B-77776, APR. 30, 1958

B-77776, APR. 30, 1958

TO ERIE RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1957, FILE 77-5155 12-46, RELATIVE TO THE DISALLOWANCE OF YOUR CLAIM FOR $5,490.46, COVERING THE TRANSPORTATION OF, AND DEMURRAGE ON, FOUR CARLOADS OF FORMALDEHYDE FROM GARFIELD, NEW JERSEY, TO GALVESTON, TEXAS, AND RETURN TO GARFIELD, NEW JERSEY, IN 1944.

YOUR CLAIM FOR THESE CHARGES IS SUPPORTED CHIEFLY BY UNCERTIFIED COPIES OF CORRESPONDENCE. THIS RECORD INDICATES THAT THE FORMALDEHYDE WAS SHIPPED ON GOVERNMENT BILLS OF LADING ISSUED ADMINISTRATIVELY BY THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, AT NEW YORK, NEW YORK, SHOWING THE HEYDEN CHEMICAL CORPORATION, GARFIELD, NEW JERSEY, AS SHIPPER, AND THE WAR SHIPPING ADMINISTRATION, AS PRINCIPAL FOR ACCOUNT OF THE BRITISH MINISTRY OF WAR TRANSPORT, GALVESTON, TEXAS, AS CONSIGNEE, WITH INSTRUCTIONS TO SEND ARRIVAL NOTICES TO WEST GULF FORWARDERS, INC., GALVESTON, AND W. H. RANDALL, TREASURY DEPARTMENT, PROCUREMENT DIVISION, FORT WORTH, TEXAS. ON JUNE 22, 1944, W. H. RANDALL INFORMED THE PROCUREMENT DIVISION, WASHINGTON, D.C., THAT DUE TO SEVERAL APPARENT "LEAKERS" IN ONE OF THE CARS, AND TO OBNOXIOUS ODORS IN OTHER CARS, THE VESSEL VIA WHICH THE SHIPMENT WAS TO BE EXPORTED HAD REFUSED TO ACCEPT THE SHIPMENTS, AND THAT THE GALVESTON WHARVES--- DESCRIBED AS BEING THE UNLOADING CONTRACTORS FOR THE TEXAS AND NEW ORLEANS RAILROAD, THE DELIVERING CARRIER IN GALVESTON--- HAD REFUSED FOR THE SAME REASONS TO PERMIT UNLOADING ON THE DOCKS, IN THE ABSENCE OF A STATEMENT FROM THE STEAMSHIP AGENCY THAT THE SHIPMENT HAD BEEN DEFINITELY SCHEDULED FOR ANOTHER BOAT, AND THAT ALL GOOD BARRELS WOULD BE LOADED ABOARD THE SHIP PROMPTLY AFTER UNLOADING FROM THE CARS. EFFORT WAS MADE TO DISPOSE OF THE FORMALDEHYDE BY SALE LOCALLY AT GALVESTON, BUT BEFORE SALE WAS ACCOMPLISHED THE OFFICE OF DEFENSE TRANSPORTATION, IN ORDER TO SECURE RELEASE OF THE CARS FOR USE IN OTHER TRANSPORTATION SERVICE, DIRECTED THE TEXAS AND NEW ORLEANS RAILROAD COMPANY, BY SUPPLEMENTARY ORDER 12A-W.R.-1- H, DATED JULY 3, 1944, TO TRANSPORT THE CARS, OR CAUSE THEM TO BE TRANSPORTED TO THE PLANT OF THE HEYDEN CHEMICAL CORPORATION, GARFIELD, NEW JERSEY.

