B-158322, B-158323, SEP. 21, 1966
Highlights
INC.: REFERENCE IS MADE TO LETTER DATED JANUARY 11. THE TRAILER WAS DESTROYED WHILE BEING TRANSPORTED FROM FORT KNOX. 600 FOR LOSS OF THE TRAILER WAS VIEWED AS AT LEAST $400 LESS THAN NECESSARY TO DISCHARGE YOUR LIABILITY. WHILE THE ACTION OF THE ARMY IN MAKING THIS DEDUCTION APPEARS TO HAVE BEEN EQUITABLE. THE RELEASE (SUBROGATION RECEIPT) EXECUTED BY THE CLAIMANT IN YOUR FAVOR WILL BE GIVEN EFFECT AS RELIEVING YOU OF FURTHER LIABILITY. THAT YOU CLAIMED AND WERE PAID THE AMOUNT OF $108.90 IN TRANSPORTATION CHARGES FOR THE MOVEMENT DURING WHICH THIS TRAILER WAS DAMAGED BEYOND REPAIR. IT IS WELL SETTLED THAT WHEN A TRAILER IS SO BADLY DAMAGED IN TRANSIT THAT IT CANNOT BE DELIVERED IN SPECIE THE FREIGHT CHARGES ARE NOT PAYABLE.
B-158322, B-158323, SEP. 21, 1966
TO MORGAN DRIVE AWAY, INC.:
REFERENCE IS MADE TO LETTER DATED JANUARY 11, 1966, MORGAN DRIVE AWAY FILE 5/20-50739-74, REQUESTING REVIEW OF THE DEPARTMENT OF THE ARMY'S DEDUCTION OF $400 FROM AMOUNTS OTHERWISE DUE TO EFFECT SETTLEMENT OF A CLAIM ASSERTED AGAINST YOU FOR THE DESTRUCTION OF A HOUSE TRAILER BELONGING TO SPECIALIST 5TH CLASS MONTY R. FULKERSON. THE TRAILER WAS DESTROYED WHILE BEING TRANSPORTED FROM FORT KNOX, KENTUCKY, TO LOUISVILLE, KENTUCKY, IN MARCH 1965.
THE DEPARTMENT MADE THE DEDUCTION TO RECOVER THE SAME AMOUNT PAID TO SPECIALIST FULKERSON IN ALLOWANCE OF HIS CLAIM FOR ADDITIONAL DAMAGES ARISING OUT OF THE ACCIDENT, ON THE BASIS THAT YOUR DELAYED HANDLING OF THE MATTER AND BELATED PAYMENT OF LESS THAN THE FAIR MARKET VALUE OF THE ARTICLE CONSTITUTED AN UNFAIR COURSE OF DEALING WITH THE CLAIMANT. IN THE CIRCUMSTANCES, THE SETTLEMENT OF $1,600 FOR LOSS OF THE TRAILER WAS VIEWED AS AT LEAST $400 LESS THAN NECESSARY TO DISCHARGE YOUR LIABILITY.
WHILE THE ACTION OF THE ARMY IN MAKING THIS DEDUCTION APPEARS TO HAVE BEEN EQUITABLE, THE RELEASE (SUBROGATION RECEIPT) EXECUTED BY THE CLAIMANT IN YOUR FAVOR WILL BE GIVEN EFFECT AS RELIEVING YOU OF FURTHER LIABILITY. THEREFORE, THE DEDUCTION OF $400 MAY BE CREDITED TO YOU.
WE NOTE, HOWEVER, THAT YOU CLAIMED AND WERE PAID THE AMOUNT OF $108.90 IN TRANSPORTATION CHARGES FOR THE MOVEMENT DURING WHICH THIS TRAILER WAS DAMAGED BEYOND REPAIR. IT IS WELL SETTLED THAT WHEN A TRAILER IS SO BADLY DAMAGED IN TRANSIT THAT IT CANNOT BE DELIVERED IN SPECIE THE FREIGHT CHARGES ARE NOT PAYABLE. SEE NATIONAL TRAILER CONVOY, INC. V. UNITED STATES, 345 F.2D 573 (1965).
ACCORDINGLY, WE ARE TODAY AUTHORIZING OUR TRANSPORTATION DIVISION TO ALLOW CREDIT TO YOUR COMPANY FOR THE $400 DEDUCTED ADMINISTRATIVELY, LESS THE FREIGHT CHARGES ERRONEOUSLY PAID. THE REMAINDER, $291.10, WILL BE APPLIED TO YOUR INDEBTEDNESS FOR UNEARNED TRANSPORTATION CHARGES IN THE AMOUNT OF $1,951.50 IN CONNECTION WITH THE CLAIM FOR DAMAGE TO THE TRAILER OF SERGEANT CHOYCE MCDOWELL, MORGAN DRIVE AWAY FILE 10/25 1216-63-58. SEE OUR LETTER TO YOU DATED JUNE 30, 1966, B 158322. AFTER APPLICATION OF THE ABOVE CREDIT OF $291.10 THERE REMAINS DUE THE UNITED STATES THE SUM OF $1,660.40, WHICH SHOULD BE FORWARDED PROMPTLY TO AVOID COLLECTION BY OTHER MEANS.