B-114472, AUG. 7, 1956

B-114472: Aug 7, 1956

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THE SETOFF WAS MADE TO RECOVER FOR DAMAGES TO RUBBER SHIPPED FROM PENANG. WAS TO ATTEST THAT THE COURTS HAVE SIMILARLY CONSTRUED THE STATUTE. WHICH WAS INVOLVED IN THE SON CASE. IS REQUIRED TO SETTLE AND ADJUST ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT. INCLUDING THOSE IN WHICH YOUR AGENCY IS INVOLVED. IT IS THE BURDEN OF ANY PERSON WHO PRESENTS A CLAIM TO OUR OFFICE TO ESTABLISH BY COMPETENT EVIDENCE THE LEGAL LIABILITY OF THE UNITED STATES. WE AGAIN POINT OUT THAT YOU HAVE PRESENTED NO COMPETENT EVIDENCE TO SUPPORT A MERE ALLEGATION THAT THE INSTANT DAMAGES WERE OF A PRESHIPMENT NATURE. WE HAVE CAREFULLY REEXAMINED THE ENTIRE MATTER.

B-114472, AUG. 7, 1956

TO FURNESS, WITHY AND CO. LTD.:

IN YOUR LETTER OF JULY 23, 1956, YOU REQUEST US TO CONSIDER FURTHER OUR DECISION OF MARCH 16, 1955, B-114472, WHICH SUSTAINED THE DEDUCTION OF $160 FROM PAYMENT OF YOUR BILL NO. 1117, AND OUR LETTERS DATED AUGUST 25, 1955, AND JULY 10, 1956, WHICH AFFIRMED THAT DECISION. THE SETOFF WAS MADE TO RECOVER FOR DAMAGES TO RUBBER SHIPPED FROM PENANG, BRITISH MALAYA, TO NEW YORK, NEW YORK, ABOARD THE "CINGALESE PRINCE" IN JUNE 1951.

AS WE POINTED OUT IN OUR LETTER OF JULY 10, 1956, WE REGARD THE PROVISIONS OF SUBSECTION 3 (6) OF THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1303 (6), AS BEING MERELY A TIME LIMITATION UPON THE BRINGING OF SUITS. OUR REFERENCE IN THAT LETTER TO THE CASES OF SON SHIPPING COMPANY V. DEFASSE AND TANGHE, 199 F.2D 687, AND UNITED STATES V. THE SOUTH STAR, 115 F.SUPP. 102, AFFIRMED 210 F.2D 44, WAS TO ATTEST THAT THE COURTS HAVE SIMILARLY CONSTRUED THE STATUTE. THUS, EVEN IF IT BE ASSUMED, ARGUENDO, THAT THE STATUTE MAY PRECLUDE THE UNITED STATES GOVERNMENT'S BRINGING SUITS AFTER ONE YEAR FROM THE DATE THE CAUSE OF ACTION ARISES, IT DOES NOT BAR RECOVERY BY OTHER APPROPRIATE MEANS, SUCH AS BY ARBITRATION, WHICH WAS INVOLVED IN THE SON CASE, SUPRA, OR BY SETOFF, AS IN THE INSTANT CASES.

YOU CONCEDE THE ACCURACY OF OUR VIEW THAT THE ACCEPTANCE OF GOODS IN APPARENT GOOD ORDER AND CONDITION AND THE DELIVERY OF SUCH GOODS IN A DAMAGED CONDITION RAISES A PRESUMPTION OF LIABILITY ON THE PART OF THE CARRIER. YOU URGE, HOWEVER, THAT THIS MUST BE DECIDED BY A COURT. ON THE CONTRARY, THE GENERAL ACCOUNTING OFFICE, UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT, 1921, 42 STAT. 24, 31 U.S.C. 71, IS REQUIRED TO SETTLE AND ADJUST ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT. MANIFESTLY, THIS REQUIRES US TO DETERMINE THE VALIDITY OF ANY CLAIM OR ACCOUNT PRESENTED, INCLUDING THOSE IN WHICH YOUR AGENCY IS INVOLVED; AND IT IS THE BURDEN OF ANY PERSON WHO PRESENTS A CLAIM TO OUR OFFICE TO ESTABLISH BY COMPETENT EVIDENCE THE LEGAL LIABILITY OF THE UNITED STATES. SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288; CHARLES V. UNITED STATES, 19 C.CLS. 316. WE AGAIN POINT OUT THAT YOU HAVE PRESENTED NO COMPETENT EVIDENCE TO SUPPORT A MERE ALLEGATION THAT THE INSTANT DAMAGES WERE OF A PRESHIPMENT NATURE.

WE HAVE CAREFULLY REEXAMINED THE ENTIRE MATTER, AND FIND NO BASIS FOR MODIFYING OUR PREVIOUS DECISIONS.

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