B-123928, MAR. 19, 1956

B-123928: Mar 19, 1956

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DEPARTMENT OF THE TREASURY: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION A CLAIM BY THE TEXAS AND NEW ORLEANS RAILROAD COMPANY INVOLVING AN OFFER IN COMPROMISE GROWING OUT OF A SHORTAGE IN DELIVERY. THE FOLLOWING REPORT OF THE FACTS IS PRESENTED TO YOU FOR FORWARDING. THE VALUE OF THE PROPERTY ALLEGED TO HAVE BEEN LOST. WAS NOT JUSTIFIED. WV-7337380 WAS ISSUED OCTOBER 16. A REPORT OF SURVEY WAS APPROVED FEBRUARY 20. THE CARRIERS ARE CONTENDING THAT THE SHIPMENT WAS LOADED AT THE PRIVATE SIDING OF THE RICHMOND GENERAL DEPOT IN CAR NO. AS FOLLOWS: "THIS IS TO CERTIFY THAT ACCORDING TO OUR RECORDS. THERE ARE TRANSMITTED HEREWITH PHOTOSTATIC COPIES OF THE PERTINENT RECORDS. WE HAVE NO INFORMATION AS TO THE FACTS AND CIRCUMSTANCES RESPECTING THE ALLEGED SHORTAGE OTHER THAN WHAT THE RECORD SHOWS.

B-123928, MAR. 19, 1956

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

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION A CLAIM BY THE TEXAS AND NEW ORLEANS RAILROAD COMPANY INVOLVING AN OFFER IN COMPROMISE GROWING OUT OF A SHORTAGE IN DELIVERY. 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.

THE TEXAS AND NEW ORLEANS RAILROAD COMPANY CONTENDS THAT A DEDUCTION OF $157.20, THE VALUE OF THE PROPERTY ALLEGED TO HAVE BEEN LOST, AND THE SUM OF $3.32 AS UNEARNED FREIGHT CHARGES, MADE UNDER DATE OF MARCH 24, 1947, BY A DEPARTMENT OF THE ARMY DISBURSING OFFICER, WAS NOT JUSTIFIED, AND HAS ASKED FOR AN ADJUSTMENT OF ITS LIABILITY ON THE BASIS OF A REFUND TO IT OF FITY PERCENT OF THE AMOUNT DEDUCTED, OR $80.26.

THE RECORD SHOWS THAT BILL OF LADING NO. WV-7337380 WAS ISSUED OCTOBER 16, 1946, BY THE TRANSPORTATION OFFICER, RICHMOND GENERAL DEPOT, U.S. ARMY, TO COVER A SHIPMENT OF TWO BALES OF JACKETS AND FOUR BALES OF OVERCOATS FROM THE RICHMOND GENERAL DEPOT, BELLBLUFF, VIRGINIA, TO FORT SAM HOUSTON, TEXAS, VIA THE ATLANTIC COAST LINE RAILROAD COMPANY--- THE TEXAS AND NEW ORLEANS RAILROAD COMPANY BEING THE DELIVERING CARRIER. THE BACK OF THE BILL OF LADING BEARS A NOTATION SHOWING THAT THE SHIPMENT WHEN RECEIVED AT DESTINATION CHECKED SHORT ONE BALE OF JACKETS HAVING A VALUE OF $157.20. A REPORT OF SURVEY WAS APPROVED FEBRUARY 20, 1947, HOLDING THE CARRIER RESPONSIBLE FOR THE LOSS AND SHOWING THE VALUE OF THE MISSING JACKETS AT $157.20.

WHEN SIGNED BY THE ATLANTIC COAST LINE RAILROAD COMPANY ON OCTOBER 16, 1946, THE BILL OF LADING BORE THE STATEMENT "SHIPPERS LOAD AND COUNT" BUT DID NOT INDICATE A CAR NUMBER. THE CARRIERS ARE CONTENDING THAT THE SHIPMENT WAS LOADED AT THE PRIVATE SIDING OF THE RICHMOND GENERAL DEPOT IN CAR NO. C AND NW 77372, IN TRAP CAR SERVICE, AND WENT FORWARD UNDER SHIPPER'S SEALS NOS. RASFD 177103 AND 177104 TO BREAK BULK AT RICHMOND ON THE ATLANTIC COAST LINE. TO SUPPORT THE CARRIER'S OUTTURN CHECK AT RICHMOND, THE ATLANTIC COAST LINE HAS SUPPLIED AN AFFIDAVIT READING, IN PART, AS FOLLOWS:

"THIS IS TO CERTIFY THAT ACCORDING TO OUR RECORDS, BELL BLUFF, VA. TO SAN ANTONIO, TEXAS, WAYBILL 12822 OCTOBER 16, 1946, CONSISTING OF SIX BALES OF CLOTHING CHECKED SHORT UNDER GOVERNMENT SEALS RASFD 177103 AND 177104 ON OCTOBER 10, 1946, FROM C AND NW CAR 77372.

"BALANCE OF SHIPMENT FORWARDED IN B AND O 177144 OCTOBER 19, 1946 UNDER RICHMOND SEALS K-437105 AND K-437175 TO BREAK BULK AT AUGUSTA, GA.'

IN LETTER DATED MAY 5, 1954, THE TEXAS AND NEW ORLEANS RAILROAD COMPANY SUGGESTED SETTLEMENT OF THE MATTER BY PAYMENT TO IT OF THE SUM OF $80.26. UNDER DATE OF OCTOBER 28, 1954, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REFERRED THE MATTER TO THIS OFFICE FOR "REVIEW AND DECISION.' THERE ARE TRANSMITTED HEREWITH PHOTOSTATIC COPIES OF THE PERTINENT RECORDS. WE HAVE NO INFORMATION AS TO THE FACTS AND CIRCUMSTANCES RESPECTING THE ALLEGED SHORTAGE OTHER THAN WHAT THE RECORD SHOWS. ON THE BASIS OF SUCH RECORD, WE RECOMMEND THE ACCEPTANCE OF THE OFFER IN COMPROMISE.

THE OFFER IN 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 OTHERWISE DUE THE CARRIER IN TWICE THE AMOUNT OF THE OFFER. IF THE SECRETARY OF THE TREASURY DECIDES TO ACCEPT THE CARRIER'S OFFER, WE WILL CERTIFY FOR PAYMENT TO THE CARRIER THE EXCESS DEDUCTED BY THE DISBURSING OFFICER ON ACCOUNT OF THE REPORTED SHORTAGE. ALTHOUGH THE CARRIER'S 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 30 U.S.C. 71A.

ACTION UPON THE CARRIER'S 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 OR REJECTION OF THE OFFER.