B-127374, SEP. 4, 1956

B-127374, SEP. 4, 1956

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

BEFORE THIS OFFICE FOR CONSIDERATION IS A CLAIM OF THE LEHIGH VALLEY RAILROAD COMPANY INVOLVING AN OFFER OF COMPROMISE ARISING OUT OF THE LOSS OF ONE CARTON OF CLOTHING TRANSPORTED. THE FOLLOWING REPORT IS PRESENTED TO YOU FOR FORWARDING, WITH YOUR RECOMMENDATION TO THE SECRETARY OF THE TREASURY, AS PROVIDED IN 31 U.S.C. 194, AND REGULATIONS OF THE TREASURY DEPARTMENT, 31 C.F.R. 240.0-240.5.

THE CARTON OF CLOTHING, LISTED AS WEIGHING 110 POUNDS, WAS TENDERED BY THE TRAFFIC OFFICE, SUFFOLK COUNTY ARMY AIR FORCE, LONG ISLAND, NEW YORK, TO THE LONG ISLAND RAILROAD FOR TRANSPORTATION FROM WESTHAMPTON, NEW YORK, TO ROYCE, NEW JERSEY, ON GOVERNMENT BILL OF LADING NO. WV 863220, DATED APRIL 12, 1945. ON DELIVERY AT ROYCE, NEW JERSEY, BY THE LEHIGH VALLEY RAILROAD ON APRIL 28, 1945, THE ASSISTANT TRANSPORTATION OFFICER INDORSED THE REVERSE OF THE BILL OF LADING THAT THERE WAS SHORT ONE CARTON OF CLOTHING CONTAINING NINE WOOLEN OVERCOATS. THE VALUE OF THE LOSS WAS ASSESSED AT $105.57, WHICH WAS DEDUCTED FROM THE CARRIER'S BILL NO. 95817, IN JUNE 1945.

ON MAY 24, 1945, THE CARRIER WAS ADVISED THAT THE ESTIMATE OF LOSS WAS REVISED UPWARD TO AN AMOUNT OF $575.43, ON THE BASIS OF A WAR DEPARTMENT SHIPPING DOCUMENT PREPARED BY THE ASSISTANT GENERAL SUPPLY OFFICER, SUFFOLK COUNTY AIR FIELD, ON APRIL 10, 1945, SHOWING THE MISSING CARTON TO HAVE CONTAINED 41 WOOLEN OVERCOATS, AND 42 PAIRS OF TROUSERS. THE ADDITIONAL $469.86 WAS DEDUCTED ON JULY 28, 1945, FROM MONEY OTHERWISE OWING TO THE CARRIER. THE CARRIER ADMITTED LIABILITY FOR THE VALUE OF THE LOST CARTON OF CLOTHING IN A LETTER DATED MAY 8, 1953, BUT PROTESTED THE DEDUCTION OF THE ADDITIONAL $469.86. IN A LETTER DATED FEBRUARY 17, 1954, THE CARRIER AGAIN PROTESTED THE ADDITIONAL DEDUCTION ASSERTING THAT IF THE CARTON HAD CONTAINED 41 OVERCOATS AND 42 PAIRS OF TROUSERS AS CLAIMED BY THE DEPARTMENT OF THE ARMY, IT WOULD HAVE WEIGHED MORE THAN THE 110 POUNDS LISTED ON THE ORIGINAL BILL OF LADING, BUT NEVERTHELESS OFFERED TO COMPROMISE ITS CLAIM FOR 50 PERCENT, AND TRANSMITTED A SUPPLEMENTAL BILL FOR $234.93.

THE DEPARTMENT OF THE ARMY TRANSMITTED THE CLAIM TO OUR OFFICE ON APRIL 28, 1954, WITH A RECOMMENDATION THAT THE OFFER BE ACCEPTED. ON THE BASIS OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE OCCURRENCE OF THE SHORTAGE INVOLVED, AS REFLECTED IN THE RECORD, COPY HEREWITH, AND IN VIEW OF THE LAPSE OF TIME, AS WELL AS THE DOUBT AS TO THE NUMBER OF ITEMS CONTAINED IN THE LOST CARTON OF CLOTHING, WE RECOMMEND THAT THE OFFER BE ACCEPTED.

THE OFFER OF COMPROMISE WAS NOT ACCOMPANIED BY CHECK, DRAFT, OR MONEY ORDER FOR THE AMOUNT OF THE OFFER AS REQUIRED BY THE REGULATIONS OF THE TREASURY DEPARTMENT CIRCULAR 39 (REVISED), 31 C.F.R. 240.4, FOR THE REASON THAT THE GOVERNMENT IS PRESENTLY IN POSSESSION OF MONEY OTHERWISE OWING TO THE CARRIER IN TWICE THE AMOUNT OF THE OFFER. IN THE EVENT THE SECRETARY OF THE TREASURY CONCLUDES 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 DAMAGE. WHILE THE CLAIM OF THE CARRIER WAS BARRED FROM SUIT AT THE TIME IT WAS TRANSMITTED TO US, IT WAS RECEIVED HERE 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.