B-134567, APR. 11, 1958

B-134567: Apr 11, 1958

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TO THE ILLINOIS CENTRAL RAILROAD: REFERENCE IS MADE TO YOUR LETTERS WRITTEN UNDER FILE 22882-5 IN WHICH YOU REQUEST CANCELLATION OF THE DEBT ASSESSED AGAINST YOU BY THE UNITED STATES IN THE AMOUNT OF $6. THE RECORD AVAILABLE HERE SHOWS THAT THE SHIPMENT INVOLVED CONSISTED OF SIX CRANES WHICH WERE LOADED IN SIX FLAT CARS BY EMPLOYEES AT THE GRANITE CITY ARMY ENGINEER'S DEPOT. WHERE THEY WERE DELIVERED TO THE ILLINOIS CENTRAL RAILROAD COMPANY. TWO SUITS WERE FILED UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT. THE TWO SUITS WERE CONSOLIDATED AND JUDGMENTS WERE AWARDED THE PLAINTIFFS IN ANDERSON V. IT HAS BEEN HELD THAT COMMON CARRIERS OWE A CONTRACTUAL DUTY TO THE SHIPPER TO CARRY GOODS SAFELY AND ARE NOT RELIEVED FROM SUCH DUTY BY NEGLIGENT LOADING OF THE SHIPPER.

B-134567, APR. 11, 1958

TO THE ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR LETTERS WRITTEN UNDER FILE 22882-5 IN WHICH YOU REQUEST CANCELLATION OF THE DEBT ASSESSED AGAINST YOU BY THE UNITED STATES IN THE AMOUNT OF $6,517.39, REPRESENTING THE AMOUNT ADMINISTRATIVELY DETERMINED AS THE VALUE OF DAMAGE TO GOVERNMENT PROPERTY TRANSPORTED UNDER BILL OF LADING NO. WW-5,609,916, DATED AUGUST 13, 1951. THIS BILL OF LADING COVERED CARS CONTAINING CRANES AND PARTS SHIPPED BY THE GRANITE CITY ENGINEER DEPOT, GRANITE CITY, ILLINOIS, CONSIGNED TO THE NEW ORLEANS PORT OF EMBARKATION, NEW ORLEANS, LOUISIANA.

THE RECORD AVAILABLE HERE SHOWS THAT THE SHIPMENT INVOLVED CONSISTED OF SIX CRANES WHICH WERE LOADED IN SIX FLAT CARS BY EMPLOYEES AT THE GRANITE CITY ARMY ENGINEER'S DEPOT; THAT THE TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS TRANSPORTED THE CARS FROM GRANITE CITY, ILLINOIS, TO EAST ST. LOUIS, ILLINOIS, WHERE THEY WERE DELIVERED TO THE ILLINOIS CENTRAL RAILROAD COMPANY; AND THAT THE DAMAGE TO THE GOVERNMENT PROPERTY OCCURRED IN A COLLISION AT OR NEAR CLINTON, KENTUCKY, ON AUGUST 16, 1951, WHILE ON THE RAILS OF THE ILLINOIS CENTRAL RAILROAD. THIS COLLISION RESULTED IN THE DEATH OF THE ENGINEER AND INJURY TO THE FIREMAN ON ONE OF THE ENGINES INVOLVED IN THE ACCIDENT AND, BY REASON OF SUCH DEATH AND PERSONAL INJURY, TWO SUITS WERE FILED UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 1346 (B), IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY. THE TWO SUITS WERE CONSOLIDATED AND JUDGMENTS WERE AWARDED THE PLAINTIFFS IN ANDERSON V. UNITED STATES (ILLINOIS CENTRAL RAILROAD COMPANY, THIRD-PARTY DEFENDANT) AND MARSHALL V. UNITED STATES (ILLINOIS CENTRAL RAILROAD COMPANY, THIRD-PARTY DEFENDANT), 118 F.SUPP. 498. IN AWARDING THE JUDGMENTS THE COURT CONCLUDED (AT PAGE 504) THAT---

"THE NEGLIGENCE OF THE EMPLOYEES OF THE UNITED STATES AT THE ARMY DEPOT AT GRANITE CITY, ILLINOIS, * * * AND THE NEGLIGENCE OF THE ILLINOIS CENTRAL RAILROAD COMPANY IN RECEIVING FOR TRANSPORTATION AND IN TRANSPORTING SAID CAR WITHOUT HAVING FIRST ASCERTAINED THAT THE ROTATING CAB HAD BEEN SECURELY LOCKED CONCURRED TO BRING ABOUT AND CONSTITUTE THE DIRECT AND PROXIMATE CAUSE OF THE COLLISION * * *.'

