B-144580, APR. 4, 1961

B-144580, APR. 4, 1961

TO THE NEDLLOYD LINE, JAVA PACIFIC LINE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1960, YOUR CLAIM FILE NO. ML-1612, REQUESTING A REVIEW OF OUR SETTLEMENT DATED NOVEMBER 9, 1960, WHICH DISALLOWED YOUR CLAIM FOR $5,317.90 AS AN ADDITIONAL ALLOWANCE FOR FREIGHT TRANSPORTATION FURNISHED THE GENERAL SERVICES ADMINISTRATION.

THE RECORDS SHOW THAT ON JUNE 21, 1956, 3,241 FIBRE DRUMS OF D.D.T. POWDER WERE DELIVERED TO JAVA PACIFIC LINE, INCORPORATED, GENERAL AGENTS FOR THE NEDLLOYD LINE AT SAVANNAH, GEORGIA, FOR TRANSPORTING ABOARD THE S.S. UTRECHT TO CALCUTTA, INDIA, UNDER COMMERCIAL BILL OF LADING NO. 1, DATED JUNE 21, 1956. UPON ARRIVAL OF THE VESSEL AT DESTINATION IT WAS DISCOVERED THAT ONLY 3,076 DRUMS OF D.D.T. POWDER WERE DISCHARGED, LEAVING A SHORTAGE OF 165 DRUMS. YOU WERE FOUND TO BE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $5,588.88, REPRESENTING $4,859.25 AS THE VALUE OF THE 165 DRUMS OF D.D.T. POWDER LOST IN TRANSIT, PER THE COMMISSIONERS FOR THE PORT OF CALCUTTA, SHORT LANDED REPORT C 2U/17, DATED NOVEMBER 21, 1956, PLUS UNEARNED FREIGHT IN THE AMOUNT OF $729.63 ON SUCH LOST MATERIAL, WHICH AMOUNT HAS BEEN REFUNDED TO THE GOVERNMENT.

UNDER DATE OF MAY 20, 1960, YOU PRESENTED A CLAIM FOR $5,317.90 REPRESENTING THE VALUE OF 157 DRUMS OF D.D.T. POWDER ALLEGED TO HAVE BEEN DELIVERED TO GORAKHPUR, A RAILWAY STATION IN THE INTERIOR. IN SUPPORT OF SUCH CLAIM YOU ENCLOSED A LETTER DATED APRIL 28, 1960, ADDRESSED TO MR. E. J. MCATEER, STEAMSHIP BROKER AND AGENT, CAFRITE BUILDING, WASHINGTON, D.C., SETTING FORTH YOUR POSITION, IN WHICH IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

"OUR CALCUTTA AGENTS ADVISED THIS OFFICE THAT THIS SHIPMENT, CONSISTING OF 3,241 DRUMS OF D.T., THEIR OUTTURN REPORT STATED THAT ONLY 3,076 DRUMS WERE DELIVERED TO THE CONSIGNEES AT CALCUTTA, INDICATING A SHORTAGE OF 165 DRUMS. CARGO TRACER FORMS WERE IMMEDIATELY ISSUED BY OUR CALCUTTA AGENTS FOR POSSIBLE LOCATION OF THESE SHORT-DELIVERED DRUMS AND IT WAS NOT UNTIL THEY MADE INQUIRIES WITH THE CLEARING AGENTS OF THE INDIAN GOVERNMENT THAT 157 DRUMS OF D.D.T. WERE EXCESS LANDED IN GORALDPUR, ONE OF THE RAILWAY STATIONS UP COUNTRY. THE PORT COMMISSIONERS AT CALCUTTA NEVER NOTIFIED OUR CALCUTTA AGENTS OF THE ABOVE EXCESS LANDING AND ISSUED THEIR SHORTLANDING CERTIFICATE COVERING 165 DRUMS. THE 157 DRUMS WERE NOT OFFICIALLY CONFIRMED TO BE OUT OF THE SS "UTRECHT" CARGO, BUT IT IS CERTAIN THAT NO PARCELS OF D.D.T. DRUMS FROM OTHER VESSELS WERE FORWARDED TO GORAKHPUR AT THAT TIME. THE EXCESS LANDING WAS REPORTED IN NOVEMBER OF 1956 BY THE ANTI-MALARIA OFFICER AT THE GORAKHPUR STATION AND THE PORT COMMISSIONERS TRIED TO RECEIVE REPORTED IN NOVEMBER OF 1956 BY THE ANTI- MALARIA OFFICER AT THE CORAKHPUR STATION AND THE PORT COMMISSIONERS TRIED TO RECEIVE OFFICIAL CONFIRMATION FROM THE RAILWAY AUTHORITIES THAT 157 DRUMS OF D.D.T. WERE RECEIVED IN EXCESS AT GORAKHPUR BUT WE REGRET TO ADVISE THAT NO CONFIRMATION WAS RECEIVED FROM THESE PEOPLE. OUR CALCUTTA AGENTS APPOINTED CARGO SURVEYORS TO PROCEED TO GORAKHPUR TO CARRY OUT A SURVEY ON A CONSIGNMENT OF D.D.T. DRUMS DESPATCHED FROM CALCUTTA TO GORAKHPUR. THEIR INVESTIGATION ON JAN. 6 AND 7, 1958, CONFIRMED THAT 157 DRUMS OF D.D.T. WERE LANDED IN EXCESS AT GORAKHPUR, HOWEVER, THE NORTH EASTERN RAILWAY TRANSFERRED THE 157 DRUMS TO THEIR LOST PROPERTY OFFICE AND SUBSEQUENTLY THESE DRUMS WERE PLACED ON AUCTION AND SOLD ON MAY 16, 1957 WHICH WAS CONFIRMED BY THE CHIEF COMMERCIAL SUPERINTENDENT OF NORTH EASTERN RAILWAY AT GORAKHPUR.

