B-130406, JUN. 26, 1958

B-130406, JUN. 26, 1958

TO THE BALTIMORE AND OHIO RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, FILE USG BILL 30271-CRS, FOR REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. 30271-FB, FOR ADDITIONAL FREIGHT CHARGES IN THE AMOUNT OF $247, ALLEGED TO BE DUE FOR SHIPMENTS OF MILITARY PROPERTY UNDER GOVERNMENT BILLS OF LADING NOS. WE- 487781 AND WE-487782, DATED AUGUST 4, AND AUGUST 11, 1942, RESPECTIVELY. THESE BILLS OF LADING WHICH COVERED TWO CARLOAD SHIPMENTS ORIGINATING AT CLEVELAND, OHIO, SHOWED DELIVERY OF THE SHIPMENTS BY THE DETROIT, TODEDO AND IRONTON RAILROAD AT SPRINGFIELD, OHIO.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID ON EACH SHIPMENT, PURSUANT TO WAIVERS EXECUTED BY THE DETROIT, TOLEDO AND IRONTON RAILROAD, CHARGES IN THE AMOUNT OF $331.50 AS FOR SHIPMENT TRANSPORTED FROM CLEVELAND TO SPRINGFIELD AND RECONSIGNED FROM SPRINGFIELD TO COLUMBUS, OHIO. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE OVERPAYMENTS OF $123.50 WERE ASSERTED AGAINST EACH BILL OF LADING, SINCE THERE WAS NO EVIDENCE THAT EITHER SHIPMENT HAD BEEN RECONSIGNED AND DELIVERED AT COLUMBUS. THE OVERPAYMENTS WERE VOLUNTARILY REFUNDED UNDER PROTEST.

IN SUBSTANTIATION OF YOUR CLAIM FOR REFUND YOU SUBMITTED COPIES OF DETROIT, TOLEDO AND IRONTON RAILROAD FREIGHT WAYBILLS NOS. F-2108 AND F- 2258, COVERING THE SHIPMENTS INVOLVED, WHICH PURPORT TO SHOW RECONSIGNMENT OF THE SHIPMENTS IN THE ORIGINAL CARS. THE ONLY OTHER EVIDENCE OF RECONSIGNMENT APPEARS TO BE A PENCILED NOTATION ON A DETROIT, TOLEDO AND IRONTON RAILROAD FREIGHT BILL SAID TO BE ATTACHED TO A PHOTOSTATIC COPY OF GOVERNMENT BILL OF LADING NO. WE-487781 IN ARMY RETIRED FILES AT KANSAS CITY, MISSOURI. IN RESPONSE TO INQUIRY FROM OUR OFFICE, THE ARMY TRANSPORTATION CORPS UNIT AT KANSAS CITY REPORTED THAT A DETAILED SEARCH OF THE RECORDS SHOWED THAT THE SHIPMENTS WERE UNLOADED AT SPRINGFIELD, OHIO, BUT FAILED TO REVEAL ANY RESHIPMENT INFORMATION.

IN YOUR REQUEST FOR REVIEW YOU STATE THAT IN VIEW OF THE POSSIBILITY OF HUMAN ERROR FAILURE TO DISCOVER RESHIPPING INFORMATION DOES NOT PROVE THAT THE SHIPMENTS WERE NOT RECONSIGNED TO AND DELIVERED AT COLUMBUS. HOWEVER, IT IS NOT THE FUNCTION OF THE GENERAL ACCOUNTING OFFICE TO GIVE EFFECT TO ASSUMPTIONS NOT REASONABLY SUPPORTED BY FACTS AND LEGAL PRINCIPLES, BUT CLAIMANTS MUST PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES. COMP. GEN. 340. AS YOU HAVE ALREADY BEEN INFORMED PERTINENT GOVERNMENT RECORDS FAIL TO REVEAL RECONSIGNMENT ORDERS OR ACKNOWLEDGMENT OF THE RECEIPT OF THE SHIPMENTS AT COLUMBUS. A SHOWING OF DELIVERY OF A SHIPMENT AT DESTINATION IS PREREQUISITE TO THE PAYMENT OF TRANSPORTATION CHARGES CLAIMED TO BE DUE ON A GOVERNMENT BILL OF LADING. ALCOA S.S. CO. V. UNITED STATES, 338 U.S. 421.

IN THIS MATTER, IT IS NOT ENTIRELY IMPROBABLE THAT THE DETROIT, TOLEDO AND IRONTON RAILROAD WAYBILLS, UPON WHICH YOUR CLAIM PRIMARILY DEPENDS, WERE THE PRODUCT OF HUMAN ERROR. IN CLAIMS INVOLVING DISPUTED QUESTIONS OF FACT BETWEEN THE ADMINISTRATIVE OFFICE AND THE CLAIMANT, IT IS THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT AS TRUE THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICER IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY. 16 COMP. GEN. 1105, 1106.

ON THE PRESENT RECORD IT DOES NOT APPEAR THAT YOU HAVE SUSTAINED THE BURDEN OF PROVING THE LIABILITY OF THE UNITED STATES AND OUR OFFICE IS NOT JUSTIFIED IN AUTHORIZING PAYMENT OF THE PRESENT CLAIM, THE VALIDITY OF WHICH IS NOT FREE OF DOUBT. SEE UNITED STATES V. MISSOURI RAILROAD CO., 250 F.2D 805; UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R. CO., 355 U.S. 253. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.