B-130658, AUG. 1, 1957

B-130658, AUG. 1, 1957

TO THE SECRETARY OF THE AIR FORCE:

ENCLOSED IS A COPY OF A LETTER DATED JANUARY 20, 1956, FILE SEDB-22 WY 1 756 860 AND WY 1 756 859, WITH WHICH THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, TRANSMITTED TO OUR OFFICE FOR SETTLEMENT A DISPUTED CLAIM OF YOUR DEPARTMENT AGAINST THE ALASKA RAILROAD, DEPARTMENT OF THE INTERIOR, FOR $4,276.44.

THE RECORD PRESENTED HERE SHOWS THAT THE CLAIM IS FOR THE VALUE OF TWO CARLOADS OF GASOLINE WHICH WERE SHIPPED FROM WHITTIER, ALASKA (PTO), TO EIELSON AIR FORCE BASE, ALASKA, ON BILLS OF LADING NOS. WY 1,756,860 AND WY-1,756,859, BOTH DATED NOVEMBER 6, 1953. THE CARS OVERTURNED WHEN THEY WERE DERAILED AT AN OPEN SWITCH, RESULTING IN THE LOSS OF THE GASOLINE, AND CONFLICTING STATEMENTS HAVE BEEN MADE BY MEMBERS OF THE AIR FORCE AND EMPLOYEES OF THE ALASKA RAILROAD AS TO WHICH GROUP WAS RESPONSIBLE FOR LEAVING THE SWITCH IN THE OPEN POSITION, OR FOR FAILURE TO DETECT THE ERROR BEFORE THE ACCIDENT OCCURRED. IN A LETTER DATED OCTOBER 19, 1955, TO THE AIR FORCE FINANCE CENTER AT DENVER, COLORADO, THE ALASKA RAILROAD, DEPARTMENT OF THE INTERIOR, SUGGESTS THAT THE RESPONSIBILITY FOR THE LOSS LIES, IN SOME MEASURE, UPON BOTH PARTIES, AND OFFERS TO COMPROMISE THE CLAIM ON THE BASIS OF EACH PARTY ACCEPTING LIABILITY FOR 50 PERCENT OF THE LOSS.

THE ACT OF MARCH 12, 1914 (38 STAT. 305), AS AMENDED, 48 U.S.C. 301, PROVIDES FOR THE ACQUISITION, CONSTRUCTION, AND OPERATION OF RAILROADS IN ALASKA, WITH AUTHORITY "TO RECEIVE COMPENSATION FOR THE TRANSPORTATION OF PASSENGERS AND PROPERTY, AND TO PERFORM GENERALLY ALL THE USUAL DUTIES OF A COMMON CARRIER BY RAILROAD.' ALSO, THE ACT OF JUNE 24, 1946, 60 STAT. 304, PROVIDES THAT "FUNDS AVAILABLE FOR THE OPERATION OF THE ALASKA RAILROAD SHALL BE AVAILABLE FOR * * * PAYMENT OF CLAIMS FOR LOSSES AND DAMAGES ARISING FROM OPERATIONS * * *.' THUS, THERE APPEARS TO BE AUTHORITY FOR PAYMENT BY THE ALASKA RAILROAD OF CLAIMS SUCH AS THE ONE UNDER CONSIDERATION. FOR SOMEWHAT SIMILAR SITUATIONS, SEE 14 COMP. GEN. 256; 26 ID. 235. SEE, ALSO, 25 COMP. GEN. 49. HOWEVER, IN VIEW OF THE DECISIONS IN THE CASES OF DEFENSE SUPPLIES CORPORATION V. UNITED STATES LINES COMPANY, 148 F.2D 311 (CERTIORARI DENIED 326 U.S. 746), AND GLOBE AND RUTGERS FIRE INSURANCE CO. V. HINES, 273 FED. 774, TO THE EFFECT THAT ONE GOVERNMENT INSTRUMENTALITY MAY NOT BRING SUIT AGAINST ANOTHER, THE DEPARTMENT OF THE AIR FORCE APPARENTLY DOES NOT HAVE A CLAIM ENFORCEABLE BY SUIT AGAINST THE ALASKA RAILROAD.

THE RECORD TRANSMITTED HERE IS INSUFFICIENT TO PERMIT A DETERMINATION WITH ANY REASONABLE DEGREE OF CERTAINTY THAT THE ALASKA RAILROAD WAS ENTIRELY RESPONSIBLE FOR THE LOSS OF THIS GASOLINE, OR THAT THE DEPARTMENT OF THE AIR FORCE DID NOT CONTRIBUTE TO THE LOSS. ACCORDINGLY, ON THIS RECORD, OUR OFFICE CANNOT DETERMINE WHERE THE LIABILITY LIES IN THIS DISPUTE BETWEEN TWO AGENCIES OF THE GOVERNMENT. IN OTHER CASES--- WHEN REASONABLY CONCLUSIVE PROOF AS TO THE PARTY ACTUALLY AT FAULT COULD NOT BE PRODUCED--- COMPROMISE SETTLEMENTS WITH COMMON CARRIERS FREQUENTLY HAVE BEEN CONSUMMATED, WHEN AUTHORIZED BY PROPER AUTHORITY. IN THE PRESENT SITUATION WE WILL OFFER NO OBJECTION TO A COMPROMISE SETTLEMENT ON THE BASIS OF 50 PERCENT OF THE DAMAGES SUSTAINED.