B-125278, B-125520, JAN. 7, 1957

B-125278, B-125520, JAN. 7, 1957

TO NORFOLK AND WESTERN RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1956, FILES NOS. 987073, 341225, 579925, CONCERNING YOUR CLAIM FOR $2,698.05, OR 75 PERCENT OF THE TOTAL AMOUNT OF $3,597.40 ADMINISTRATIVELY DEDUCTED TO REIMBURSE THE GOVERNMENT FOR UNEARNED FREIGHT AND THE VALUE OF A QUANTITY OF AIRPLANE LANDING MATS REPORTED TO HAVE BEEN LOST WHILE BEING TRANSPORTED VIA THE BALTIMORE AND OHIO RAILROAD COMPANY AND THE NORFOLK AND WESTERN RAILWAY COMPANY FROM CUMBO, WEST VIRGINIA, TO NORFOLK, VIRGINIA, UNDER GOVERNMENT BILLS OF LADING NOS. WT-8389805, WT-1137502, AND WT-1137221 DURING 1943 AND 1944.

THE INVOLVED BILLS OF LADING INDICATE THAT THE SHIPMENTS WERE RECEIVED BY THE AGENT OF THE BALTIMORE AND OHIO RAILROAD COMPANY AT CUMBO IN APPARENT GOOD ORDER AND CONDITION. THE SHIPMENTS MOVED TO NORFOLK, AT WHICH POINT DELIVERY WAS EFFECTED BY THE NORFOLK AND WESTERN RAILWAY COMPANY. THE BACKS OF THE THREE BILLS OF LADING WERE NOTED BY THE CONSIGNEE AT NORFOLK TO SHOW A SHORT DELIVERY OF 5, 12 1/2, AND 24 BUNDLES OF LANDING MATS. AFTER THE MATTER OF THE SHORTAGES HAD BEEN INVESTIGATED ADMINISTRATIVELY, IT WAS ESTABLISHED THAT DELIVERY OF THE MATERIAL SHIPPED WAS NOT MADE AT DESTINATION AND, ACCORDINGLY, THE AMOUNT OF $3,597.40 WAS DEDUCTED FROM YOUR BILLS.

AFTER A NUMBER OF YEARS OF CORRESPONDENCE BETWEEN YOU AND THE ADMINISTRATIVE OFFICE CONCERNING THIS MATTER, YOUR CLAIMS WERE FORWARDED TO OUR OFFICE. SINCE YOUR BILL FOR THE TRANSPORTATION CHARGES ALLEGEDLY DUE ON BILL OF LADING NO. WT-8389805, REDUCED BY THE AMOUNT OF THE LOSS, WAS PAID BY AN ARMY DISBURSING OFFICER IN APRIL 1944 AND YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL AUGUST 1954, MORE THAN 10 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED, OUR TRANSPORTATION DIVISION NOTIFIED YOU BY LETTER DATED OCTOBER 12, 1956, THAT THIS PARTICULAR CLAIM IS BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS PROVIDED BY PUBLIC LAW 820, 76TH CONGRESS, 3RD SESSION, 31 U.S.C. 71A. BY LETTER DATED DECEMBER 6, 1955, OUR TRANSPORTATION DIVISION INFORMED YOU--- REGARDING YOUR CLAIM FOR 75 PERCENT OF $2,082.11 ALLEGED TO BE DUE ON BILL OF LADING NO. WT 1137221--- THAT SINCE IT APPEARED THAT THE DAMAGE FOR WHICH YOU WERE LIABLE AMOUNTED TO $2,082.11, OUR OFFICE WAS WITHOUT AUTHORITY TO ACCEPT ANY AMOUNT LESS THAN THAT IN SETTLEMENT OF THE MATTER. IN YOUR LETTER OF AUGUST 1, 1956, YOU REQUEST THAT A REVIEW BE MADE OF YOUR CLAIMS.

THE RECORD INDICATES THAT THE LANDING MATS, BUNDLED IN APPROXIMATELY 2,000-POUND LOTS, WERE LOADED IN GONDOLA CARS. YOU ALLEGE THAT THE BUNDLES WERE LOADED IN TIERS BELOW THE LEVEL OF THE GONDOLA SIDES, EACH TIER WAS STRAPPED WITH METAL BANDS AND EACH BAND WAS FASTENED WITH SEALS. ALLEGEDLY, NONE OF THE STRAPS OR SEALS WERE BROKEN PRIOR TO UNLOADING THE CARS AT DESTINATION. UPON ARRIVAL AT THE PORT, THE SUBJECT CARS WERE UNLOADED DIRECTLY TO SHIPS IN WHICH THESE MATS WERE COMMINGLED WITH THOSE BEING UNLOADED FROM OTHER CARS. IT IS YOUR CONTENTION THAT THE WEIGHT OF THE BUNDLES PRECLUDED THE POSSIBILITY OF THEFT OR THE POSSIBILITY OF THE BUNDLES FALLING OFF OR HOPPING OUT OF THE CARS DURING TRANSIT. YOU BELIEVE THAT THE SHORTAGES OCCURRED THROUGH ERRORS MADE BY ARMY PERSONNEL IN THE COUNT OF THE LANDING MATS WHEN UNLOADED FROM THE CARS. YOU CONTEND THAT THE CHECK WAS INADEQUATE SINCE NO STROKE TALLY WAS MADE, AND THAT A RECHECK WAS NOT FEASIBLE SINCE THE MATS WERE MIXED IN THE HOLD OF THE SHIP.

THE ADMINISTRATIVE OFFICE REPORTS THAT THE BUNDLES EXTENDED ABOVE THE SIDES OF THE CARS AND WERE NOT STRAPPED TO THE CARS. THEREFORE, THEY MAINTAIN THAT IT WAS POSSIBLE FOR THE MATS TO HAVE BEEN REMOVED FROM OR JARRED OUT OF THE CARS. THEY STATE THAT A RECHECK OF ONE OF THE CARS WAS MADE AND THE SHORTAGE VERIFIED.

THE QUESTION OF LOSS, OR LIABILITY FOR LOSS, IS ONE OF FACT, AND IN INSTANCES WHERE, AS HERE, THERE IS CONFLICT BETWEEN THE CONTENTIONS OF THE CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE CONCERNED, THE NECESSARY RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IS TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICE AS CORRECT IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY. SUCH EVIDENCE HAS NOT BEEN FURNISHED BY YOU AND, IN SITUATIONS LIKE THE PRESENT ONE, IN WHICH A CERTAIN AMOUNT OF GOODS WAS RECEIVED BY A CARRIER FOR TRANSPORTATION AND THE SAME AMOUNT WAS NOT DELIVERED AT DESTINATION, THE BURDEN OF PROVING THAT THE LOSS RESULTED FROM SOME CAUSE FOR WHICH IT WAS NOT LIABLE RESTS UPON THE CARRIER. GALVESTON, H. AND S.A.R. CO. V. WALLACE, 223 U.S. 481. WHILE YOUR CONTENTIONS APPEAR TO BE REASONABLE, WE NEVERTHELESS WOULD NOT BE JUSTIFIED IN RELIEVING YOU FROM LIABILITY FOR THE LOSS ON THE MERELY CONJECTURAL BASIS THAT THE COUNT WAS IN ERROR AND THAT IT WOULD BE DIFFICULT OR IMPOSSIBLE FOR THE LOSS TO HAVE OCCURRED.

ACCORDINGLY, THE SETTLEMENT ACTION TAKEN BY OUR TRANSPORTATION DIVISION WAS CORRECT AND, THEREFORE, IT IS SUSTAINED.