"OUR CALCUTTA AGENTS EXPLAINED THE ABOVE SITUATION IN FULL DETAIL TO THE PORT COMMISSIONERS AND DUE TO THE INVESTIGATION OF OUR CARGO SURVEYORS, WE REQUESTED AN AMENDED SHORTLANDING CERTIFICATE COVERING 8 DRUMS D.D.T. IN LIEU OF 165 DRUMS. WE REGRET TO ADVISE THAT NEITHER THE RAILWAY AUTHORITIES NOR THE PORT COMMISSIONERS AGREED TO OUR REASONING AND REFUSED TO ISSUE AN AMENDED SHORT-LANDED CERTIFICATE.

"IN THE MEAN TIME, THE GENERAL SERVICES ADMINISTRATION AT WASHINGTON CONTACTED THIS OFFICE AND REQUESTED US TO MAKE IMMEDIATE FULL PAYMENT FOR 165 DRUMS D.D.T. SHORT-DELIVERED, AS PER ISSUANCE OF THE COVERING CERTIFICATE BY THE PORT COMMISSIONERS AT CALCUTTA AND ADVICES FROM THE DIRECTOR OF GENERAL OF HEALTH SERVICES AT NEW DELHI. CLAIMANT IS TAKING THE POSITION THAT SINCE IT WAS NOT DEFINITELY PROVEN BY US THAT THE 157 DRUMS EXCESS LANDED AT GORAKHPUR WERE DESPATCHED OUT OF THE SS "UTRECHT" SHIPMENT, WE ARE LIABLE FOR THIS SHORTAGE. WE ARE TAKING THE POSITION THAT OUR LIABILITY SHOULD ONLY BE FOR 8 DRUMS SHORT AS THE 157 DRUMS WERE SOLD AFTER LEAVING THE CARRIERS CUSTODY OVER WHICH WE HAVE NO CONTROL. POINTED OUT TO THE GENERAL SERVICES ADMINISTRATION THAT THE VESSEL IS NOT RESPONSIBLE FOR THE DELIVERY OF CARGO TO THE CONSIGNEES BUT MERELY TO THE POST COMMISSIONERS AT CULCUTTA WHO MAKE DELIVERY TO THE CONSIGNEES.

