Alice Daniel, Department of Justice, B-190655
| Decision Date | 02 April 1980 |
| Docket Number | B-190655 |
| Parties | ALICE DANIEL, DEPARTMENT OF JUSTICE: |
| Court | Comptroller General of the United States |
Office of general counsel subject: bowman transportation, Inc. v United states; court of claims no. 298-78; your reference ad:dmc:jcranney:mcw 154-298-78
We have reconsidered our position concerning plaintiff's offer to settle this case for $15, 786.23 (two-thirds of the amount deducted from the carrier) and believe that despite the information contained in your letter of March 17, 1980, our recommendation of January 15, 1980, for rejection was sound however, in view of the change of position and attitude of the government's potential witnesses with respect to the limited use actually made of the nuts and clamps by the marine corps, we would not object to settlement at this time.
Our original recommendation to reject the offer was based on representations then made by the witnesses you recently contacted. These representations were disclosed in our decision, b-190655, February 17, 1978, and in our litigation report of August 3, 1978. The witnesses stated that the items were desirable and useful to the marine corps museum for the purpose of restoring museum pieces; and that the value of the lost items is the value shown on the invoice transfer document; i.e., the requisition and invoice/shipping document (DD form 1149).
We accepted the factual representations and agreed with their opinion on the law because of the further representation that there was no market for the items lost. It has been our position all along that in the absence of a market value the measure of damages is their actual value as shown on the catalog/invoice.
As we explained in our letter of January 15, 1980, 49 U.S.C. Sec 20(11) holds the carrier liable for the full, actual, loss and we believe there is a substantial basis for the argument that whether the government used 160 each of the clamps and nuts, or all of the 54, 511 clamps and 6, 890 nuts, is of no concern to the carrier. For example, we find in United States v. N.Y., N.H. & H. R.R. Co., 211 F.2d 404 (2nd Cir. 1954), the principle that special circumstances of one party (the government-shipper) does not vary the carrier's duty to transport nor its liability under 49 U.S.C. Sec. 20(11). In that case the carrier argued, unsuccessfully, that since the damaged property was being sent to a hospital as a gift, the government was entitled only to nominal damages. The...
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