#### AMERICAN RAILWAY EXPRESS CO. v. THE UNITED STATES 1

[No. D-792.

Decided November 16, 1926]

*Qovermnent till of lading; delivery to other than consignee; theft of funds.*— Where a Government bill of lading provides that the carrier shall make delivery of currency transported thereunder to the person named therein, on board a designated ship, who is a paymaster of the Navy, and in his absence the carrier delivers the currency to a yeoman on board the said ship, who has no authority to receive the same and steals a part thereof, the carrier is liable to the Government for the part so stolen and not afterwards recovered.

*616*Sarnie; 'limitation in MU of lading against suit for loss.-*— In the absence of statutory authority an agent of the Government can not, by stipulation in a bill of lading, limit the right of the Government to sue for loss of a shipment irrespective of the responsibility therefor. See *Missouri-Kansas-Texas R. R. Go. of Texas*v. *United States, ante,*p. 373.

*The Reporter’s*statement of tlie case:

*Mr. IT. Prescott Gatley*for the plaintiff. *Messrs. Benjamin 8. Minor, Hugh B. Rowland,*and *Arthur P. Drury*were on the brief.

*Messrs. James J. Lenihan*and *Louis R. Mehlinger,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. The American Railway Express Co. is a corporation, duly organized under the laws of the State of Delaware, engaged generally throughout the United States in the business of carrying and transporting and forwarding by rail-íoads, steamboats, ships, canals, stages, and other means of transportation, goods, wares, merchandise, money, bills, notes, bullion, packages, parcels, and movable valuables of any description, over and upon such lines and routes as it may from time to time establish, and in and between the points, places, or stations at which it may from time to time establish and continue agencies.

II. Pursuant to the provisions of its articles of incorporation, and in the exercise of the powers conferred thereby, and in accordance with the provisions of the interstate commerce act and acts amendatory thereof and supplementary thereto, and the laws of the United States, applicable to the business so as aforesaid conducted by it, and the rules and regulations promulgated and issued by the Interstate Commerce Commission under authority of such laws, and the official express classification and tariffs duly established, filed with the Interstate Commerce Commission, and posted and published as required by law, said American Railway Express Co. has from time to time, since its incorporation, and from thence hitherto, for and in consideration of certain charges to be paid to it for its services rendered in that behalf, transported and forwarded certain moneys, bullion, packages, and the like for and on behalf of the various executive *617departments of the United States Government, to various named and designated consignees.

In accordance with the custom and practice prevailing with respect to the forwarding and transporting of moneys, bullion, packages, and the like by said American Railway Express Co., for the United States and the executive departments thereof, the original Government bill of lading on which such shipment is made is forwarded by mail or otherwise by the department to the consignee named therein, and when accomplished by the signature of the consignee, is by him in due course returned to the American Railway Express Co. for presentation by it to such department as a basis for the collection of the transportation charge. This custom and practice was followed in connection with the hereinafter-described shipment, except the accomplishment of the original bill of lading.

III. On, to wit, the 23d day of December, 1920, said American Railway Express Co. accepted for transportation from the then Treasurer of the United States at Washington, D. C., three certain packages containing, respectively, $8,000, $40,000, and $72,000 of currency, in all aggregating $120,-000, which said packages ivere consigned to Lieut. W. A. Ruck, S. C., United States Navy, U. S. S. Satterlee, United States Navy Yard, Norfolk, Ya., on Government bill of lading No. T-268103, of which the following is a true copy:

Form 2149

Form approved by Comptroller of the Treasury June 19, 1915

No. T-368103 Supply Corps

U. S. Treasury DepaetmeNt Office of the

TEEASUEEE OP THE UNITED STATES

(Bureau or Service)

Washington, D. C.

Government bill of lading.

Original.

Washington, *D.*<7., *December 23rd, 1920.*

Received from the Treasurer of the United States by the American Railway Express Company the public property hereinafter described, in apparent good order and condition *618(contents and value unknown), to be forwarded subject to conditions stated on the reverse hereof, from Washington, D. C., to Norfolk, Va., by said company and connecting lines, there to be delivered in like good order and condition to Lt. W. A. Buck, SC. TJSN. USS. *Satterlee,*US. Navy Yard.

*Number and*

*Marks description Contents*

*of packages*

Lt. W. A. Buck, SO. USN_3 pkgs 1 pkg. currency $8, 000. 00

USS. Satterlee_1 pkg. currency 40,000.00

U. S. Navy Yard, Norfolk, Va_1 pkg. currency 72, 000. 00

120, 000. 00

*See Instructions on Reverse Hereof*

American Railway Express Co.

PerW. L. Wright, *Agent.*

*Instructions for Billing*

1. Consignee should pay no charges on this shipment.

2. Charges to be billed against Bureau Supplies and Accounts, Navy Dept., on authorized Government voucher form, attaching this bill of lading as a supporting paper.

*Administrative Directions*

1. Government property will be transported on the prescribed form of Government bill of lading (original, memorandum, and shipping order), which will be identified by serial numbers. .

