B-147830, AUG. 14, 1962

B-147830, AUG. 14, 1962

TO READING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1962, ADDRESSED TO OUR TRANSPORTATION DIVISION REGARDING ITS LETTER OF JUNE 27, 1962, WHEREIN YOU WERE ADVISED THAT THE DEPARTMENT OF JUSTICE HAD (1) REJECTED YOUR COMPROMISE OFFER TO ACCEPT 50 PERCENT OF THE LIABILITY FOR THE LOSS OF GOVERNMENT PROPERTY IN THE AMOUNT OF $12.91 ON A SHIPMENT MOVING UNDER BILL OF LADING NO. GS-1223508 AND (2) THAT IT APPROVES ACCEPTANCE OF YOUR COMPROMISE OFFER TO ACCEPT 50 PERCENT LIABILITY FOR THE LOSS OF GOVERNMENT PROPERTY IN THE AMOUNT OF $68.34 ON A SHIPMENT MOVING UNDER BILL OF LADING NO. GS-1224713. THE SAID LETTER ALSO ADVISED YOU THAT THE DEPARTMENT REJECTS YOUR COMPROMISE OFFER TO ACCEPT LIABILITY IN THE AMOUNT OF $118.94 FOR THE LOSS OF GOVERNMENT PROPERTY IN THE AMOUNT OF $317.18 ON A SHIPMENT MOVING UNDER BILL OF LADING NO. GS 1224784, AND THAT IT AUTHORIZED US TO SUBMIT A COUNTEROFFER TO YOU BY WHICH THE GOVERNMENT WILL REFUND 50 PERCENT OF THE $317.18 DEDUCTED FROM AMOUNTS OTHERWISE DUE TO COVER THE ADMINISTRATIVELY DETERMINED INDEBTEDNESS RESULTING FROM THE LOSS OF FOUR BALES OF RUBBER, PLUS UNEARNED FREIGHT CHARGES, ON THE SHIPMENT MOVING UNDER BILL OF LADING NO. GS-1224784, IF YOU AGREED TO ASSUME LIABILITY FOR 50 PERCENT OF THE TOTAL LOSS TO THIS SHIPMENT.

IN YOUR LETTER YOU AGREE WITH THE ACTION TAKEN BY THE DEPARTMENT OF JUSTICE AS TO THE SHIPMENTS MOVING UNDER BILLS OF LADING NOS. GS 1223508 AND GS-1224713, BUT STATE THAT THE COUNTEROFFER MADE WITH RESPECT TO THE LOSS IN CONNECTION WITH BILL OF LADING NO. GS-1224784 IS UNACCEPTABLE AND REQUEST THAT FURTHER CONSIDERATION BE GIVEN TO YOUR OFFER OF $118.94 TO SETTLE THE LOSS ON THIS SHIPMENT.

THE RECORD SHOWS THAT THE INDEBTEDNESS OF $317.18 IN QUESTION CONSISTS OF $312.50, THE VALUE OF FOUR BALES OF CRUDE RUBBER, PLUS $4.68 AS UNEARNED FREIGHT ON A SHIPMENT MOVING UNDER BILL OF LADING NO. GS-1224784 FROM PIER 19, STATEN ISLAND, NEW YORK IN CAR NO. AA 1390. THE SHIPMENT WAS LOADED BY YOU AND YOUR LOADING TALLY DATED OCTOBER 30, 1958, INDICATES THAT 180 BALES OF GRADE IRSS, C/M 23976-1, CRUDE RUBBER WERE COUNTED. YOU APPLIED SEALS NOS. JCL-A-101086 AND JCL-A-101087 AND UPON DELIVERY THE SEALS WERE INTACT. THE BALES WEIGHED APPROXIMATELY 250 POUNDS EACH. THE CONSIGNEE UNLOADED THE SHIPMENT AND AS EVIDENCED BY THE UNLOADING TALLY DATED NOVEMBER 4, 1958, ONLY 176 BALES WERE OUTTURNED. IN OFFERING TO SETTLE THIS CLAIM ON A COMPROMISE BASIS, YOU TAKE THE POSITION THAT YOUR RECORDS INDICATE THAT ONE BALE OF RUBBER, GRADE IRSS, C/M 26089-2, CHECKED OVER FROM CAR NO. B AND 0-470539 ON A SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING 85469 WHICH SHOULD BE APPLIED TO THE SHORTAGE IN CAR NO. AA-1390, THEREBY REDUCING THE SHORTAGE TO THREE BALES. UNDER SUCH PROPOSAL YOU INDICATE YOU WOULD ACCEPT LIABILITY FOR 50 PERCENT OF THREE-FOURTHS OF THE TOTAL INDEBTEDNESS, OR $118.94.