THE INSPECTION REPORTS IN THE RECORD DESCRIBE THE DAMAGE AS "LEAKAGE DUE TO CRUSHING CAUSING CONTAINER FAILURE * * * STAVES CRACKED, BILGE PUSHED IN," APPARENTLY CAUSED BY "EXCESS HUMPING OF CARS.' BY LETTER DATED JULY 24, 1944, THE WAR FORWARDING CORPORATION, NEW YORK, NEW YORK, APPARENTLY ACTING FOR THE BRITISH MINISTRY OF WAR TRANSPORT, NOTIFIED THE TREASURY DEPARTMENT, PROCUREMENT DIVISION, AT ITS NEW YORK OFFICE, THAT AN ATTACHED COPY OF LETTER WOULD BE PROCUREMENT'S AUTHORITY TO OBTAIN THE CARLOAD SHIPMENTS "CONSIGNED TO THE WAR SHIPPING ADMINISTRATION FOR THE ACCOUNT OF THE BRITISH MINISTRY OF WAR TRANSPORT AND HEYDEN CHEMICAL COMPANY.' THE SAME DATE, THE CHIEF OF THE INSPECTION SECTION, PROCUREMENT DIVISION, TRANSMITTED TO THE ERIE RAILROAD COMPANY, PASSAIC, NEW JERSEY, A COPY OF SAID LETTER OF JULY 24, 1944, TAKING CARE, HOWEVER, IN THAT CONNECTION, TO STATE THAT "THE U.S. TREASURY DEPARTMENT, PROCUREMENT DIVISION, WILL NOT TAKE ANY RESPONSIBILITY FOR ANY DAMAGE WHICH HAS OCCURRED TO THE CONTENTS OF THESE CARS, SINCE SHIPMENT FROM THE HEDEN CHEMICAL CO., NOR FOR THE FREIGHT CHARGES OF DEMURRAGE CHARGES WHICH HAVE ACCRUED AGAINST THESE CARS.'

THE RECORD INCLUDES WHAT APPEAR TO BE COPIES OF ERIE RAILROAD CASHIER'S MEMORANDUM FORMS, DATED JULY 13, 1944, FOR TWO OF THE CARS, AND FREIGHT BILL FORMS, DATED JULY 15, 1944, FOR THE OTHER CARS. ALL SHOW THE CONSIGNEE AS WAR SHIPPING ADMINISTRATION AS PRINCIPAL FOR ACCOUNT OF BRITISH MINISTRY OF WAR TRANSPORT, CARE OF HEYDEN CHEMICAL CORPORATION. IN ADDITION, THERE ARE CARBON COPIES OF BILLS FOR DEMURRAGE, PREPARED ON ERIE RAILROAD FORMS BUT PURPORTING TO HAVE BEEN ISSUED AT GALVESTON, TEXAS, BY D. R. SWOM, DISTRICT DEMURRAGE MANAGER, FOR TEXAS AND NEW ORLEANS RAILROAD COMPANY, ONE DATED JUNE 6, 1944, FOR CAR SP-35070, AND THREE OTHERS DATED JULY 6, 1945, COVERING THE OTHER CARS, ALL ADDRESSED TO THE WAR SHIPPING ADMINISTRATOR AS PRINCIPAL, A/C BRITISH MINISTRY OF WAR TRANSPORT, CARE OF WEST GULF FORWARDERS. THUS THE PRESENT RECORD INDICATES THAT THESE SHIPMENTS WERE MADE FOR ACCOUNT, AND UNDER THE CONTROL OF, THE BRITISH MINISTRY OF WAR TRANSPORT.

THE PRESENT RECORD SHOWS THAT BUT FOR THE DAMAGE IN TRANSIT TO THESE SHIPMENTS, AND THE RESULTANT LEAKAGE, THIS SHIPMENT WOULD HAVE BEEN ACCEPTED BY THE STEAMER ON WHICH IT WAS BOOKED FOR TRANSPORTATION. FOR THE SAME REASON, THE UNLOADING CONTRACTORS FOR THE DESTINATION CARRIER WOULD NOT ALLOW ITS UNLOADING. CLEARLY, THE FAILURE OF THE STEAMER TO ACCEPT THIS SHIPMENT WAS NOT DUE TO ANY FAULT OR NEGLECT OF THE UNITED STATES.

THE BURDEN IS UPON CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES FOR THE AMOUNT CLAIMED. THE COPIES OF DOCUMENTS SUBMITTED WITH THIS CLAIM DO NOT CLEARLY AND SATISFACTORILY ESTABLISH THE LEGAL LIABILITY OF THE UNITED STATES FOR THE AMOUNT CLAIMED BY YOU. ACCORDINGLY, THE DISALLOWANCE OF ..END :