B-122319, APR. 17, 1956

B-122319: Apr 17, 1956

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DEPARTMENT OF THE TREASURY: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION A CLAIM OF THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY INVOLVING AN OFFER OF COMPROMISE GROWING OUT OF A SHORTAGE IN DELIVERY OF PROPERTY TRANSPORTED. THE FOLLOWING REPORT OF THE FACTS IS PRESENTED TO YOU FOR FORWARDING. BILL OF LADING WW-2535042 WAS ISSUED APRIL 19. IT WAS LOADED BY GOVERNMENT EMPLOYEES AT THE LEXINGTON SIGNAL DEPOT INTO CAR NP 17862. WHICH WAS RELEASED TO THE CARRIER AT 11 A.M. CERTIFIES THAT THE SECTION'S RECORDS SHOW ALL NINE BOXES WERE CHECKED INTO THE CAR BY CHECKER ROBBIE CABLE. THAT BOX NUMBER 6 WAS NOT RECEIVED. THE CARRIERS URGE THAT A MISTAKE MUST HAVE BEEN MADE BY THE GOVERNMENT AGENTS WHO LOADED THE CAR AND SEALED IT WITH L AND N SEALS 141448 AND 141449.

B-122319, APR. 17, 1956

TO FRED. C. SCRIBNER, JR., GENERAL COUNSEL, DEPARTMENT OF THE TREASURY:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION A CLAIM OF THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY INVOLVING AN OFFER OF COMPROMISE GROWING OUT OF A SHORTAGE IN DELIVERY OF PROPERTY TRANSPORTED. THE FOLLOWING REPORT OF THE FACTS IS PRESENTED TO YOU FOR FORWARDING, WITH YOUR RECOMMENDATION, TO THE SECRETARY OF THE TREASURY, AS PROVIDED IN 31 U.S.C. 194 AND TREASURY DEPARTMENT CIRCULAR NO. 39 (REVISED), 31 CFR 240.0-240- 5.

IN OCTOBER 1946, A WAR DEPARTMENT DISBURSING OFFICER DEDUCTED $400, THE VALUE OF THE LOSS, PLUS $1.38 UNEARNED FREIGHT CHARGES, FROM ACCOUNTS OF THE DELIVERING CARRIER, THE PENNSYLVANIA RAILROAD COMPANY. IN ITS INTERLINE SETTLEMENTS, THE PENNSYLVANIA CHARGED THE DEDUCTION BACK TO THE ACCOUNT OF THE INITIAL CARRIER, THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY, WHO LATER RE-CHARGED THE PENNSYLVANIA. THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY NOW COMPLAINS OF THE ORIGINAL DEDUCTION AND SEEKS ADJUSTMENT ON THE BASIS OF A REFUND OF 50 PERCENT OF THE AMOUNT DEDUCTED BY THE GOVERNMENT. IN A LETTER TO US DATED JANUARY 3, 1956, THE PENNSYLVANIA RAILROAD STATED ITS CONCURRENCE IN THE BASIS OF SETTLEMENT PROPOSED BY THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY, AND REQUESTED REFUND TO THE CARRIERS OF $200.69.

BILL OF LADING WW-2535042 WAS ISSUED APRIL 19, 1946, BY THE TRANSPORTATION OFFICER, LEXINGTON SIGNAL DEPOT, AVON, KENTUCKY, TO COVER THE TRANSPORTATION OF SHIPMENT NO. WDSD-69652, CONSISTING OF NINE BOXES OF TELEGRAPH INSTRUMENTS WEIGHING 1,333 POUNDS, FROM AVON, KENTUCKY, TO THE CHICAGO SIGNAL DEPOT, CHICAGO, ILLINOIS. WITH OTHER LESS-THAN-CARLOAD SHIPMENTS, IT WAS LOADED BY GOVERNMENT EMPLOYEES AT THE LEXINGTON SIGNAL DEPOT INTO CAR NP 17862, WHICH WAS RELEASED TO THE CARRIER AT 11 A.M. ON APRIL 22, 1946. AN AFFIDAVIT SIGNED JULY 28, 1948, BY THE DEPOT LCL SHIPPING SECTION SUPERVISOR, JOHN R. WELLS, CERTIFIES THAT THE SECTION'S RECORDS SHOW ALL NINE BOXES WERE CHECKED INTO THE CAR BY CHECKER ROBBIE CABLE. MAJOR GENE MOORE, DIRECTOR OF THE STORAGE DIVISION OF THE DECATUR SIGNAL DEPOT (FORMERLY CHICAGO SIGNAL DEPOT) CERTIFIED THAT THE RECORDS OF THAT DEPOT INDICATE THAT, UPON ARRIVAL AT CHICAGO, ONE E. MAURY CHECKED THIS SHIPMENT INTO THE SIGNAL DEPOT. IT THEN CONSISTED OF 8 BOXES, NUMBERS 1 THROUGH 5 AND 7 THROUGH 9. BOX NUMBER 6 CHECKED SHORT. GEORGE CRAWFORD,ADMINISTRATIVE ASSISTANT AT THE DEPOT, STATED IN AN AFFIDAVIT SIGNED SEPTEMBER 6, 1946, THAT HE HAD RECEIVED EIGHT OF THE BOXES, BUT THAT BOX NUMBER 6 WAS NOT RECEIVED.

