B-134253, APR. 25, 1958

B-134253: Apr 25, 1958

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TO THE CENTRAL OF GEORGIA RAILWAY COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 23. WHERE IT WAS STORED IN TRANSIT. THE DRIED BEANS WERE LEND-LEASE PROPERTY PROCURED UNDER LEND-LEASE REQUISITION NO. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE PROPERTY WAS MOVING FOR 100 PERCENT MILITARY USE. SETTLEMENT WILL BE MADE IN YOUR FAVOR AS CLAIMED ON SUPPLEMENTAL BILL NO. THE TIRES WERE LEND-LEASE PROPERTY PROCURED UNDER LEND-LEASE REQUISITION NO. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE PROPERTY WAS MOVING FOR 100 PERCENT MILITARY USE. THIS CLAIM WAS ALSO DISALLOWED SINCE THERE WAS NO SUPPORT FOR A PARTIAL CIVIL CHARACTERIZATION OF THE PROPERTY INVOLVED AND SINCE WE HAVE NOT AUTHORITY TO EFFECT A COMPROMISE SETTLEMENT IN THE MATTER.

B-134253, APR. 25, 1958

TO THE CENTRAL OF GEORGIA RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 23, 1957, FILE NOS. N 4126-G -A AND N-30345-G-A, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATES ON YOUR SUPPLEMENTAL BILLS NOS. N-5-4126-B-G-R-1012-11 AND 30345-A.

ON YOUR SUPPLEMENTAL BILL NO. N-5-4126-B-G-R-1012-11, YOU CLAIMED $30.20 ADDITIONAL FREIGHT CHARGES FOR A SHIPMENT OF DRY BEANS THAT MOVED FROM POWELL, WYOMING, TO KANSAS CITY, MISSOURI, WHERE IT WAS STORED IN TRANSIT, THEN RESHIPPED TO SAVANNAH, GEORGIA, UNDER BILL OF LADING NO. A 2-627416. THE DRIED BEANS WERE LEND-LEASE PROPERTY PROCURED UNDER LEND-LEASE REQUISITION NO. UK-2901. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE PROPERTY WAS MOVING FOR 100 PERCENT MILITARY USE. HOWEVER, THE RECORD NOW ESTABLISHES THAT SOME OF THE DRIED BEANS INVOLVED REPRESENTED PROPERTY MOVING PARTIALLY FOR CIVIL USE AND, CONSISTENT WITH THAT VIEW, SETTLEMENT WILL BE MADE IN YOUR FAVOR AS CLAIMED ON SUPPLEMENTAL BILL NO. N-5-4126-B- G-R-1012-11.

ON YOUR SUPPLEMENTAL BILL NO. 30345-A, YOU CLAIMED $111.20 ADDITIONAL FREIGHT CHARGES ON FOUR SHIPMENTS OF TIRES FROM GADSDEN, ALABAMA, TO SAVANNAH, GEORGIA, IN JUNE 1944. THE TIRES WERE LEND-LEASE PROPERTY PROCURED UNDER LEND-LEASE REQUISITION NO. UK-20848. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE PROPERTY WAS MOVING FOR 100 PERCENT MILITARY USE. YOU SUBSEQUENTLY CLAIMED PER SUPPLEMENTAL BILL NO. 30345-B- G-R-1038-2 THE AMOUNT OF $55.60--- 50 PERCENT OF YOUR PREVIOUS CLAIM--- ON THE BASIS OF THE STIPULATION OF FACTS FILED IN ATLANTIC COAST LINE RAILROAD CO. V. UNITED STATES, COURT OF CLAIMS NO. 48826. THIS CLAIM WAS ALSO DISALLOWED SINCE THERE WAS NO SUPPORT FOR A PARTIAL CIVIL CHARACTERIZATION OF THE PROPERTY INVOLVED AND SINCE WE HAVE NOT AUTHORITY TO EFFECT A COMPROMISE SETTLEMENT IN THE MATTER. IN YOUR REQUEST FOR REVIEW YOU SEEM TO TAKE THE POSITION THAT, SINCE IN THE LATTER DISALLOWANCE, WE DID NOT SPECIFICALLY DISPUTE THE CORRECTNESS OF YOUR BILL, YOUR CLAIM SHOULD BE ALLOWED ON THE PREMISE THAT A PORTION OF THE SHIPMENT WAS MOVING FOR A CIVIL USE.

THE SUPPLIES PROCURED UNDER REQUISITION UK-20848 WERE INTENDED FOR USE BY "ARMY, NAVY, AIR AND M.O.W.T.' THE FACT THAT THE SHIPMENTS WERE MOVING FOR USE BY THE ARMED FORCES AND APPARENTLY THE MINISTRY OF WAR TRANSPORT (M.O.W.T.) REASONABLY ESTABLISHES THAT THEY CONSISTED WHOLLY OF MILITARY PROPERTY MOVING FOR MILITARY USE WITHIN THE PURVIEW OF SECTION 321/A) OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 898, 954.

OUR VIEWS IN THIS CLASS OF CLAIMS ARE SET OUT IN OUR DECISION B 132866, B -132772, DATED DECEMBER 2, 1957 (COPY ENCLOSED FOR YOUR READY REFERENCE) INVOLVING SHIPMENTS OF LEND-LEASE PROPERTY PROCURED UNDER SIMILAR REQUISITIONS. UNDER THE CIRCUMSTANCES, THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL NO. 30345-A IS SUSTAINED.

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