2. Through bills of lading will be issued in all instances between initial and ultimate points, except when rates more advantageous to the Government may be otherwise secured.

3. When shipments are made under contract or special rates, notation of such fact should appear on the face of bills of lading.

4. Officers charged with the duty of providing or securing Government transportation should familiarize themselves with land-grant railroads in order that shipments may be made at the lowest rates available to the Government by the use of such lines or lines equalizing rates therewith.

.5. Bills of lading must describe shipments of articles by their commercial names, giving separately such weights, dimensions, and manner of packing as may be necessary to ascertain classifications and rates and to enable recovery in case of loss or damage.

6. Public property may be delivered by any Government officer or agent to the Quartermaster’s Department of the *619Army, which will ship the same under its regulations. (23 Stat. 111.)

1.If the number of articles to be shipped be too great for the blank form (original, memorandum, and shipping-order), extra sheets of the prescribed form should be used, and so attached and designated as to form but one bill of lading, under one number.

8. A voucher when submitted for settlement shall cover charges to one office or service only. The name of the office is inserted at the foot of the bill of lading. Correspondence regarding transportation accounts shall be addressed to the particular office or service and reference made to the serial numbers of the Government bills of lading included in the company’s bill.

*Re fort of*Loss, Damage, *or Shrinkage*

Explanation regarding loss, damage, or shrinkage to be made by consignee, who will state all the facts available concerning the nature or extent of the loss, damage, or shrinkage, and how it occurred.

The within shipment was received with the following loss, damage, or shrinkage:

(Consignee.)

General Conditions and Instructions

*Conditions*

It is mutually agreed and understood between the United States and carriers who are parties to this bill of lading that—

1. Prepayment of charges shall in no case be demanded by carrier, nor shall collection be made from consignee. On presentation to the office indicated on the face hereof of this bill of lading, properly accomplished, attached to freight voucher prepared on the authorized Government form, payment will be made to the last carrier, unless otherwise specifically stipulated.

2. Unless otherwise specifically provided hereon this bill of lading is subject to the same rules and conditions as govern commercial shipments made on the usual forms provided therefor by the carrier.

3. Shipment made upon this bill of lading shall take no higher rate than provided for shipments made upon the uniform or standard bill of lading or standard receipts.

*6204. No charge shall be made by any carrier for the execution and presentation of bills of lading in manner and form as provided by the instructions hereon.

5. This shipment is made at the restricted or limited valuation specified in the tariff or classification at or under which the lowest rate is available unless otherwise indicated on the face hereof.

*Instructions*

1. Erasures, interlineations, or alterations in bills of lading must be authenticated and explained by the person making them.

2. Shipping order, original bill of lading, and memorandum bill of lading should be used in making a shipment. Only one original bill of lading will be issued for a single shipment. The shipping order should be furnished the initial carrier. The original bill of lading and memorandum copies should be signed by the agent of the receiving carrier,, returned to the consignor, and the original promptly mailed to the consignee. The consignee on receipt of shipment will sign the consignee’s certificate on the original bill of lading and surrender the bill of lading to the last carrier. The bill of lading then becomes the evidence upon which settlement for the service will be made. Memorandum cojfies of bills of lading may be used as administrative officers direct.

3. In the absence of the consignee, or on his failure to receipt, the person receipting will certify that he is duly authorized to do so, reciting such authority.

4. In no case will a second bill of lading be issued for any shipment, nor will a bill of lading be issued after the transportation has been performed. In case the bill of lading has been lost or destroyed the carrier will furnish with its freight bill to the officer charged with the settlement of the account a certificate, in duplicate, certifying over the signature of the proper officer of the carrier the weight and description of the property transported, giving number,, date, and place of issue of the bill of lading therefor, and that said bill of lading is not in its possession or can not be located, and that if same should later be found it will be surrendered at once to the proper officer of the United States and no claim made thereon.

On receipt of such certificate of loss of bill of lading the administrative officer will, if his records show that payment of the transportation charges has not been made, call upon the issuing officer to furnish a certificate of shipment show*621ing the same information as given on the bill of lading; this certificate to be forwarded by the issuing officer to the consignee, who will complete the certificate showing whether the property was received in good order and condition and the weight thereof on receipt. This completed certificate will be returned to the administrative officer and settlement will be made on the certificate of shipment in lieu of the original bill of lading. Should the original bill of lading be located after settlement has been made on the certificate, it will be forwarded to the auditor for the department concerned and filed with the original voucher.

5. To insure prompt delivery of property, in the absence of the bill of lading, *the consignee may give to- the carrier a receipt for the property actually delivered,*which will state that it is given because the bill of lading has not come to hand. On the recovery of the bill of lading, or when the certificate provided for above shall have been given, a statement will be indorsed on said bill of lading or certificate of the fact of the delivery as per said temporary receipt, and the said temporary receipt will be indorsed with reference to the bill of lading of certificate sufficient to identify the same, and both papers attached and forwarded with the claim for payment thereon.