THE CARRIERS URGE THAT A MISTAKE MUST HAVE BEEN MADE BY THE GOVERNMENT AGENTS WHO LOADED THE CAR AND SEALED IT WITH L AND N SEALS 141448 AND 141449, EITHER IN THE COUNT OR IN FAILING TO LOAD BOX NUMBER 6. AFTER LOADING AND SEALING BY GOVERNMENT AGENTS, THE CAR WAS ACCEPTED BY THE INITIAL CARRIER, THE LOUISVILLE AND NASHVILLE RAILROAD, IN FERRY CAR SERVICE, AS "SHIPPER'S LOAD AND COUNT.' UPON ARRIVAL AT CINCINNATI, OHIO, THE BREAK-BULK POINT, THE SEALS ON THE CAR WERE INTACT, BUT WHEN THEY WERE BROKEN AND THE CAR OPENED, THIS SHIPMENT CHECKED ONE BOX SHORT. BY WAY OF SUPPORT FOR THEIR CONTENTIONS, THE CARRIERS HAVE FURNISHED A PHOTOSTAT OF THE WAYBILL COPY OF BILL OF LADING WN-2535042, WHICH SHOWS A STROKE TALLY OF THE EIGHT BOXES FOUND IN THE SHIPMENT AND A HANDWRITTEN NOTATION OF THE SHORTAGE, SIGNED, K. L. SUTTON, AGT PER BB.' APPARENTLY H. L. SUTTON WAS THE CARRIER'S FREIGHT AGENT AT CINCINNATI. A COPY OF HIS "SHORT REPORT" TO THE FREIGHT CLAIM AGENT REPORTING THIS SHORTAGE, AND HIS AFFIDAVIT OF THIS SHORTAGE, WERE ALSO FURNISHED. THE DEPARTMENT OF THE ARMY, HOWEVER, REJECTED THE CARRIERS' ARGUMENTS, A "REPORT OF SURVEY" WAS APPROVED OCTOBER 8, 1946, RECOMMENDING THAT THE CARRIER BE HELD LIABLE FOR THE LOSS, AND THE DEDUCTION COMPLAINED OF FOLLOWED. THE FINANCE CENTER, U.S. ARMY, IN A LETTER DATED SEPTEMBER 15, 1955, RECOMMENDED ACCEPTANCE OF THE COMPROMISE OFFER. A COPY OF THAT LETTER IS ENCLOSED.

THE OFFER OF COMPROMISE WAS NOT ACCOMPANIED BY A CHECK, DRAFT, OR MONEY ORDER FOR THE AMOUNT OF THE OFFER--- AS PROVIDED BY TREASURY DEPARTMENT CIRCULAR NO. 39 (REVISED/--- FOR THE OBVIOUS REASON THAT THE GOVERNMENT IS PRESENTLY IN POSSESSION OF MONEY DEDUCTED FROM FUNDS DUE THE PENNSYLVANIA RAILROAD IN TWICE THE AMOUNT OF THE OFFER. IF THE SECRETARY OF THE TREASURY DECIDES TO ACCEPT THE COMPROMISE OFFER, WE WILL CERTIFY FOR PAYMENT THE EXCESS DEDUCTED BY THE DISBURSING OFFICER. ALTHOUGH THE CLAIM WAS BARRED FROM SUIT AT THE TIME IT WAS TRANSMITTED TO US, IT WAS RECEIVED HERE WELL WITHIN THE TEN-YEAR PERIOD AUTHORIZED FOR CONSIDERATION OF CLAIMS BY US, AS PROVIDED IN 31 U.S.C. 71A.

PHOTOSTATIC COPIES OF THE BILL OF LADING, THE DEDUCTION VOUCHER, THE REPORT OF SURVEY, WITH RELATED PAPERS, THE WAYBILL, AND THE CARRIER'S SHORTAGE REPORT ARE ENCLOSED. ACTION UPON THE CLAIM FOR THE EXCESS DEDUCTED BY THE DISBURSING OFFICER, ABOVE THE AMOUNT OF THE COMPROMISE OFFER, WILL BE HELD IN ABEYANCE, PENDING NOTICE OF THE ACCEPTANCE OF REJECTION OF THE OFFER.