#### ATLANTIC COAST LINE RAILROAD CO. v. THE UNITED STATES

[No. E-226.

Decided June 14, 1926]

*On the Proofs*

*Railroad transportation; haggage; loss; limitation of value.*— Where an Army kit bag, containing clothing and equipment purchased by the United States and furnished an enlisted man, United States Army, for use in the military service, is checked as-baggage by the said soldier in connection with his travel on a Government transportation request, and is forwarded by an intermediate carrier via a route other than designated on the traveler’s ticket, so that he does not receive it at *450Reporter's Statement of tile Case destination, and it is sold for storage charges by the final carrier transporting it, the Government has a suflSeient interest therein to enforce the carriers’ liability, and may recover the value thereof, as limited by the terms of the ticket and the carriers’ tariff, by deduction from an amount otherwise due the initial carrier.

*The Reporter’s*statement of the case:

*Mr. M. O. Elliott*for the plaintiff. *Mr. Thomas W. Davis*was on the brief.

*Mr. Louis R.*Mehlinger, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant. *Mr. Perry W. Howard*was on the brief.

The court made special findings of fact, as follows:

I. The plaintiff is now, and was at the times hereinafter mentioned, a corporation organized and existing under the laws of the State of Virginia.

II. The plaintiff is now, and was at the times hereinafter mentioned, a common carrier by railroad in interstate commerce, operating railroads or lines of transportation in the States of Virginia, North Carolina, South Carolina, Georgia, Florida, and Alabama.

III. On or about May 15, 1922, the plaintiff issued to one Edward Connerton, flying cadet, Air Service, United States Army, on T/R No. WD-3365499, its customary coupon passenger ticket routed as follows: Arcadia, Fla., to Jacksonville, Fla., via plaintiff’s lines; Jacksonville, Fla., to Birmingham, Ala., via the Southern Railway Co.; Birmingham to Memphis, Tenn., via the St. Louis & San Francisco Railroad Co.; Memphis to Fort Sill, Okla., via the Chicago, Rock Island & Pacific Railway Co.; and the said Edward Con-nerton was transported safely over the lines of plaintiff and its comiecting carriers, arriving at Fort Sill, Okla., on or before May 22,1922. The customary coupon ticket contains *inter*alia, the following provision:

“ Baggage valuation is limited to one hundred dollars for an adult and fifty dollars for a child, unless purchaser hereof declares a greater valuation at time baggage is presented for transportation and pays excess valuation charges according to tariff rates, rules, and regulations.

*451“Responsibility. — In selling this ticket for passage over other lines and in checking baggage on it, this company acts only as agent and is not responsible beyond its own line.”

IV. In accordance with the baggage tariffs then in force plaintiff issued to said Edward Connerton baggage check No. G-267161 covering transportation of an Army canvas barrack bag and contents, without additional charge, from Arcadia, Fla., to Fort Sill, Okla., routed in accordance with transportation request and ticket issued thereunder via plaintiff’s lines and its connecting carriers, the Southern Railway Co., the St. Louis & San Francisco Railroad Co., and the Chicago, Rock Island *&*Pacific Railway Co. The said baggage (Army canvas barrack bag and contents) was transported over the Southern Railway to Birmingham, Ala., and there delivered to the St. Louis *&*San Francisco Railway, which transported it to Fort Sill, Okla., instead of delivering it at Memphis, Tenn., to the Chicago, Rock Island & Pacific Railroad Co. Said bag was delivered safely at the Fort Sill station of the St. Louis & San Francisco Railroad Co. on May 19,1922, instead of the Fort Sill station of the Chicago, Rock Island & Pacific Railway Co., the final carrier named on the transportation request, passenger ticket, and baggage check. After having been held at the station of the St. Louis & San Francisco Railroad Co. for 60 days the baggage was sent from Fort Sill to Springfield, Mo., where it was sold for storage.

