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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER OF MAY 17. THE SHIPMENT WAS TENDERED TO MISSOURI-OKLAHOMA EXPRESS FOR TRANSPORTATION BY THAT CARRIER AND UNION FREIGHTWAYS TO DESTINATION. BEFORE THE PROPERTY WAS DELIVERED TO YOUR CLIENT. FOUR OF THE ENGINES IN THE SHIPMENT WERE DAMAGED IN AN UNDERPASS COLLISION AND WERE RETURNED TO ORIGIN BY MISSOURI-OKLAHOMA EXPRESS. THIS RETURN WAS AUTHORIZED BY A GOVERNMENT REPRESENTATIVE IN ORDER THAT REPAIR OF THE ENGINES COULD BE MADE AT THE ENGINE REPAIR FACILITIES MAINTAINED AT TINKER FIELD. IT IS YOUR CONTENTION THAT AUTHORIZATION OF THE RETURN OF THESE ENGINES TO ORIGIN AMOUNTED TO A MODIFICATION OF THE ORIGINAL CONTRACT OF CARRIAGE AND DISCHARGED YOUR CLIENT FROM THE LIABILITY IMPOSED UPON DELIVERING CARRIERS BY SECTIONS 20 (11) AND 219 OF THE INTERSTATE COMMERCE ACT.

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B-115001, AUG. 21, 1956

TO HOMER S. CARPENTER, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1956, AND TO YOUR PETITION SEEKING RECONSIDERATION OF THE ADMINISTRATIVE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN DEDUCTING FROM AMOUNTS OTHERWISE DUE YOUR CLIENT, UNION FREIGHTWAYS, THE SUM OF $3,525.88, IN ORDER TO REIMBURSE THE UNITED STATES FOR DAMAGE TO A SHIPMENT OF AIRPLANE ENGINES CONSIGNED TO FORT CROOK, NEBRASKA, UNDER BILL OF LADING AF 21252, IN MAY 1950. THE SHIPMENT WAS TENDERED TO MISSOURI-OKLAHOMA EXPRESS FOR TRANSPORTATION BY THAT CARRIER AND UNION FREIGHTWAYS TO DESTINATION. EN ROUTE, BEFORE THE PROPERTY WAS DELIVERED TO YOUR CLIENT, FOUR OF THE ENGINES IN THE SHIPMENT WERE DAMAGED IN AN UNDERPASS COLLISION AND WERE RETURNED TO ORIGIN BY MISSOURI-OKLAHOMA EXPRESS. THIS RETURN WAS AUTHORIZED BY A GOVERNMENT REPRESENTATIVE IN ORDER THAT REPAIR OF THE ENGINES COULD BE MADE AT THE ENGINE REPAIR FACILITIES MAINTAINED AT TINKER FIELD. IT IS YOUR CONTENTION THAT AUTHORIZATION OF THE RETURN OF THESE ENGINES TO ORIGIN AMOUNTED TO A MODIFICATION OF THE ORIGINAL CONTRACT OF CARRIAGE AND DISCHARGED YOUR CLIENT FROM THE LIABILITY IMPOSED UPON DELIVERING CARRIERS BY SECTIONS 20 (11) AND 219 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 20 (11) AND 319. YOU ADMIT THAT IF ALL THE ENGINES HAD BEEN TRANSPORTED TO DESTINATION UNION FREIGHTWAYS WOULD HAVE BEEN LIABLE FOR THE DAMAGE TO THE FOUR ENGINES.

THE CONTRACT OF CARRIAGE BETWEEN THE INITIAL CARRIER AND THE UNITED STATES PROVIDED, AMONG OTHER THINGS, THAT THE PROPERTY COVERED THEREBY WOULD BE FORWARDED BY THE INITIAL CARRIER AND CONNECTING LINES TO DESTINATION AND THERE DELIVERED IN GOOD ORDER AND CONDITION TO THE CONSIGNEE. THE CONTRACT WAS BREACHED WHEN THE SHIPMENT WAS DAMAGED BECAUSE THE INJURY TO THE SHIPMENT PRECLUDED THE POSSIBILITY OF DELIVERY IN GOOD ORDER AND CONDITION OF ALL THE PROPERTY TO THE CONSIGNEE. THE ACTION OF THE UNITED STATES IN ORDERING THE RETURN OF THE DAMAGED ENGINES TO ORIGIN WAS NOT A MODIFICATION OF THE CONTRACT OF CARRIAGE OR A RELINQUISHMENT OF ANY CONTRACTUAL OR STATUTORY RIGHT BUT AN ACT REQUIRED TO BE TAKEN IN ORDER TO MITIGATE THE DAMAGES CAUSED BY THE INITIAL CARRIER'S NEGLIGENCE.

EXTENSIVE ENGINE REPAIR FACILITIES ARE MAINTAINED AT MARION, OKLAHOMA, AND IT WAS THERE THAT THE DAMAGE COULD BE REPAIRED AT THE LEAST COST AND INCONVENIENCE TO THE GOVERNMENT. HAD THE ENGINES BEEN PERMITTED TO GO THROUGH TO DESTINATION WITH THE BALANCE OF THE SHIPMENT, IT WOULD HAVE BEEN NECESSARY TO RESHIP THE DAMAGED ENGINES FROM FORT CROOK TO MARION. BY RETURNING THE ENGINES TO ORIGIN UPON NOTICE OF THE DAMAGE, THE NEEDLESS TRANSPORTATION OF THE ENGINES FROM THE PLACE OF COLLISION TO FORT CROOK AND FROM THERE BACK TO MARION WAS ELIMINATED AND THE COSTS OF ULTIMATELY PLACING THE REQUIRED NUMBER OF ENGINES IN GOOD ORDER AND CONDITION AT FORT CROOK WERE THEREBY REDUCED. THE DUTY OF AN INJURED PARTY TO MITIGATE THE DAMAGES FLOWING FROM A BREACH OF CONTRACT IS WELL ESTABLISHED. SEE, IN THIS CONNECTION, ST. LOUIS SOUTH WESTERN RY. CO. V. TUCKER, 255 S.W. 553. IT IS DIFFICULT TO SEE HOW AN ACT IN PURSUANCE OF THAT DUTY CAN OPERATE TO RELIEVE FROM LIABILITY A CARRIER ADMITTEDLY LIABLE IF SUCH ACT HAD NOT BEEN UNDERTAKEN.

IN THIS SITUATION WE WOULD NOT BE JUSTIFIED IN DISTURBING THE SETTLEMENT MADE BY THE DEPARTMENT OF THE AIR FORCE IN THE ABSENCE OF A CLEAR SHOWING THAT IT WAS CONTRARY TO LAW. THE PRESENT RECORD DOES NOT ESTABLISH SUCH SHOWING. ACCORDINGLY, SINCE THE ACTION TAKEN IN THIS MATTER DOES NOT APPEAR TO HAVE BEEN ERRONEOUS IT IS SUSTAINED.

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