6. In case of loss or damage to property while in the possession of the carrier, such loss or damage shall, when practicable, be noted on the bill of lading before its accomplishment. All practicable steps shall be taken at that time to determine the loss or damage and the liability therefor, and to collect and transmit to the proper officer, without delay, all evidence as to the same. Should the loss or damage not be discovered until after the bill of lading has been accomplished, the proper officer shall be notified as soon as the loss or damage is discovered, and the agent of the carrier advised immediately of such loss or damage, extending privilege of examination of shipment.

7. Bills must be submitted by the general officers of carriers, and on forms furnished by tlie Government, to be obtained from the Public Printer, Washington, X). C.

The uniform express receipt prescribed by the Interstate Commerce Commission and which has been duly filed with said commission, established, published and posted in conformity with law, and which was in force and effect at the time of said shipment, contained, among others, the following terms and conditions:

“ 1. The provisions of this receipt shall inure to the benefit of and be binding upon the consignor, the consignee, and *622all carriers handling this shipment, and shall apply to any reconsignment, or return thereof.

***** “ 3. Unless caused by its own negligence or that of its agents, the company shall not be liable for— * * *.

“ *c.*Loss of money, bullion, bonds, coupons, jewelry, precious stones, valuable papers, or other matter of extraordinary value, unless such articles are enumerated in the receipt.

“ 4. Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage, or delay caused by- — ■

“ *a.*The act or default of the shipper or owner. *****

“7. Except where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carriers within four months after delivery of the property or, in case of failure to make delivery, then within four months after a reasonable time for delivery' has elapsed; and suits for loss, damage, or delay shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”

IV. Some time prior to 10 o’clock in the morning of December 27,1920, plaintiff’s agent at its Portsmouth, Va., office delivered the said three packages of currency to one George Howell, a money clerk and messenger of the plaintiff, to be transported to the United States Navy Yard at Norfolk, Va., and delivered on board of the U. S. S. *Scotterlee*to Lieut. W. A. Buck, S. C., United States Navy, the consignee named in the bill of lading. About 10 o’clock in the morning of the same day the said George Howell, accompanied by two armed guards also in the employment of the plaintiff, arrived at the navy yard and went aboard the U. S. S. *Satierlee*and informed one James J. McBride, yeoman third class, United States Navy, that he had a shipment of money consigned to Lieutenant Buck. McBride informed the money clerk of plaintiff that Lieutenant Buck was not on board. A messenger was then sent to inform one Hal W. J. Meyer, who responded and stated to said Howell that he was third *623class yeoman and assistant to Paymaster Buck, and in charge of the office, and that he would receive and sign for the money and deliver it to Lieutenant Buck as soon as he returned on board the ship; said Meyer also stated that he was accustomed to sign for it and that he had two safes in which he could keep the money. The money clerk then notified Mr. L. S. James, chief clerk of plaintiff’s Portsmouth office, by telephone, that the consignee, Lieutenant Buck, was not on board the ship and would not return until about 11 o’clock, and asked for instructions for making delivery to Meyer. The chief clerk directed him to make delivery if he could obtain a good signature. The money clerk then informed the chief clerk that Lieutenant Buck’s assistant pay yeoman, Hal W. J. Meyer, was on board the ship and would sign for and receive the money and deliver it to the consignee on his return to the ship. The chief clerk thereupon directed the money clerk to obtain the signature of the said Meyer and deliver the money to him. Pursuant to said instructions the money clerk delivered the three packages of currency to Meyer, took his receipt therefor, and asked that he surrender to him the accomplished bill of lading. After looking over, the papers on a desk and elsewhere about the room Meyer informed the money clerk that he did not have the bill of lading. The money clerk then obtained Meyer’s signature to his waybill book receipt. Meyer then prepared a memorandum which the money clerk left with Meyer for Lieutenant Buck, requesting Lieutenant Buck to fill out and sign the bill of lading and transmit it by mail to plaintiff’s Portsmouth office. The three packages of currency were then placed by said Meyer upon the desk of Paymaster Buck in his office and' the door of the office locked by said Meyer, he retaining the key thereto. Prior to this delivery the said money clerk Plowell had never accepted the signature from an enlisted man in the Navy for money consigned to a commissioned officer. But he had made delivery of moneys consigned to an officer, at the naval hospital at the Norfolk, Va., Navy Yard by delivering the same to the clerk of such officer, taking the clerk’s receipt therefor; the officer subsequently signing the bill of lading and send*624ing it by mail to the express company at Portsmouth, Ya. The following is a true and correct copy of the receipt and signature written by Meyer in the waybill book of the money clerk:

These spaces for messenger, transfer and office stamps (1) (4) (7) (2) (5) (8) (3) (8) (9) Stamp name of forwarding office, Washington, D. C. Destination 1148-D Norfolk, Va. Enter date Dec. 23 1920D W. B. 745882 Consignee Lt. W. A. Buck, SC. X7SN. Street address USS Satterlee US Navy Yard Piece-s Article Description 3 Sid Pk Cy Class Scale of Rate Verified by Shipper Receipt No. Treasurer U. S. Received from American Railway Express Co. Shipment described hereon Paid in Part Return Charges DELIVERY SHEET X ....Y.tkYnbN?!??..Signature Date Time Messengers must register in rotation in spaces above A. M. P. M. Deliveryman

The original bill of lading covering this shipment was received in the mail from the Treasury Department by Lieutenant Buck on the morning of December 30, 1920.

