B-126581, SEP. 9, 1957

B-126581, SEP. 9, 1957

TO AUDITOR OF FREIGHT RECEIPTS, ILLINOIS CENTRAL RAILROAD:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 8, 1957, AND AUGUST 13, 1957, CRB-CL-619-R, REQUESTING REVIEW OF THE ACTION OF OUR TRANSPORTATION DIVISION IN DISALLOWING PAYMENT OF YOUR BILL NO. CRB-CL 619, IN THE AMOUNT OF $935, COVERING DEMURRAGE CHARGES WHICH ALLEGEDLY ACCRUED AT GULFPORT, MISSISSIPPI, DURING THE PERIOD FROM JUNE 1951 TO MAY 1952.

IT IS YOUR CONTENTION THAT YOUR CLAIM WAS NOT GIVEN FULL AND PROPER CONSIDERATION, IN THAT THE CERTIFICATION OF THE PORT TRANSPORTATION OFFICER ON THE DETAILED STATEMENT ATTACHED TO YOUR BILL NO. CRB-CL-619, SHOWING CARS CONSTRUCTIVELY PLACED AT GULFPORT, MISSISSIPPI, DURING THE PERIOD FROM JUNE 1951 TO MAY 1952, WAS NOT GIVEN DUE WEIGHT; THAT YOUR CLAIM WAS FULLY SUPPORTED; AND THAT THE CARRIERS WERE NOT LIABLE FOR THE DELAY IN UNLOADING THE CARS IN QUESTION, AS ALL CARS WERE CONSTRUCTIVELY PLACED ON THE TRACKS OF THE UNITED STATES GOVERNMENT.

THE RECORD SHOWS THAT THE CARS IN QUESTION CONTAINED LUMBER, CROSS TIES, PILING AND POLES SHIPPED TO GULFPORT, MISSISSIPPI, FOR EXPORT,CONSIGNED TO THE PORT TRANSPORTATION OFFICER, NEW ORLEANS PORT OF EMBARKATION, GULFPORT, MISSISSIPPI, OR THE PORT TRANSPORTATION OFFICER, NEW ORLEANS PORT OF EMBARKATION, CARE OF THE GULFPORT PORT COMMISSION, GULFPORT, MISSISSIPPI, AND THAT OTHER SHIPMENTS WERE CONSIGNED TO THE PORT TRANSPORTATION OFFICER AND THE GULFPORT PORT COMMISSION JOINTLY. THE PORT COMMISSION WAS ACTING AS THE UNLOADING AGENCY FOR THIS EXPORT TRAFFIC IN ACCORDANCE WITH AN INFORMAL AGREEMENT BETWEEN IT AND THE NEW ORLEANS PORT OF EMBARKATION WHEREBY THE PORT COMMISSION WAS INSTRUCTED TO HAVE ALL CARS FOR WHICH THE NEW ORLEANS PORT OF EMBARKATION HAD PORT OPERATIONS RESPONSIBILITY ORDERED INTO THE PORT COMMISSION'S FACILITIES UPON ARRIVAL, AND TO UNLOAD SUCH CARS AS SOON AS POSSIBLE. THIS AGREEMENT APPARENTLY WAS NOT FORMALIZED, AS THE SECOND TRANSPORTATION ZONE OFFICE, U.S. ARMY, HAS REPORTED ALL PARTIES CONCERNED WERE OF THE UNDERSTANDING THAT THE SHIPMENTS WERE TO HAVE BEEN HANDLED ON THE BASIS OF EXISTING TARIFFS, I.E., THE UNLOADING CHARGES WOULD BE FOR THE ACCOUNT OF THE RAIL CARRIER WHO IN TURN WOULD BILL THE NEW ORLEANS PORT OF EMBARKATION FOR SUCH CAR UNLOADING CHARGES.

