B-138753, SEP. 18, 1959

B-138753, SEP. 18, 1959

TO THE PACIFIC ELECTRIC RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1959, FILE 57600-FCU, CONCERNING OUR CERTIFICATE OF SETTLEMENT (IN CLAIM NO. TK-543998), DATED APRIL 21, 1959, WHICH ALLOWED YOU $191.57, AS CLAIMED IN YOUR LETTER OF FEBRUARY 24, 1958. YOUR CLAIM FOR $191.57 THUS ALLOWED REPRESENTS 50 PERCENT OF $383.14 WHICH WAS DEDUCTED FROM MONEY OTHERWISE DUE AS THE VALUE OF EIGHT BALES OF CRUDE RUBBER LOST IN A SHIPMENT TRANSPORTED FROM LOS ANGELES HARBOR TO MAYWOOD, CALIFORNIA, ON GOVERNMENT BILL OF LADING NO. TPS-1311533, DATED DECEMBER 23, 1950.

YOUR LETTER OF MAY 6, 1959, STATES THAT THE LETTER OF FEBRUARY 24, 1958, WAS "IN ERROR," SINCE, AS YOU NOW ALLEGE, THE LOADING OF THE SHIPMENT WAS PERFORMED FOR ACCOUNT OF THE SHIPPER AND MOVED UNDER A CLEAR SEAL RECORD. YOU REQUEST THAT OUR REFUND IS INCREASED FROM $191.57 TO $383.14.

THE RECORD IN THIS MATTER SHOWS THAT ON MARCH 6, 1953, THE GENERAL SERVICES ADMINISTRATION FILED A CLAIM FOR $383.14 WITH YOU FOR REIMBURSEMENT OF LOSS INVOLVED. BY LETTER DATED JULY 30, 1953, MR. F. F. WILLEY, FREIGHT CLAIM AGENT, DECLINED THE CLAIM WITH THE ADVICE THAT 224 BALES WERE CHECKED INTO THE CAR AT LOS ANGELES HARBOR AND SEALS IMMEDIATELY APPLIED, AND BECAUSE OF THE CLEAR SEAL RECORD THERE WAS NO POSSIBILITY THAT THE LOSS COULD HAVE OCCURRED WHILE IN THE CARRIER'S POSSESSION.

THE CLAIM WAS SUBMITTED HERE FOR COLLECTION, AND ON JULY 12, 1956, WE REQUESTED PAYMENT OF $383.14, WHICH YOU DECLINED ON AUGUST 10, 1956. SEPTEMBER 20, 1956, YOU STATED THAT LOADING AND CHECKING OF THE CAR WERE ACCOMPLISHED BY THE AMERICAN PRESIDENT LINES, AND THAT NO LIABILITY RESTS WITH THE CARRIER FOR THE LOSS. THE GENERAL SERVICES ADMINISTRATION, ON THE OTHER HAND, STATES THAT THE CAR WAS LOADED BY WAREHOUSEMEN FROM THE HIRING HALL ACTING AS AGENTS OF THE RAILROAD CARRIER, AND WE SO INFORMED YOU ON AUGUST 5, 1957. DEDUCTION OF $383.14 WAS MADE IN OCTOBER 1957, FROM YOUR BILL NO. F-47326-8.

IN YOUR LETTER OF FEBRUARY 24, 1958, CLAIMING $191.57, YOU STATED THAT:

"* * * WHEN SHIPMENT IS LOADED BY RAIL CARRIER, UNLOADED BY CONSIGNEE, AND HANDLED BY RAIL CARRIER UNDER A CLEAR SEAL RECORD, THE MAXIMUM PAYMENT OF THE RAIL CARRIER IS 50 PERCENT OF THE ESTABLISHED LIABILITY.'

ACCORDINGLY ON APRIL 29, 1959, THAT SAID CLAIM FOR $191.57 WAS PAID BY CHECK NO. 26,706,923, WHICH YOU DEPOSITED IN THE EARLY PART OF MAY 1959.

YOUR OFFER TO ACCEPT THE REFUND OF $191.57 WAS NEVER WITHDRAWN UNTIL YOU RECEIVED THE GOVERNMENT'S CHECK IN THAT AMOUNT, THE ISSUANCE OF WHICH REFLECTED OUR AGREEMENT TO CONSIDER THE RETAINED BALANCE OF $191.57 AS BEING SUFFICIENT, FOR THE PURPOSE OF SETTLEMENT, TO DISCHARGE YOUR LIABILITY. OUR ACTION ON YOUR OFFER MATERIALLY CHANGED OUR POSITION, AS SUPPORTED BY THE ADMINISTRATIVE REPORTS, THAT NO LESS THAN THE FULL AMOUNT OF $383.14 WOULD DISCHARGE YOUR LIABILITY. OUR WILLINGNESS TO AUTHORIZE THE SETTLEMENT PROPOSED BY YOU WAS PROMPTED PRIMARILY BY CONSIDERATIONS OF EXPEDIENCY IN AN EFFORT TO BRING THE MATTER TO AN AMICABLE ADJUSTMENT AND TO AVOID ADDITIONAL EXPENSE AND EFFORT BECAUSE OF POSSIBLE FURTHER PROCEEDINGS. WE DID NOT THEN, NOR DO WE NOW, CONCEDE THAT, AS A MATTER OF LAW, THE CARRIER WAS NOT LIABLE FOR THE FULL AMOUNT OF THE DAMAGES SUFFERED BY THE GOVERNMENT BY REASON OF THE CARRIER'S FAILURE TO PERFORM THE TRANSPORTATION SERVICE INVOLVED IN ACCORDANCE WITH THE TERMS OF THE BILL OF LADING CONTRACT.

IN VIEW OF THE FOREGOING SITUATION WE DO NOT BELIEVE THAT WE WOULD BE JUSTIFIED IN REOPENING THE PERTINENT SETTLEMENT WHICH AUTHORIZED PAYMENT OF THE FULL AMOUNT YOU OFFERED TO ACCEPT IN ADJUSTMENT OF THE DISPUTED LIABILITY. ACCORDINGLY, FAVORABLE ACTION WILL NOT BE TAKEN ON YOUR PRESENT CLAIM.