YOU TAKE THE POSITION THAT ANY CONTRIBUTORY NEGLIGENCE OF EMPLOYEES OF THE UNITED STATES IN LOADING THE PROPERTY INVOLVED WOULD BE A COMPLETE BAR TO RECOVERY FOR DAMAGE TO THE SHIPMENT, AND YOU CITE A NUMBER OF PERSONAL INJURY CASES AS AUTHORITY FOR YOUR POSITION. HOWEVER, IT HAS BEEN HELD THAT COMMON CARRIERS OWE A CONTRACTUAL DUTY TO THE SHIPPER TO CARRY GOODS SAFELY AND ARE NOT RELIEVED FROM SUCH DUTY BY NEGLIGENT LOADING OF THE SHIPPER. UNITED STATES V. SAVAGE TRUCK LINE, INC., 209 F.2D 442, 447, CERTIORARI DENIED, 74 S.CT. 677.

THE PROPERTY WHICH WAS DAMAGED IN THIS INSTANCE WAS LOADED ON A FLAT CAR AND WAS PASSED FOR INSPECTION BY YOUR AGENTS WITHOUT ASCERTAINING WHETHER THE PROPERTY HAD BEEN LOADED IN ACCORDANCE WITH THE RULES OF THE ASSOCIATION OF AMERICAN RAILROADS. THE DEPARTMENT OF THE ARMY HAS REPEATEDLY REQUESTED THAT YOU SUBMIT YOUR RECORDS PERTAINING TO THE INVESTIGATION CONDUCTED ON THIS COLLISION IN ORDER THAT THEY MAY UNDERSTAND THE REASON YOU CONTEND THAT YOU SHOULD NOT BE HELD LIABLE FOR THE DAMAGE. IN VIEW OF YOUR REFUSAL TO SUBMIT SUCH RECORDS, AND THE FINDING OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY (118 F.SUPP. 498) THAT YOU WERE GUILTY OF CONTRIBUTORY NEGLIGENCE IN THE MATTER, WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT YOU ARE LEGALLY LIABLE FOR DAMAGE TO THE GOVERNMENT PROPERTY INVOLVED IN THE AMOUNT OF $6,517.39.

IN REGARD TO YOUR STATEMENT THAT THE GOVERNMENT UNDULY DELAYED NOTIFYING YOU OF THE DAMAGE TO THE SHIPMENT, THAT FACT OBVIOUSLY COULD HAVE NO EFFECT ON YOUR OBLIGATION TO THE GOVERNMENT AND COULD AFFORD NO LEGAL BASIS FOR RELIEVING YOU OF YOUR LIABILITY FOR THE AMOUNT OF THE DAMAGE, PARTICULARLY SINCE THE COLLISION WHICH CAUSED THE DAMAGE OCCURRED ON YOUR RAILS AND YOU CONDUCTED YOUR OWN INVESTIGATION REGARDING THE DAMAGE. THE RULE IS WELL ESTABLISHED THAT NEITHER LACHES NOR PERIODS OF LIMITATION APPLY AGAINST THE GOVERNMENT IN THE ABSENCE OF A CLEAR EXPRESSION OF CONGRESSIONAL INTENT TO THE CONTRARY. SEE UNITED STATES V. WHITED AND WHELESS, 246 U.S. 552, STANLEY V. SCHWALBY, 147 U.S. 508, 514 ET SEQ., MISSOURI-KANSAS-TEXAS RAILROAD CO. OF TEXAS V. UNITED STATES, 62 C.CLS. 373.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE ACTION OF THE DEPARTMENT OF THE ARMY IN DETERMINING THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $6,517.39, AND ITS ACTION IN COLLECTING THE SAME BY SETOFF, ARE SUSTAINED.