B-115417, B-108297, AUG. 25, 1961

B-115417, B-108297, AUG. 25, 1961

TO THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1961, FILE F 195046, REQUESTING REVIEW OF THE ACTION TAKEN ON YOUR SUPPLEMENTAL BILL NO. F- 159046-F FOR $1,727.88 ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE ON SHIPMENTS OF EXPLOSIVE BOMBS FROM ST. FRANCIS, TEXAS, STOPPED IN TRANSIT AT HUDSON, MASSACHUSETTS (MAYNARD BACK-UP DEPOT), AND REFORWARDED TO BOSTON, MASSACHUSETTS, DURING JULY AND AUGUST 1944, MOVING UNDER GOVERNMENT BILLS OF LADING WV-4484456, WV-4484694, WV 4484695, WV-4484696, WV-4484699, WV-4484700, WV-4484701, WV-4484702, WV 4484703, WV-4484704, WV -4484705, WV-4484708, WV-4484709, WV-4484710, WV-4484712 AND WV-4484713.

FOR THE SERVICES PERFORMED UNDER THESE BILLS OF LADING YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNT OF $43,041.18 ON YOUR BILL NO. F-159046, COMPUTED AT A RATE OF $2.68 PER 100 POUNDS (65 PERCENT OF FIRST CLASS), PLUS 3 1/3 CENTS PER 100 POUNDS TRANSIT CHARGE AT HUDSON, PLUS DEMURRAGE CHARGES. SUBSEQUENTLY, BY SUPPLEMENTAL BILLS NOS. F-15046- B AND F-159046-C YOU CLAIMED ADDITIONAL CHARGES OF $252.58 AND $297.48, RESPECTIVELY, BASED UPON THE $2.68 RATE AND AN INCREASE IN THE CHARGEABLE WEIGHT OF THE DUNNAGE FOR EACH SHIPMENT UNDER AUTHORITY OF A WESTERN WEIGHING AND INSPECTION BUREAU CORRECTION. BY CERTIFICATE OF SETTLEMENT NO. 391770 1/2, OUR CLAIM NO. TK-054959, DATED MAY 24, 1948, WE DISALLOWED THE ADDITIONAL $550.06 ($252.58 PLUS $297.48) CLAIMED AND ISSUED A NOTICE OF OVER-CHARGES IN THE AGGREGATE OF $1,338.65 AGAINST THE BILLS OF LADING IN QUESTION, WHICH AMOUNT WAS RECOVERED BY DEDUCTION FROM MONIES OTHERWISE DUE ON YOUR BILL NO. F-249294, IN JUNE 1950. THE OVERCHARGES WERE COMPUTED ON THE BASIS OF A COMBINATION OF RATES OF $2.92 PER 100 POUNDS (CLASS 75) TO MAYNARD, LESS APPLICABLE LAND-GRANT DEDUCTIONS, OR A NET RATE OF $2.41225 PER 100 POUNDS, AND 16 CENTS PER 100 POUNDS BEYOND MAYNARD, PLUS 3 1/2 CENTS PER 100 POUNDS TRANSIT CHARGE, AND THE DEMURRAGE CHARGES.

BY LETTER DATED AUGUST 9, 1951, YOU REQUESTED REVIEW OF THAT SETTLEMENT, URGING THAT THE COMBINATION RATE BASIS WAS NOT APPLICABLE BECAUSE THE 16- CENT FACTOR WAS LIMITED TO TRAFFIC WHICH MOVED TO HUDSON UNDER THE PROVISIONS OF ASSOCIATION OF AMERICAN RAILROADS RATE QUOTATION NO. 40-B. THIS REQUEST WAS THE SUBJECT OF OUR DECISION DATED APRIL 1, 1952, B- 108297, WHICH HELD THAT THE FREIGHT CHARGES PROPERLY FOR APPLICATION ON THESE SHIPMENTS WERE THOSE COMPUTED ON THE BASIS OF THE THROUGH COMMERCIAL RATE, LESS LAND-GRANT DEDUCTIONS, PLUS CHARGES FOR STOPPING AND RECONSIGNING PROVIDED IN BOSTON AND MAINE RAILROAD LOCAL TARIFF, I.C.C. NO. A3069, AND YOU WERE ADVISED THAT ON SUCH BASIS ADDITIONAL OVERCHARGES EXISTED AGAINST THE BILLS OF LADING IN QUESTION IN THE AMOUNT OF $1,817.52. UPON YOUR FAILURE TO REMIT THIS ADDITIONAL OVERCHARGE, THE AMOUNT OF $1,817.52 WAS RECOVERED BY DEDUCTION IN JULY 1952 FROM MONIES OTHERWISE DUE YOU ON YOUR BILL NO. F-258207, UNDER AUTHORITY OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66. PURSUANT TO YOUR SUBSEQUENT REQUEST FOR FURTHER CONSIDERATION OF THE MATTER, THE CONCLUSION REACHED IN THE DECISION OF APRIL 1, 1952, WAS AFFIRMED ON OCTOBER 22, 1952.