V. At about noon December 27,1920, C. W. Tait, chief yeoman, United States Navy, and senior assistant to Paymaster Buck, returned to duty aboard the *Satterlee*and went directly to the ship’s office, where he found Yeoman Meyer,, who informed him of the delivery of the currency and accompanied him to the paymaster’s office, where they found, the three packages of currency on the paymaster’s desk.

Tait checked up the figures on the outside of the three packages of currency, saw that the seals were intact and that *625the aggregate amount of such packages was $120,000. He then instructed Meyer to lock the door to the room in which the currency was left and remained there until his instructions had been obeyed by Meyer. Meyer kept the key to the room in his possession.

About o o’clock on the same day Lieutenant Buck returned to duty on board the IT. S. S. *Satterlee*and went directly to the ward room. After remaining there for about 20 minutes he went to his room, where he found two packages of currency, which he carried to the ward room to count in the presence of two other officers there as witnesses. Upon discovering that the two packages were marked on the wrappers as containing only $40,000 and $8,000, respectively, he returned to his room, accompanied by the two officers, to look for the third package which should have been in the shipment. The third package was not located in the room, but a broken -wrapper of a package, which was marked as containing $T2,000, was found lying on the desk in the room. Lieutenant Buck then called in Chief Yeoman Tait, who informed him of the arrival of the money clerk of the American Bailway Express Co. and the delivery by him of the money to Yeoman Meyer.

VI. Immediately after the loss was discovered Lieutenant Buck notified the officials of the American Eailway Express Co. and informed the commandant of the navy yard of the circumstances connected with the loss and of the absence of Meyer, Brennan, and Ashmore, hereinafter referred to. The following morning, December 28,1920, a conference was held with representatives of the Department of Justice, detective bureau in Norfolk, and representatives of the American Bailway Express Co. A navy board of investigation was convened and a hearing was had on the 28th, 29th, and 30th days of December, 1920, on board the U. S. S. *Goldsborough*at the Norfolk Navy Yard, Norfolk, Va., to inquire into and report upon the loss of the currency. At this hearing there were present besides the members of the board, W. Egleston, superintendent American Bailway Express Co.; W. S. Hall, general agent, American Bailway *626Express Co. for Norfolk and Portsmouth, Va.; F. B. Pond, special agent in charge, American Railway Express Co.; C. Guldin, special agent, American Railway Express Co.; Thomas W. Shelton and Alfred Anderson, attorneys for American Railway Express Co.

The following witnesses were examined: Lieut. W. A. Buck (S. C.), United States Navy; George Howell, money clerk, American Railway Express Co.; Lieut. H. S. Klein, United States Navy, attached to U. S. S. *Satterlee*as executive officer; Morris N. Girard, electrician, third class, United States Navy, attached to U. S. S. *Satterlee;*James McBride, yeoman, third class, United States Navy, attached to U. S. S. *Satterlee;*L. S. James, chief clerk of the Portsmouth office of the American Railway Express Co.; C. W. Tait, chief yeoman, United States Navy, senior assistant to Lieutenant Buck, attached to U. S. S. *Satterlee;*E. Vandermeer, storekeeper, third class, United States Navy, attached to U. S. S. *Satterlee;*Luther M. Egan, seaman, second class, United States Navy, attached to U.' S. S. *Satterlee;*J. L. Brien, machinist’s mate, first class, United States Navy, attached to U. S. S. *Satterlee;*John J. Keeley, water tender, United States Navy, attached to U. S. S. *Satterlee;*D. H. Whit-ham, seaman, United States Navy, attached to U. S. S. *Sat-terlee;*Samuel H. Paris, quartermaster, third class, United States Navy, attached to U. S. S. *Satterlee.*

VII. The Navy board of investigation disclosed, among other things, that the three sealed packages of currency, containing respectively, $8,000, $40,000, and $12,000, a total of $120,000, were delivered on board the U. S. S. *Satterlee*at the Norfolk Navy Yard, Norfolk, Ya., about 10 o’clock in the morning of December 21,1920, by George Howell, money clerk and messenger of the American Railway Express Co., and were signed for and received by Hal W. J. Meyer, yeoman, third class, United States Navy, assistant to Lieut. W. A. Buck (S. C.) United States Navy, in the absence of Lieutenant Buck; and that some time between the hours of 12 o’clock noon and 4 o’clock in the afternoon of the same day, before Lieutenant Buck had returned to duty on board the said U. S. S. Satterlee, the said Meyer forged *627shore-leave permits, affixing thereto the ship’s seal, for himself and Brennan and Ashmore, and that by means of the said forged shore-leave permits the three were permitted to depart from the U. S. S. *Satterlee*and to pass through the navy yard, carrying with them the said sum of $72,000 in currency. Subsequently the said Meyer and Ashmore were apprehended in the State of Florida and the said Brennan was apprehended in the State of Arizona and $18,000 in currency and an automobile were recovered. The automobile was finally sold by a United States marshal for the net sum of $181.22. The shortage or net loss due to the theft of the currency is the sum of $53,818.78.