"THE CLAIMANT AGAIN CONTACTED THIS OFFICE ON MARCH 30, 1959, AND ADVISED US THAT IF NO FULL PAYMENT WAS MADE ON THIS CLAIM, THEY WOULD WITHHOLD MONIES OTHERWISE DUE OUR PRINCIPALS. AFTER WRITING TO OUR PRINCIPALS, THEY AGREED TO HONOR THIS CLAIM IN FULL WITH THE STIPULATION THAT WE WOULD BE ABLE TO RECOVER A REFUND UPON RECEIPT OF PROOF THAT THE 157 DRUMS D.D.T. EXCESS LANDED AT GORAKHPUR WERE ACTUALLY OUT OF THE SS "UTRECHT" SHIPMENT AND WE SHOULD CONTINUE TO TRY TO SECURE AN AMENDED SHORTLANDED CERTIFICATE FROM THE PORT COMMISSIONERS AT CALCUTTA. ON MAY 4, 1959, WE ISSUED OUR CHECK IN THE TOTAL AMOUNT OF $5,588.88 TO THE U.S. GENERAL ACCOUNTING OFFICE AT WASHINGTON WITH THE ABOVE STIPULATION.

"AFTER OUR ABOVE SETTLEMENT, WE TURNED THIS MATTER OVER TO OUR CALCUTTA AGENTS FOR FURTHER HANDLING. OUR CALCUTTA AGENTS APPOINTED THEIR SOLICITORS AND AFTER NUMEROUS EXCHANGES OF CORRESPONDENCE BETWEEN THE SOLICITORS, ACTING IN OUR BEHALF, AND THE RAILWAY AUTHORITIES AND PORT COMMISSIONERS AS WELL, WE REGRET TO ADVISE THAT THEY REFUSED TO ACCEPT OUR POSITION ON THIS CASE AND WOULD NOT ISSUE ANY AMENDED SHORTLANDED CERTIFICATE.'

THIS CLAIM WAS DISALLOWED BY THE SETTLEMENT OF NOVEMBER 9, 1960, FOR THE REASON THAT THE RECORD CONTAINED NO EVIDENCE SHOWING THAT ANY PORTION OF THE 165 DRUMS OF D.D.T. POWDER IN QUESTION WERE RECEIVED IN CALCUTTA, INDIA, ABOARD THE S.S. UTRECHT.

WITHOUT SUBMITTING ANY ADDITIONAL EVIDENCE OR INFORMATION YOU REQUEST THAT THE CASE BE REOPENED AND THE ENTIRE FILE REVIEWED.

THE COURT OF CLAIMS HELD, AT A VERY EARLY DATE, IN LONGWILL V. UNITED STATES, 17 C.CL. 288, 291, AND IN CHARLES V. UNITED STATES, 19 CT.CL. 316, 319, THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE THE RIGHT AND DUTY TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE AND TO REJECT ALL CLAIMS CONCERNING WHICH ANY DOUBTS EXIST. OUR OFFICE HAS ALWAYS HELD THAT THE BURDEN IS NOT ON US TO REFUTE CLAIMS PRESENTED HERE FOR SETTLEMENT OR THE ALLEGATIONS UPON WHICH SUCH CLAIMS ARE BASED, BUT THE BURDEN IS ON THE CLAIMANTS TO FURNISH EVIDENCE, EITHER TO OUR OFFICE, OR TO THE COURT, IF THEY CHOOSE TO FILE SUIT, CLEARLY AND SATISFACTORILY ESTABLISHING THE CLAIMS AND ALL MATTERS INCIDENTAL THERETO IN ORDER TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THEIR RIGHT TO RECEIVE PAYMENT. SEE 18 COMP. GEN. 199, 200; ID. 980; AND 31 ID. 340.

APPARENTLY, YOU CONCEDE THAT 8 DRUMS OF D.D.T. POWDER WERE LOST IN TRANSIT AND, ASSUMING THAT YOUR AGENTS ARE CORRECT IN THEIR STATEMENT THAT 157 DRUMS OF D.D.T. POWDER WERE LOCATED AT GERAKHPUR, THERE IS NO EVIDENCE OF RECORD THAT THESE DRUMS WERE A PART OF THE SHIPMENT DISCHARGED BY THE S.S. UTRECHT AT CALCUTTA, OR THAT AN ERROR HAD BEEN MADE BY THE PORT COMMISSIONERS. THUS, IN THE ABSENCE OF SOME OFFICIAL DOCUMENTARY EVIDENCE, SUCH AS AN AMENDED SHORTLANDING CERTIFICATE, THERE IS NO PROPER BASIS FOR THIS OFFICE TO GIVE FAVORABLE CONSIDERATION TO YOUR CLAIM.

ACCORDINGLY, ON THE PRESENT RECORD THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.