WE REFERRED YOUR COMPROMISE OFFERS TO THE ATTORNEY GENERAL BECAUSE THEY PERTAINED TO MATTERS WHICH HE, THROUGH THE DEPARTMENT OF JUSTICE, MIGHT BE CALLED UPON TO DEFEND THE GOVERNMENT'S ACTION IN THE COURTS. WE DO NOT KNOW THE REASONS FOR THE ATTORNEY GENERAL'S REJECTION OF YOUR COMPROMISE OFFER OF $118.94 AND WE CAN ONLY ADVISE OF THE POINTS CONSIDERED BY OUR OFFICE IN REPORTING YOUR OFFER TO THE DEPARTMENT OF JUSTICE.

WE QUESTIONED THE PROPRIETY OF THE METHOD USED BY YOU IN ATTEMPTING TO MITIGATE THE INDEBTEDNESS IN QUESTION SINCE IT IS OBVIOUS FROM THE DIFFERENCE IN THE GRADE MARKINGS OF THE RUBBER AND THE CARS INVOLVED THAT THERE WAS NO CONNECTION BETWEEN THE OVERAGE WITH WHICH YOU WISH TO CREDIT YOURSELF AND THE SHORTAGE ON THE SHIPMENT UNDER BILL OF LADING NO. GS- 1224784. THE RUBBER INVOLVED IN THE OVERAGE MIGHT HAVE BEEN OF DIFFERENT WEIGHT AND VALUE THAN THAT INVOLVED IN THE SHORTAGE. MOREOVER IT MIGHT DEVELOP THAT THE REPORTED OVERAGE FOR WHICH YOU SEEK CREDIT REPRESENTS A SHORTAGE ON ANOTHER SHIPMENT, OR THAT IT WAS THE RESULT OF AN ERROR IN COUNT OR TALLY AT POINT OF ORIGIN OR DESTINATION AND THUS WAS NOT A TRUE INDICATION OF THE RECEIPT AT DESTINATION OF MORE PROPERTY THAN THAT WHICH WAS ACTUALLY SHIPPED AT POINT OF ORIGIN.

THE ACCEPTANCE OR REJECTION OF AN OFFER IN COMPROMISE OF THIS NATURE IS A MATTER WITHIN THE DISCRETION OF THE DEPARTMENT OF JUSTICE. THAT DEPARTMENT IS NOT BOUND BY OUR VIEWS IN REFERRING SUCH OFFERS FOR CONSIDERATION. THEREFORE, AS INDICATED ABOVE, WE ARE UNABLE TO ADVISE YOU DEFINITELY AS TO THE REASONS YOUR OFFER WAS REJECTED, HOWEVER, SUCH REJECTION IS CONCLUSIVE ON OUR OFFICE. ACCORDINGLY, THERE IS NO PROPER BASIS FOR OUR OFFICE TO GIVE FURTHER CONSIDERATION TO YOUR OFFER OF $118.94 TO SETTLE THE LOSS OF GOVERNMENT PROPERTY IN QUESTION.

THE REJECTION OF YOUR COMPROMISE OFFER DOES NOT, OF COURSE, PRECLUDE COURT ACTION UNDER 28 U.S.C. 1346 TO RECOVER ANY PART OF THE AMOUNT COLLECTED BY DEDUCTION. IF, HOWEVER, UPON FURTHER CONSIDERATION, YOU DECIDE TO ACCEPT THE DEPARTMENT OF JUSTICE'S COUNTEROFFER, OUR TRANSPORTATION DIVISION SHOULD BE ADVISED AND REQUESTED TO REFUND 50 PERCENT OF THE SUM $317.18 DEDUCTED IN FULL SETTLEMENT OF THIS CLAIM.