Thereafter the said Meyer, Brennan, and Ashmore were indicted in the eastern district of Virginia, in the district court of the United States, for violation of sections 46, 67, and 48 of the Federal Penal Code, and upon pleas of guilty to said indictment were sentenced to pay a fine of $5,000 and serve a term of five years.

VIII. The Manual for Supply Officers Afloat, United States Navy, 1917, which was in force and effect at the time the currency was delivered to the American Railway Express Co., among other things, contained the following regulations :

*“*Par. 186. Signatures of commanding officers, etc. — All communications, orders, bills, requisitions, and papers which by law or regulations are to be signed, approved, or forwarded by an officer commanding a fleet, squadron, division, or station, the commandant of a naval station, the senior officer present, or the commanding officer of a ship, must be actually signed by such officer in his own handwriting; and in his absence, by the line officer next in rank and actually in command at the time.

*“*Par. 137. Signatures by yeomen. — No yeoman shall sign an official paper for any officer of the Pay Corps.”

“Par. 204. Bills of lading. — The officer receiving stores by shipment shall indorse such receipt upon the bills of lading, stating over his signature the condition of the supplies, and surrender the original to the carrier from whom he receives the goods, which bill shall be received as evidence of delivery. In the event of there being any loss or damage, the indorsement must fully show the character and amount of such loss or damage, in order that proper deductions may *628be made by the officer certifying the bill for freight. An accomplished memorandum copy of the bill of lading shall be returned to the supply officer who shipped the supplies.

“ In the absence of the consignee, or on his failure to receipt, the person receipting will certify that he is duly authorized to do so, citing such authority. * * *

“ Par. 205. Missing bill of lading. — If the bill of lading is missing the consignee may, to insure prompt delivery of the shipment, give to the carrier a receipt for the articles actually delivered, with a statement as to their condition, and embodying a statement to the effect that the receipt is given because the bill of lading has not come to hand. * * * ”

IX. No claim in writing or otherwise was made by the United States or any of the departments thereof, or by the consignor or consignee named in said Government bill of lading, for or on account of the loss aforesaid, and no suit has ever been commenced thereon by the United States.

No claim of any kind was ever asserted by the United States or any of the departments thereof until on or about the 6th day of August, 1921, when in response to a letter from the said American Railway Express Co. making inquiry as to the delay in payment of certain charges due it for transporting from time to time subsequent to the shipment to Lieutenant Buck under said Government bill of lading dated December 23, 1920, certain moneys, bullion, packages, and the like, the disbursing officer of the Navy in a letter bearing said date written by him stated that such payment was being withheld “ that reimbursement may be obtained for loss of currency while in transit, and for which the American Railway Express Co. has been held responsible. This shipment was consigned to Lieut. W. A. Buck (S. C.), U. S. N., Satterlee, navy yard, Norfolk, Va., and contained $72,000 in money.”

X. Payment of charges aggregating $53,818.78 due said American Railway Express Co. for transporting subsequent to the shipment to Lieutenant Buck under said Government bill of lading dated December 23,1920, moneys, bullion, packages, and the like for and on behalf of the Navy Department of the United States has been withheld from it and not paid to it by the United States.

XI. The American Railway Express Co. has sought the adjustment of its said claim against the United States by *629application to the Navy Department of the United States and to the Comptroller General of the United States, but it has been unable to secure any adjustment of said claim.

The court decided that plaintiff was not entitled to recover.

1

 Writ of certiorari denied.

Booth, Judge,

delivered the opinion of the court:

The plaintiff, an express company organized under the laws of Delaware and engaged in the usual transportation business of express companies, sues to recover $53,818.78 deducted by the General Accounting Office from sums admittedly due it for transportation service furnished the defendant subsequent to this transaction.

A general resume of the facts is sufficient for this opinion. The details of the case appear from the stipulated findings, and we need not repeat them. December 23, 1920, the plaintiff company accepted for transportation from the Treasurer of the United States three packages of currency aggregating the total sum of $120,000. One package contained $8,000, one $40,000, and one $72,000, each being consigned to Lieut. W. A. Buck, S. C., United States Navy, U. S. S. Satterlee, United States navy yard, Norfolk, Ya., the shipment being made on Government bill of lading No. T-268103. The packages reached Portsmouth, Ya., in the early morning of December 27,1920, and were turned over by the agent of the company at that place to one George Howell, a money clerk and messenger of the plaintiff company, for final transportation and delivery to the consignee, two armed guards in the employ of the company accompanying its messenger. Somewhere near 10 o’clock a. m. of the same day Howell and the armed guards went aboard the Satterlee, came in contact with one McBride, a third-class yeoman, and were by him informed that Lieutenant Buck was not aboard ship.