YOUR CLAIM FOR $935 REPRESENTS A REVISED STATEMENT OF DEMURRAGE CHARGES ARISING FROM THE CONSTRUCTIVE PLACEMENT OF CARS CONSIGNED TO THE PORT TRANSPORTATION OFFICER, NEW ORLEANS PORT OF EMBARKATION, GULFPORT, MISSISSIPPI. THE CHARGES ARE BASED ON A RATE OF $2.20 PER DAY, PUBLISHED IN SOUTHERN FREIGHT TARIFF BUREAU PORT CHARGES TARIFFS 326-I, I.C.C. NO. 1046, AND 326-J, I.C.C. NO. 1262. ITEM 168, OF THESE TARIFFS, CONCERNING CONSTRUCTIVE PLACEMENT OF CARS, READS AS OLLOWS:

"WHEN DELIVERY OF A CAR CONTAINING FREIGHT FOR EXPORT, COASTWISE OR INTERCOASTAL MOVEMENT CANNOT BE MADE BECAUSE OF INABILITY OF THE CONSIGNEE, EXPORTER OR STEAMSHIP LINE TO RECEIVE IT, OR BECAUSE OF ANY OTHER CONDITION ATTRIBUTABLE TO CONSIGNEE, EXPORTER OR STEAMSHIP LINE, THE CAR WILL BE HELD AT THE NEAREST AVAILABLE POINT IF IT CANNOT REASONABLY BE ACCOMMODATED AT THE PORT. WRITTEN NOTICE, STATING AT WHAT POINT THE CAR IS HELD AND THAT THE RAILROAD IS UNABLE TO DELIVER, WILL BE SENT OR GIVEN THE CONSIGNEE PROMPTLY AFTER ARRIVAL OF CAR AT POINT WHERE IT IS HELD AND THIS NOTICE SHALL SERVE FOR THE PURPOSE OF COMPUTING DEMURRAGE CHARGES. WHEN THE CAR IS LATER MOVED FROM THE PLACE WHERE HELD TO THE PORT, NEITHER THE TIME CONSUMED IN SUCH MOVEMENT NOR ANY OTHER TIME FOR WHICH THE RAILROAD IS RESPONSIBLE WILL BE COMPUTED AGAINST THE SHIPMENT.'

IT IS OBSERVED THAT IN ORDER FOR THE DELIVERING CARRIER TO CONSTRUCTIVELY PLACE A CAR CONTAINING EXPORT FREIGHT DELIVERY OF THE CAR MUST BE PREVENTED BY EITHER THE INABILITY OF THE CONSIGNEE TO RECEIVE, OR BECAUSE OF ANY OTHER CONDITION ATTRIBUTABLE TO THE CONSIGNEE.

THE REPORT FROM THE SECOND TRANSPORTATION ZONE OFFICE INDICATES THAT THE FACILITIES AT GULFPORT MISSISSIPPI, WOULD PERMIT THE HANDLING OF 190 RAIL CARS AT ANY ONE TIME, AND ACCORDING TO A STATEMENT OF MR. AL S. JOHNSON OF THE GULFPORT COMMISSION, WHICH WAS VERIFIED BY THE AGENTS OF THE LOUISVILLE AND NASHVILLE AND ILLINOIS CENTRAL RAILROADS, AT NO TIME WERE THE ENTIRE FACILITIES USED, AND AT ANY TIME DURING THIS PERIOD THE GULFPORT COMMISSION COULD HAVE RECEIVED ANY AND ALL CARS WHICH WERE ON CONSTRUCTIVE PLACEMENT. THE MOVEMENTS CONTROL OFFICER OF THE NEW ORLEANS PORT OF EMBARKATION ADVISED THE CHIEF OF TRANSPORTATION, U.S. ARMY, THAT IN SEPTEMBER 1951 THE FIELD AGENT OF THE NEW ORLEANS OFFICE OF THE INTERSTATE COMMERCE COMMISSION, BUREAU OF SAFETY, MADE AN ON-THE-SPOT INVESTIGATION AND DETERMINED THAT ANY UNDUE DETENTION WAS EITHER THE FAULT OF THE CARRIERS OR THE GULFPORT PORT COMMISSION, AND WAS BEYOND THE CONTROL OF THE NEW ORLEANS PORT OF EMBARKATION.

