B-131857, JAN 3, 1958

B-131857, JAN 3, 1958

TO THE CANADIAN NATIONAL RAILWAYS:

REFERENCE IS MADE TO YOUR REQUEST, FILE 1505-U, FOR RECONSIDERATION OF OUR DECISION OF JULY 17, 1957 (B-131857), IN WHICH WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM, BILLS NOS. W. 12785, W. 1544, W. 2505, AND W. 1521, FOR ADDITIONAL CHARGES IN THE AMOUNT OF $66.50, FOR THE TRANSPORTATION OF UNITED STATES AIR FORCE PERSONNEL, BY TRACK MOTOR CAR, FROM GRAHAM TO OSCAR, AND PETRY, ONTARIO, CANADA, AND RETURN, DURING DECEMBER 1955 AND JANUARY 1956.

THE ADDITIONAL CHARGES CLAIMED ARE SAID TO COVER EXTRA OUT-OF-POCKET EXPENSES FOR TIME OF SECTION MEN, GASOLINE AND RENTAL OF TRACK MOTOR CAR, WHICH YOU CLAIM AS A PROPER CHARGE IN ADDITION TO THE REGULAR FARE PAID FOR SEVERAL ROUND-TRIP MOVEMENTS OF A SALVAGE TEAM OF AIR FORCE PERSONNEL, HEADED BY CAPTAIN HAROLD C. ROSS, BETWEEN GRAHAM AND OSCAR, AND PETRY, ONTARIO, DURING DECEMBER 1955 AND JANUARY 1956.

THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED IN OUR PRIOR DECISION FOR THE REASON THAT THERE DID NOT APPEAR TO BE ANY AGREEMENT BY THE GOVERNMENT OR TARIFF AUTHORITY FOR THE ADDITIONAL CHARGES. IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION, YOU SUBMITTED A PHOTOSTATIC COPY OF COMPANY REGULATIONS, DATED DECEMBER 20, 1951, WHICH SET FORTH PROVISIONS AND CHARGES FOR THE OPERATION OF TRACK MOTOR CARS. HOWEVER, THE COPY OF THE REGULATIONS IS CAPTIONED ,INTER-DEPARTMENTAL CORRESPONDENCE" AND IS APPARENTLY A SHEET OF INSTRUCTIONS TO YOUR AGENTS. IT DOES NOT APPEAR THAT THESE REGULATIONS WERE DULY PUBLISHED AND FILED AS A TARIFF BINDING UPON ALL PARTIES USING THE DESCRIBED SERVICES, AND IT APPEARS THAT THE APPLICABILITY OF THE REGULATIONS IN PARTICULAR INSTANCES WOULD DEPEND UPON THE UNDERSTANDING OF THE PARTIES RECEIVING THE BENEFIT OF SUCH SERVICES.

YOU STATE THAT CAPTAIN ROSS WAS FULLY INFORMED BY YOUR OPERATING SUPERINTENDENT OF THE BASIS FOR CHARGES. HOWEVER, AS INDICATED IN OUR PRIOR DECISION, A REPORT FROM THE DEPARTMENT OF THE AIR FORCE AND A STATEMENT SIGNED BY CAPTAIN ROSS, DECLARE THAT CAPTAIN ROSS WAS INFORMED BY YOUR STATION AGENT THAT THE CHARGE WOULD BE ONE FIRST CLASS FARE TO OSCAR, THE FIRST STATION BEYOND THE SCENE OF THE SALVAGE OPERATIONS, AND RETURN FOR EACH MEMBER OF THE SALVAGE TEAM, AND THAT AT NO TIME WAS ANY MENTION MADE OF ADDITIONAL EXPENSES TO BE ASSESSED. AS ALSO STATED BEFORE, IN CLAIMS INVOLVING DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, IT IS THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT AS TRUE THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE CONCERNED, IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY.

SINCE NO ADDITIONAL EVIDENCE REFLECTING AN AGREEMENT BY THE RESPONSIBLE UNITED STATES GOVERNMENT OFFICERS AS TO THE ADDITIONAL CHARGES CLAIMED HAS BEEN PRESENTED, OUR CONCLUSION IN THE PRIOR DECISION SUSTAINING THE DISALLOWANCE OF YOUR CLAIM IS REAFFIRMED.