A messenger was thereupon dispatched to locate Hal W. J. Meyer, another third-class yeoman, and by the findings stipulated as assistant to Lieutenant Buck. Meyer stated to Howell that he was Buck’s assistant, that he would receive and sign for the money and deliver the same to the lieutenant as soon as he came on board. He! further said *630that he was accustomed to signing receipts for money shipments and had two safes wherein he could keep the amounts. Howell declined at first to deliver the packages to Meyer. Instead he called up the chief clerk of the Portsmouth office of the company and informed him over the telephone that Buck was not on board the ship and would not return until about 11 o’clock, and asked for instructions as to making-delivery to Meyer. The chief clerk advised Howell to make the delivery if he could obtain a good signature. Howell thereupon, informed the chief clerk that Buck’s assistant paymaster yeoman, Pial W. J. Meyer, was on board ship, ", ould sign for and receive the money, and deliver the same to Buck upon his return to the ship. The chief clerk then directed Howell to obtain Meyer’s signature and deliver the packages to him. Howell asked Meyer for the surrender of the accomplished bill of lading. Meyer, after an examination of the papers on the desk in the office, was unable to find the bill of lading, whereupon Howell obtained Meyer’s signature to his waybill book receipt and delivered the packages to him, Meyer at the time preparing a memorandum requesting Lieutenant Buck to fill out and return to the company by mail the accomplished bill of lading. This paper Plowell left with Meyer.

The three packages of currency were then placed by Meyer on the desk of Paymaster Buck in his office on board ship and the door locked, Meyer having possession of and retaining the key. Howell, previous to this transaction, had never accepted the signature of an enlisted man in the Navy for money consigned to a commissioned officer. About noon of this same day Chief Yeoman C. *W.*Tait, senior assistant to Lieutenant Buck, returned to duty aboard ship. Upon going to ship’s office he found Meyer, who immediately informed him of the delivery of the money. Tait and Meyer then went directly to the paymaster’s office; Tait checked np the figures on the outside of the packages, found the seals intact, and the aggregate amount of the shipment to be $120,000. Tait then instructed Meyer to lock the door, saw that his orders had been obeyed, and, allowing Meyer to retain the key, the two men left the vicinity of the office.

*631Without going further into minute detail it is sufficient to state that at some hour between noon and 4 p. m. of this same day Meyer and two confederates, Brennan and Ash-more, procured shore-leave permits by means of forged orders, left the ship, taking with them one of the packages involved, which contained $72,000 in currency. The, theft was discovered by Lieutenant Buck shortly after his return aboard ship, the loss duly reported, and afterwards officially investigated by a Navy board. Meyer, Brennan, and Ash-more were subsequently apprehended, indicted, plead guilty, and were sentenced to prison. Of the amount stolen $18,000 was recovered, and to this must be added the sum of $181.22, salvage value of an automobile purchased by the culprits and seized at the time of their arrest, leaving the balance sued for in this case.

The argument advanced by the plaintiff to sustain the right of recovery is predicated upon three propositions of law: First, it is contended that there was in law a delivery of the shipment; second, the loss of the currency was due to the negligence and criminality of defendant’s agents, and, lastly, in any event, the defendant is barred from asserting a claim for the loss because of failure to make a claim therefor in writing within the four months’ period prescribed in the uniform express receipt, filed with the Interstate Commerce Commission, and published and posted as required by law. If the plaintiff company accomplished a lawful delivery of the shipment involved, obviously the controversy is at an end. The obligation of the plaintiff was to safely transport and deliver to the consignee the currency entrusted to its care, in accord with the contract so to do. This shipment was made on Government bill of lading No. T-268103. It is so stipulated in the findings. "To this instrument, and to it alone, may we look for the terms of the contract governing the transaction, an indisputable fact, made manifest not only from the terms of the bill itself but familiar in all its details to the agents of the plaintiff company, who were fully cognizant of the fact that Government property is uniformly and invariably transported upon a Government bill of lading, which is first executed by the plaintiff’s agent, then re*632turned to the shipping officer and by him forwarded to the consignee, who, upon delivery, surrenders the same to the carrier, constituting as a finality the basis of payment to the carrier of its transportation charges. By the express terms of the bill of lading the stolen package of currency was consigned to Lieut. W. A. Buck.

The place of delivery was on board the U. S. S. Scotterlee, navy yard, Norfolk, Ya. The package arrived safely at the place of delivery, but admittedly it was not delivered to the consignee. Was it then delivered to anyone clothed with authority to receive and receipt for the same in the temporary absence of the consignee ? There is not an *official*word in the stipulation of facts disclosing authority upon the part of Meyer to accept and receipt for currency consigned to the paymaster. True, Meyer verbally proclaimed authority, but responsibility for the acts of Government officers and agents is not fixed by oral statements or from appearances. It is conferred by law. The mere fact of appointment as an assistant to a paymaster does not carry with it authority to receipt for and accept delivery of large sums of money consigned to the paymaster individually. The duties of an assistant may cover a variety of acts perfectly consistent with a denial of a right to receive money for the paymaster. The primary question upon this phase of the case is one not subject to speculation or inference. It must be proven positively, and the burden of proof rests upon the plaintiff. Not only has the plaintiff signally failed in this respect, but the record shows a positive lack of authority to so act.

