B-138629, NOV. 17, 1959

B-138629, NOV. 17, 1959

TO MISSOURI PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER WRITTEN UNDER FILE REFERENCE 2-GA 36298 IN WHICH YOU, IN EFFECT, REQUEST RECONSIDERATION OF OUR DECISION OF FEBRUARY 26, 1959, B-138629. IN THAT DECISION WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. S-36298-B, FOR ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY FROM THE GLENN L. MARTIN COMPANY, BENGIES, MARYLAND, TO THE BUREAU OF AERONAUTICS REPRESENTATIVE (NAVY), PRATT AND WHITNEY AIRCRAFT CORPORATION, DODSON, MISSOURI, UNDER GOVERNMENT BILL OF LADING NO. N-4112281, DATED JUNE 10, 1944.

YOUR CLAIM IS BASED UPON THE ALLEGATION THAT THREE CARLOADS OF INTERNAL COMBUSTION ENGINES WERE TRANSPORTED UNDER BILL OF LADING N 4112281 AND YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNT OF $842.98, COMPUTED ON THAT BASIS. ON AUDIT OF THE PAYMENT VOUCHER, WE FOUND THAT THE BILL OF LADING AND THE CERTIFICATE OF DELIVERY SHOWED THAT ONLY TWO CARLOADS OF INTERNAL COMBUSTION ENGINES WERE TRANSPORTED AND DELIVERED AT DESTINATION. CONSEQUENTLY, AN OVERPAYMENT OF $410.06 WAS ASSESSED AGAINST YOU. YOU VOLUNTARILY REFUNDED $59.39, AND THE BALANCE OF $350.67 WAS RECOVERED BY SET-OFF FROM AMOUNTS OTHERWISE FOUND DUE, IN ACCORDANCE WITH SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66.

IN SUPPORT OF THE ORIGINAL REQUEST FOR REVIEW CONTAINED IN YOUR LETTER OF APRIL 10, 1058, YOU SUBMITTED A "GOVERNMENT BILL OF LADING EXTRA SHEET" (STANDARD FORM NO. 1062), IDENTIFIED IN THE UPPER RIGHTHAND CORNER AS "B/L NO. 4112281--- SHEET NO. TWO (2)," WHICH PURPORTS TO BE A CONTINUATION SHEET FOR GOVERNMENT BILL OF LADING NO. N-4112281, AND YOU STATED IN YOUR LETTER, AS FOLLOWS:

"A RE-EXAMINATION OF OUR FILE DEVELOPED THE FACT THAT SHEET NUMBER TWO OF BILL OF LADING NO. 4112281 WAS ERRONEOUSLY RETAINED IN OUR FILE AND WAS NEVER SUBMITTED. WE ARE, THEREFORE, SENDING IT HEREWITH AND REQUEST THAT WITH THIS ADDITIONAL INFORMATION THAT OUR SUPPLEMENTAL BILL BE PLACED IN LINE FOR PAYMENT.'

THE ALLEGED CONTINUATION SHEET SHOWS THAT EIGHT BOXES OF INTERNAL COMBUSTION ENGINES WEIGHING 25,920 POUNDS WERE TRANSPORTED FROM BENGIES, MARYLAND, TO DODSON, MISSOURI, IN CAR NO. PRR 59796.

ALTHOUGH THE CONTINUATION SHEET APPEARED TO BE WHAT IT PURPORTED TO BE, THERE WAS NOTHING ON THE BILL OF LADING TO INDICATE THE EXISTENCE OF A CONTINUATION SHEET, AND THE CERTIFICATE OF DELIVERY ACKNOWLEDGED RECEIPT OF ONLY THE 45,360 POUNDS CONTAINED IN THE TWO CARLOADS SHOWN ON THE FIRST PAGE OF THE BILL OF LADING. CONSEQUENTLY, THE EXTRA SHEET, IN AND OF ITSELF, WAS NOT DEEMED SUFFICIENT TO SUPPORT THE CLAIM, AND IN OUR PRIOR DECISION THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED FOR FAILURE TO PRESENT SUFFICIENT EVIDENCE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES FOR THE ADDITIONAL FREIGHT CHARGES CLAIMED. SEE 31 COMP. GEN. 340; 18 ID. 980.

WITH YOUR REQUEST FOR RECONSIDERATION YOU SUBMITTED THE ORIGINAL INTERLINE FREIGHT WAYBILLS ISSUED BY THE PENNSYLVANIA RAILROAD, AND REVISED YOUR CLAIM DOWNWARD TO $292.22, COMPUTED AS FOLLOWS:

TABLE

ACTUAL WEIGHT 25,920 LBS. AT 90.193 CENTS $233.78

50 FT. 6 IN. CAR RULE

34 38,880 LBS. AT 90.193 CENTS 350.67

DIFFERENCE $116.89

AMOUNT DUE ON ACTUAL WEIGHT $233.78

50 PERCENT OF DIFFERENCE BASED ON RULE 34 58.44

NET AMOUNT DUE $292.22

THE THREE WAYBILLS SUBMITTED BY YOU MAKE REFERENCE TO THE SUBJECT GOVERNMENT BILL OF LADING, AND ON THE REVERSE SIDE ARE THE STAMPS OF THE SEVERAL RAILROADS IN THE ROUTING.

INTERLINE FREIGHT WAYBILL NO. 50032 INDICATES THAT EIGHT BOXES OF INTERNAL COMBUSTION ENGINES, WEIGHING 25,920 POUNDS (AS 38,880 POUNDS), WERE TENDERED AT BENGIES, MARYLAND, BY THE BAR GLENN L. MARTIN COMPANY FOR TRANSPORTATION AND DELIVERY TO BUREAU OF AERONAUTICS REPRESENTATIVE, PRATT AND WHITNEY AIRCRAFT CORPORATION, DODSON, MISSOURI, AND THE CARRIERS' STAMPS ON THE WAYBILL INDICATE THAT THE SHIPMENT ACTUALLY REACHED DODSON. HOWEVER, NEITHER THE WAYBILL NOR ANY OTHER DOCUMENT CONTAINED IN THE PRESENT RECORD PROVES ACTUAL DELIVERY OF THE CAR TO THE CONSIGNEE BEFORE THE BILL OF LADING MAY BE "PROPERLY" ACCOMPLISHED AND, THEREFORE, THAT THE GOVERNMENT IS LIABLE FOR FREIGHT CHARGES ONLY TO THE EXTENT THAT A SHIPMENT IS ACTUALLY DELIVERED TO THE CONSIGNEE AT DESTINATION. ALCOA S.S.CO. V. UNITED STATES, 338 U.S. 421; STRICKLAND TRANSPORTATION CO. V. UNITED STATES, 223 F.2D 466.

WHILE THE PRESENT WAYBILL TENDS TO ESTABLISH THAT THE GOODS ARRIVED AT THE DESTINATION CITY, THE BILL OF LADING ACKNOWLEDGES RECEIPT OF ONLY THE 45,360 POUNDS TRANSPORTED IN TWO CARLOADS FOR THE TRANSPORTATION OF WHICH YOU HAVE ALREADY BEEN PAID THE FULL CHARGES. THERE IS NO EVIDENCE THAT THE 25,960 POUNDS IN THE THIRD CAR WERE ACTUALLY RECEIVED BY THE CONSIGNEE. CONSEQUENTLY, THE LIABILITY OF THE UNITED STATES FOR THE ADDITIONAL CHARGES CLAIMED HAS NOT BEEN ESTABLISHED, AND OUR PREVIOUS DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.