B-122785, NOV. 21, 1955

B-122785, NOV. 21, 1955

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

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION A CLAIM OF THE TEXAS AND NEW ORLEANS RAILROAD COMPANY INVOLVING AN OFFICER OF COMPROMISE GROWING OUT OF A SHORTAGE IN DELIVERY OF PROPERTY TRANSPORTED. 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 $800, THE VALUE OF THE PROPERTY ALLEGED TO HAVE BEEN LOST, AND $5.67 UNEARNED FREIGHT CHARGES THEREON, MADE IN OCTOBER 1948 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 50 PERCENT OF THE AMOUNT DEDUCTED, OR $402.83.

THE ORIGINAL BILL OF LADING IS NOT INCLUDED IN THE FILE. THE MEMORANDUM COPY, HOWEVER, SHOWS THAT BILL OF LADING WW-609897 WAS ISSUED OCTOBER 27, 1947, BY THE TRANSPORTATION OFFICER, PHILADELPHIA QUARTERMASTER DEPOT, TO COVER A SHIPMENT OF 503 BALES OF CLOTHING (COTTON SHIRTS AND WOOL TROUSERS), FROM PHILADELPHIA, PENNSYLVANIA,TO SAN ANTONIO GENERAL DEPOT, SAN ANTONIO, TEXAS, VIA THE BALTIMORE AND OHIO RAILROAD TO BALTIMORE, THE NEXTEX STEAMSHIP CORPORATION TO HOUSTON, AND THE TEXAS AND NEW ORLEANS RAILROAD BEYOND. THE BACK OF THE MEMORANDUM BILL OF LADING BEARS A NOTATION, APPARENTLY COPIED FROM THE ORIGINAL BILL OF LADING, PURPORTING TO SHOW THAT THE RECEIVING OFFICER ACCEPTED DELIVERY OF ONLY 501 BALES OF CLOTHING, ONE BALE OF SHIRTS AND ONE BALE OF TROUSERS CHECKING SHORT AT DESTINATION. A REPORT OF SURVEY WAS APPROVED MAY 26, 1948, HOLDING THE CARRIER RESPONSIBLE FOR THE LOSS AND SHOWING THE VALUE OF THE MISSING SHIRTS AND TROUSERS AS $367.50 AND $432.50 RESPECTIVELY. FOLLOWING THE DEDUCTION IN OCTOBER 1948 OF $805.67 FROM THE CARRIER'S BILL NO. 64143 7, REPRESENTING THE VALUE OF THE MISSING ARTICLES AND $5.67 UNEARNED FREIGHT, BOTH THE CARRIER AND THE DEPARTMENT OF THE ARMY UNDERTOOK VERY THOROUGH INVESTIGATIONS. IN OCTOBER 1949, THE TEXAS AND NEW ORLEANS RAILROAD SUGGESTED THE 50 PERCENT COMPROMISE AND ON MARCH 11, 1954, THE SECOND TRANSPORTATION ZONE OFFICE RECOMMENDED "THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD BE SERVED BY ACCEPTING THE COMPROMISE OFFER.' PURSUANT TO THAT CONCLUSION, THE MATTER WAS REFERRED HERE BY THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY, BY LETTER OF APRIL 30, 1954, RECOMMENDING ACCEPTANCE OF THE OFFER. PHOTOSTATIC COPIES OF THE LETTER OF TRANSMITTAL, THE REPORT OF SURVEY WITH ATTACHED AFFIDAVITS, AND THE LETTER FROM THE SECOND TRANSPORTATION ZONE OFFICE AND DOCUMENTS REFERRED TO THEREIN, ARE ENCLOSED. WE HAVE NO INFORMATION ABOUT THE FACTS AND CIRCUMSTANCES SURROUNDING THE OCCURRENCE OF THE ALLEGED SHORTAGE OTHER THAN WHAT THE RECORD SHOWS. ON THE BASIS OF THAT RECORD, HOWEVER, WE FIND NO OCCASION TO DISAGREE WITH THE RECOMMENDATION OF THE DEPARTMENT OF THE ARMY FOR ACCEPTANCE OF THE OFFER.

THE OFFER OF COMPROMISE WAS NOT ACCOMPANIED BY A CHECK, DRAFT, OR MONEY ORDER FOR THE AMOUNT OF THE OFFER--- AS PROVIDED BY TREASURY DEPARTMENT CIRCULAR NO. 34 (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 COMPROMISE OFFER, WE WILL CERTIFY FOR PAYMENT TO THE CARRIER THE EXCESS DEDUCTED BY THE DISBURSING OFFICER BECAUSE 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 31 U.S.C. 71A.

ACTION UPON THE CARRIER'S CLAIM FOR THE EXCESS DEDUCTED BY THE DISBURSING OFFICER, ABOVE THE AMOUNT OF ITS COMPROMISE OFFER, WILL BE HELD IN ABEYANCE HERE PENDING NOTICE OF THE ACCEPTANCE OR REJECTION OF THE OFFER.