Paragraph 137 of the Manual for Supply Officers Afloat, Navy, 1917, provides:

> “ Signatures by yeomen.' — No yeoman shall sign an official paper for any officer of the Pay Corps.”

"When a Government bill of lading names a consignee without qualification and the subject matter of the shipment is a most substantial sum of Government funds, the obligation of the transportation company to deliver the shipment to the named consignee is not discharged by delivering the shipment to another, unless it is shown beyond dispute that by authority of law or the regulations the third party was *633clothed with authority to accept the same. In this case no such proof obtains, and citations of precedents to sustain the rule of law is not required. It is too well established and too familiar to exact them. The court is powerless to deduce from the proven facts a lawful delivery in the present instance.

The fact that the packages of money were to be delivered to the consignee on board a ship of war, anchored at the wharf of a United States navy yard, a place and a vessel under strict surveillance, and those in charge under rigid discipline, does not help the plaintiff’s cause. Obviously the plaintiff company, and beyond doubt its money messenger Howell, knew the exact status of affairs, and were fully aware that the officers and men on board ship and in the navy yard act under orders and commands; that noncom-missioned officers were subordinate officials with limited authority and prescribed duties; that under the law and naval regulations the status of the officers and men aboard ship is fixed and determined, and that beyond the limits so fixed they may not go with authority. This the plaintiff knew, for the money messenger was admonished to secure a *good,*signature. It is vastly different from the .delivery of money to an agent of a national bank, authorized to receive deposits and credit the same on the books of the bank, or a shipment of packages other than money to a named department of the Government. The mere possession of the packages here concerned by a noncommissioned officer or officers of the ship, even though they actually are assistants to the consignee, does not relieve the plaintiff from the necessity of showing that as such assistants they had authority to accept and receipt for money consigned to their superior. A paymaster in the Navy assumes grave responsibilities ; he is a bonded officer and subject at all times to account for every penny of funds reaching his custody. Large amounts are annually transmitted to him by the Treasury Department and by him carefully disbursed.. To hold that the sum of $120,000 was lawfully delivered to him, as consignee for that amount, by making delivery thereof to his office aboard ship, or to a subordinate official in his absence. *634upon the basis usually applied to the delivery of ordinary commercial shipments, would be contrary to precedent and at variance with established law. The plaintiff failed to observe the plain terms of the bill of lading respecting delivery. No receipt was exacted of the assistant receiving the money certifying his authority to so act; nor any recitation of from whom or under what law or regulation he was assuming to act. Again, in the absence of the bill of lading, only the consignee may give the carrier a receipt for the property actually delivered, and this receipt must state upon its face that it is given because the bill of lading has not come to hand.

As to the second contention, the negligence and criminality of the defendant’s agents and officers causing the loss, it is pertinent to say that for acts of this character by a Government agent, manifestly no liability attaches to the Government. The record does disclose a most amazing degree of carelessness and an utter and inexcusable lack of diligence, not attributable, at least in the first instance, to the Government but to the plaintiff. Ey what process of reasoning an experienced agent of the plaintiff company could bring himself to rest content with the delivery of $120,000 in currency to a third-class yeoman on board a naval vessel, in the absence of the consignee, is manifestly enigmatical. Howell,, the messenger, knew better and refused to act without specific authority from his superior. The company knew the value of the shipment, the responsibility of the carrier, and the incident danger of the theft in making delivery. Commendable steps, precautionary steps, were taken to prevent robberjr and theft up until the moment, in the presence of the-messenger and armed guards, the money itself was voluntarily delivered into the possession of one of the very men who afterwards stole it. Not a single commissioned officer was consulted, the commander of the ship ignored, absolutely no effort was made to ascertain the truth of Meyer’s statements, no, inclination to await the consignee’s return evinced, no movement toward taking the money back to., Portsmouth, not a single word uttered or act performed in consonance with the degree of prudence and care required-. *635under the exceptional circumstances. Surely in view of the facts it is not to be held that the officers on board ship were careless and negligent in not effectively guarding against forgery and theft when knowledge of the presence of a large sum of money, carelessly lying on the desk in the paymaster’s office, was known to but three third-class yeomen, and by them not communicated to their superior officers. The plaintiff put it within the power of Meyer to conceive the conspiracy to steal the money, and in this particular may not escape responsibility by asserting a lack of diligence subsequent to the event, when a prior exercise of caution and care upon its part would have enabled it to escape liability and discharge its contractual obligations according to the terms and conditions of the contract. If the case were resolvable upon the issue of negligence the defendant would be absolved.

We may not, however, entertain a contention of governmental liability for the loss of a package of money delivered to an agent of the Government unauthorized to receive it on the theory that notwithstanding the agent’s lack of authority the money was lost through the negligence and criminality of the Government’s officers. *(Bigpy*v. *United*States, 188 U. S. 400.) To this class of injuries our jurisdiction does not extend. The issue here is not so much to fix blame for the loss as to ascertain who was legally responsible for the package of currency from the time it left the treasurer’s office until it was stolen from the office of the paymaster.