THEREAFTER, YOU FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS TO RECOVER THE AMOUNT OF $1,817.52--- DEDUCTED FROM YOUR BILL F-258207 IN JULY 1952--- IN THE CASE OF NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY V. UNITED STATES, CIVIL ACTION NO. 53-557-S. ON APRIL 4, 1960, THE DEPARTMENT OF JUSTICE ADVISED US THAT SINCE ADMINISTRATIVE SETTLEMENT IN THAT CASE HAD BEEN CONCLUDED BETWEEN REPRESENTATIVES OF OUR OFFICE AND THE PLAINTIFF, CIVIL ACTION NO. 53-557'S WAS DISMISSED ON MARCH 28, 1960, FOLLOWING THE FILING OF PLAINTIFF'S MOTION TO DISMISS WHICH HAD BEEN HELD IN ESCROW BY THE UNITED STATES ATTORNEY IN BOSTON PENDING SUCH SETTLEMENT EFFORTS, AND THAT THE DEPARTMENT OF JUSTICE HAD CLOSED ITS FILE IN THAT CASE. PREVIOUSLY, ON JUNE 29, 1959, YOUR REPRESENTATIVE, MR. E. GENUNG, AND REPRESENTATIVES OF OUR TRANSPORTATION DIVISION SURVEYED THIS CLAIM, AND OTHERS WHICH YOU HAD PLACED IN OTHER SUITS, TO DETERMINE WHAT SETTLEMENT WOULD SATISFY YOU AS PLAINTIFF, IN ORDER THAT THE SUITS COULD BE DISMISSED, AND THE RECORD SHOWS THAT AT THE TIME THIS CLAIM WAS SURVEYED IT WAS MUTUALLY AGREED THAT PAYMENT OF $1,817.52--- THE EXACT AMOUNT PRAYED FOR IN THE SUIT--- WOULD FULLY SATISFY THIS CLAIM. ACCORDINGLY, MR. GENUNG, FOR RECORD PURPOSES, EXECUTED A "FORM BILL" IN THE AMOUNT OF $1,817.52 AND PAYMENT IN SUCH AGREED AMOUNT WAS MADE BY OUR CERTIFICATE OF SETTLEMENT, CLAIM TK 054959, DATED JULY 2, 1959. YOUR LETTER OF JUNE 17, 1959, FILE A 2025 59, TO OUR TRANSPORTATION DIVISION CONFIRMS YOUR ACQUIESCENCE IN THIS DISPOSITION OF THE CASE.

NOTWITHSTANDING THE ADMINISTRATIVE SETTLEMENT OF BILL NO. F-159046 AND SUPPLEMENTS THERETO IN CIVIL ACTION NO. 53-557-S, YOU THEREAFTER SUBMITTED YOUR SUPPLEMENTAL BILL NO. F-159046-D, DATED NOVEMBER 27, 1959, CLAIMING ADDITIONAL FREIGHT CHARGES OF $5,403.83 ON THE SHIPMENTS MOVING ON THE BILLS OF LADING IN QUESTION. THIS BILL WAS CANCELLED BY YOUR SUPPLEMENTAL BILL NO. F-159046-E, DATED DECEMBER 11, 1959, IN THE AMOUNT OF $3,586.31, WHICH IN TURN WAS CANCELLED BY YOUR SUPPLEMENTAL BILL NO. F-159046-F, DATED MAY 24, 1960, IN THE AMOUNT OF $1,727.88, WHICH IS THE BILL NOW UNDER CONSIDERATION.

BY LETTERS DATED OCTOBER 19, 1960, AND APRIL 28, 1961, YOU WERE ADVISED THAT THE SATISFACTORY ADMINISTRATIVE SETTLEMENT OF YOUR BILL F 159046 WAS A CONDITION PRECEDENT TO THE DISMISSAL OF CIVIL ACTION NO. 53-557'S AND THAT THEREFORE NO FURTHER PAYMENT IS JUSTIFIED, JUST AS THE GOVERNMENT IN TURN WOULD NOT BE JUSTIFIED IN REAUDITING ANY CLAIM SO SETTLED WITH A VIEW TO RECLAIMING ANY PORTION OF THE AMOUNT PAID AFTER THE SUIT WAS DISMISSED IN CONSIDERATION OF SUCH PAYMENT.

RESPECTING YOUR ASSERTION THAT AT THE TIME THE CLAIM INVOLVED IN CIVIL ACTION NO. 53-557'S WAS SURVEYED, YOUR REPRESENTATIVE WAS INFORMED THAT IT WOULD BE PERMISSIBLE TO ACCEPT THE ADMINISTRATIVE SETTLEMENT AND HAVE THE CASE DISMISSED, AFTER WHICH YOU COULD ISSUE A SUPPLEMENTAL BILL FOR ADDITIONAL CHARGES, YOU ARE ADVISED THAT OUR TRANSPORTATION DIVISION REPORTS THAT THERE IS NOTHING OF RECORD WHICH PROVIDES A BASIS FOR SUCH ASSERTION.

YOU ELECTED TO PLACE THE QUESTION OF THE PROPER FREIGHT CHARGES FOR THE SHIPMENTS UNDER THE BILLS OF LADING IN QUESTION IN LITIGATION BY FILING YOUR SUIT AGAINST THE UNITED STATES, THEREBY TAKING THE MATTER OUT OF THE USUAL AUDIT CHANNELS OF THE GENERAL ACCOUNTING OFFICE AND PLACING IT UNDER THE JURISDICTION OF THE DEPARTMENT OF JUSTICE. SINCE THE DEPARTMENT OF JUSTICE CONSIDERS OUR ADMINISTRATIVE SETTLEMENT OF JULY 2, 1959, AS FINAL SETTLEMENT ACTION AND CONSIDERS THE MATTER CLOSED, WE WOULD NOT BE JUSTIFIED IN CONSIDERING A CLAIM FOR ANY ADDITIONAL FREIGHT CHARGES ON THE SHIPMENTS INVOLVED.

ACCORDINGLY, THERE IS NO BASIS UPON WHICH WE MAY GIVE CONSIDERATION TO YOUR SUPPLEMENTAL BILL ..END :