNISH EVIDENCE SATISFACTORILY ESTABLISHING THEIR CLAIMS (18 COMP. GEN. 980; 17 ID. 831). SEE INSTRUCTION NO. 2 ON THE BACK OF THE GOVERNMENT BILL OF LADING, STANDARD FORM NO. 1058 (8 COMP. GEN. 699), AND THE SUPERSEDING ISSUE, STANDARD FORM NO. 1103 (22 COMP. GEN. 1178). IN THE ABSENCE OF SUCH EVIDENCE, OTHER EVIDENCE COMPETENTLY ESTABLISHING THE RIGHT TO PAYMENT MAY BE ACCEPTED.

THE PRESENT RECORD SHOWS THAT THE ADMINISTRATIVE OFFICE HAD DESTROYED ITS RECORDS PERTAINING TO THE SUBJECT SHIPMENT BEFORE YOU ATTEMPTED TO SECURE A CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF LADING. THE SERVICE FOR WHICH CHARGES ARE CLAIMED IS ALLEGED TO HAVE BEEN PERFORMED IN JANUARY 1944 AND IT APPEARS THAT IT WAS NOT UNTIL JULY 1, 1952, APPROXIMATELY EIGHT AND ONE-HALF YEARS LATER, THAT YOU UNDERTOOK TO SECURE A CERTIFICATE IN LIEU OF LOST U.S. GOVERNMENT BILL OF LADING AND TO PRESENT A BILL FOR PAYMENT. IT SEEMS THAT MORE TIMELY ACTION ON YOUR PART MIGHT HAVE PERMITTED THE ASSEMBLING OF A MORE SATISFACTORY RECORD. THEREFORE, IT MUST BE HELD THAT THE RECORD, AS PRESENTED, DOES NOT ESTABLISH BY SATISFACTORY EVIDENCE THE LIABILITY OF THE UNITED STATES FOR THE PAYMENT OF THE CHARGES CLAIMED AND, IN THE ABSENCE OF SUCH EVIDENCE, THIS OFFICE IS WITHOUT AUTHORITY TO CERTIFY YOUR BILL FOR PAYMENT. SEE CHARLES V. UNITED STATES, 19 C. CLS. 316; LONGWILL V. UNITED STATES, 17 C.CLS. 288.