The third and final insistence of the plaintiff raises again the question as to the binding effect on the United States of a stipulation in a bill of lading prescribing limitation upon the right of the Government to sue for loss of a shipment irrespective of the responsibility for the loss. In other words, may an officer or agent of the United States, in the absence of statutory authority so to do, assent in its behalf to a limitation of the Government’s right to assert its claims in court? In this case the defendant did not sue the plaintiff; nor was a formal claim in writing filed with the plaintiff within four months after a reasonable time for *636delivery had elapsed, as the bill of lading provided. What the defendant did was to apply funds in its hands then due the plaintiff in extinguishment of this alleged debt.

The plaintiff company did, as the findings show, receive timely and immediate notice of the loss of the money, and its principal officers and legal representatives were present at and during the investigation of the event by the naval board. The plaintiff’s employees concerned in the matter were examined as witnesses by the board and nothing was left undone to bring home to the plaintiff company the circumstances of the loss, except the omission to supplement the initiatory proceedings with the formal notice exacted by the terms of the bill of lading. In view of this situation, the issue now under discussion narrows to the technical extent of contending that, notwithstanding immediate notice of the loss and full knowledge of all that happened, the Government was obligated to go still further and file the written notice of claim. The loss occurred on December 27, 1920. The following morning, after notice, a conference was held in which representatives of the plaintiff participated. On December 28, 29, and 30 the naval board conducted its investigation, the plaintiff’s representatives, as before observed, being present and participating in the proceedings until the close thereof, in possession of actual knowledge at all times and under all circumstances of just what occurred. Subsequently the plaintiff accomplished a large volume of transportation, for which undisputed payments were withheld, and not even inquired about by the plaintiff until August, 1921, nine months after this loss. Assuredly the plaintiff must have known that something was in the way of immediate settlements for the service rendered; that some adverse claim retarded payments; that some demand was being asserted by the defendant. As a practical question, it is seemingly indisputable that an experienced business agency would permit the accumulation of over $53,000 of overdue charges, under the circumstances of this case, without entertaining a thought and actual knowledge that the defendant was claiming some set-off, some counterclaim.

*637It is difficult to believe, in the face of the record, that the plaintiff company was by the defendant led to believe that the claim for this loss was abandoned by the defendant when large and undisputed charges were almost without intermission accumulating in the hands of the defendant and withheld from the plaintiff. To require the defendant to give a more specific notice or claim, or acquaint the plaintiff more definitely with its claim, is in effect to hold it to an observance of a formality which functions only as cumulative evidence of its intent and a meaningless proceeding when actual notice and personal acquaintance and participation in the investigation of facts contemporaneous with the event obtained. The purpose subserved by the requirement of a written notice of claim had been and was fully met.

This court on June 14, 1926, in cases No. E-226, *Atlantic Coast Line B. B.*v. *United States, ante,*p. 449, and No. D-750, *Missouri-Kansas-Texas- R. R.*v. *United States, ante,*p. 373, adjudicated contentions in point with the plaintiff’s contention with respect to this issue. In the latter case Chief Justice Campbell, speaking fop the court, said:

> “ There is a broader ground for rejecting the plaintiff’s contention to be found in the fact that it leads to a limitation upon the rights of the sovereign not authorized by statute. Unquestionably the rule is that it requires congressional action clearly manifesting such a purpose before the United States can be bound by statutes of limitations. See *United States*v. *Nashville Ry. Co.,*118 U. S. 120, 125. It is said that ‘ No laches can be imputed to the Government, and against it no time runs so as to bar its rights.’ See *Thompson case,*98 U. S. 486, 488. The rule is not confined to statutes of limitations. In *Kirkpatrick's case,*9 Wheat. 720, 735, Mr. Justice Story, speaking for the court, says: ‘ The general principle is that laches is not imputable to the Government; and this maxim is not founded in the notion of extraordinary prerogative, but upon a great public policy. The Government can transact its business only through its agents, and its fiscal operations are so various and its agencies so numerous and scattered that the utmost vigilance would not save the public from the most serious losses if the doctrine of laches can be applied to its transactions.’ See *United States*v. *American Bell Telephone Co.,*159 U. S. 548, 554. If it be conceded that the Government is bound by its contracts it must appear, in view of the authorities *638cited, that there is statutory authority for. the particular contract as well as an authority in the agent who makes it to waive rights of the Government. There is an absence of these things in the instant case. The transportation act furnishes no basis for the contention that the Government is bound by the provisions of the uniform commercial bill of lading, and the implications to be found in that act tend rather to exclude Government shipments from its operation. We have quite recently adopted the view urged upon the court by counsel for transportation companies that the statute of limitations therein prescribed for actions by the carriers does not apply to suits by them in the Court of Claims. See *Southern Pacific Co.*case, No. D-504, decided this date.” See also *E. I. Dupont De Nemours & Co.*v. Davis, *etc.,*264 U. S. 456, 462.

The petition should be dismissed. And it is so ordered.

Moss, *Judge;*Gbaham, *Judge;*Hat, *Judge;*and. Campbell, *Ghief*Justice, concur.