THE CERTIFICATION OF LT. COL. ROBERT WUCHER, JR., T.C., PORT TRANSPORTATION OFFICER, NEW ORLEANS PORT OF EMBARKATION, APPEARING ON YOUR STATEMENT SHOWING CARS CONSTRUCTIVELY PLACED DURING THE PERIOD FROM JUNE 1951 TO MAY 1952, SUBMITTED IN SUPPORT OF YOUR BILL NO. CRB CL-619, APPARENTLY WAS BASED ON THE ABOVE INFORMATION. THIS CERTIFICATION READS AS FOLLOWS: "I CERTIFY THAT THE CARS SHOWN ON THIS BILL WERE HELD BETWEEN THE DATES AS STATED, THAT THERE WAS NO DELAY IN RETURNING CARS TO CARRIER AS ALL CARS WERE UNLOADED PROMPTLY UPON PLACEMENT, BUT THAT DETENTION WAS DUE TO CARRIER'S DELAY IN DELIVERING CARS AT DESTINATION.' THE REPORT FROM THE NEW ORLEANS PORT OF EMBARKATION TO THE SECOND TRANSPORTATION ZONE OFFICE ALSO INDICATES THAT THE NEW ORLEANS PORT OF EMBARKATION WAS UNABLE TO CERTIFY PAYMENT OF YOUR BILL "* * * IN VIEW OF THE FACT THAT THERE IS NO EVIDENCE TO INDICATE THE DETENTION WAS CAUSED BY ANY ACT OR FAILURE ON THE PART OF THE ARMY.' THESE STATEMENTS FROM THE ADMINISTRATIVE OFFICE DO NOT QUESTION THE AMOUNT OF YOUR CHARGES, BUT RAISE A QUESTION AS TO THE LIABILITY OF THE GOVERNMENT FOR THE PAYMENT OF THESE DEMURRAGE CHARGES, PARTICULARLY WHEN THESE FACTS ARE CONSIDERED WITH THE PROVISIONS OF ITEM 168 OF PORT CHARGES TARIFFS 362-I AND 362-J. THE FACTS IN THE RECORD HERE CLEARLY INDICATE THAT THE CONSIGNEE WAS ABLE TO RECEIVE ALL CARS CONSIGNED TO GULFPORT, MISSISSIPPI, AND WAS NOT IN ANY OTHER WAY RESPONSIBLE FOR THE DELAY, AND THEREFORE IS NOT LIABLE FOR DEMURRAGE ON THE CARS CONSTRUCTIVELY PLACED. SEE, IN THIS CONNECTION, NORTHERN WISCONSIN PRODUCE COMPANY V. MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RY. CO., 21 I.C.C. 197; MILNE LUMBER CO. V. NEW YORK CENTRAL R.CO., 167 I.C.C. 743, 747; NATIONAL TRUCKING AND STORAGE CO. V. PENNSYLVANIA R.CO., 270 I.C.C. 539.

THE EVIDENCE WHICH YOU HAVE SUBMITTED IS NOT SUFFICIENT TO SUPPORT YOUR DEMURRAGE CLAIM, SINCE IT DOES NOT ESTABLISH WITH REASONABLE CERTAINTY THAT THE GOVERNMENT IS LIABLE IN ANY RESPECT FOR ANY OF THE DELAY IN UNLOADING THE CARS FOR WHICH YOU NOW CLAIM DEMURRAGE. THE BURDEN IS ON A CLAIMANT TO FURNISH THE NECESSARY EVIDENCE TO CLEARLY AND SATISFACTORILY ESTABLISH ITS CLAIM AND THE LEGAL LIABILITY OF THE UNITED STATES FOR PAYMENT OF THE CLAIM. 23 COMP. GEN. 907; 18 ID. 980; 17 ID. 831. IN VIEW OF THE PRESENT RECORD, THE REJECTION OF THIS CLAIM, INVOLVING DOUBTFUL ISSUES OF FACT AND LAW, WAS A PROPER EXERCISE OF OUR DUTIES UNDER THE BUDGET AND ACCOUNTING ACT OF 1921, 42 STAT. 24, AS AMENDED, 31 U.S.C. 71. IT IS NOTED, THAT THE RESOLUTION OF SUCH CLAIMS HAS TRADITIONALLY BEEN LEFT TO THE COURTS. CHARLES V. UNITED STATES, 19 C.CLS. 316, 319; LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291; 31 COMP. GEN. 340; 23 ID. 907; 18 ID. 111.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM ON BILL NO. CRB-CL-619 IS SUSTAINED.