The said Army canvas bag contained articles of clothing and equipment purchased by the United States and furnished to the said Edward Connerton, flying cadet, Air Service, United States Army, for his official use in the military service. It is agreed, however, that nothing in this stipulation shall be construed as an agreement on the part of either party hereto concerning the ownership of the contents of the said Army canvas bag.

V. On account of said transportation service the plaintiff stated against the United States its bill No. C-4371, claiming thereon the sum of $95.36 (later corrected to $89.24 to adjust charges to per capita fares applicable), and payment of the amount of $89.24 was accordingly made by Major Carl *452Halla, United States Army, on July 21, 1922, voucher No. 5039, as per corrected bill rendered.

VI. After efforts had failed to locate the baggage at the station of the Chicago, Rock Island & Pacific Railway Co. at Fort Sill, Okla., and a survey had been ordered by the War Department which disclosed that the canvas barrack bag contained articles of Army clothing of the value of $77.18, the chief of the transportation branch, War Department, by letter dated March 23, 1923, requested plaintiff’s general passenger agent “to forward check for $77.78, the value of the lost baggage, to Finance Officer, U. S. A., Transportation.” In reply to this request, the general passenger agent stated that—

“ Upon telegraphic investigation I find that this bag was delivered to the Southern Railway train No. 8 at Jacksonville, Fla., on May 18,1922. We have wired the general baggage agent, Mr. J. C. Conn, of Chattanooga, Tenn., of that line requesting him to continue the trace with the view of establishing responsibility for this loss, when we will refer the matter to the line responsible. We will take pleasure in advising you as soon as possible.”

At the bottom of this letter appeared the following:

“ Cy. to Mr. J. C. Conn, G. B. A., Sou. Ry., Chattanooga, Tenn. I am unable at present to advise complete routing of this check. But it seems that the C., R. I. & P. people advised the owner that the article was lost. We have no short report from this line.”

By letter of April 10, 1923, plaintiff’s general passenger agent advised the transportation branch as follows:

“ Referring further to your letter of March 23d, and returning herewith all enclosures, I beg to advise that records indicate this bag under check 267161 was handled promptly from Arcadia, Fla., to Fort Sill, Okla. Apparently no delay whatever in reaching destination. I am further advised by the Frisco System that the article remained on hand uncalled for the length of time required by their tariff and that it was then forwarded to their unclaimed baggage room and later sold at public auction. Under the circumstances outlined above you can readily see that the Atlantic Coast Line can not entertain any claim for the alleged loss of this baggage and the claim is respectfully declined.”

*453May 16,1923, the transportation branch replied as follows:

“ Flying Cadet Edward H. Connerton traveled on T/E 3365499, included in your bill C 4371. T/E was routed via ‘ACL-Southern-Frisco-CEI&P. ’ It would appear from your letter that the baggage was routed over the St. Louis-San Francisco Eailway into Fort Sill. If this is the case and baggage was forwarded via a route other than that called for on T/E, it would seem that it was due to an error on the part of your agent that baggage was not delivered. Eeport of survey is returned, from which it will be noted that the baggage was claimed at CEI&P station without result. It would further appear that the St. Louis-San Francisco agent, having an unclaimed barrack bag on hand, might easily have located the owner thereof by communication with the post quartermaster. Claim for refund is renewed.”

March 21,1924, plaintiff’s general passenger agent advised the transportation branch as follows:

“ Eegret to advise that I can not see my way to alter my decision in this matter and must again respectfully decline this claim.”

VII. Howard’s Southeastern Baggage Tariff No. 9,1. C. C. No. H-198, which was in force at the time the said transportation services were furnished, contained the following provisions:

“Eule 5-a. Subject to conditions and charges shown in connection therewith, the articles enumerated below if not intended for other persons or for sale may be accepted and checked for transportation in regular baggage service when owner is a passenger presenting valid transportation.

“(b) The carriers will not accept a greater liability than twenty-five dollars ($25.00) per passenger for any one or more articles enumerated below unless a greater value is declared at time of delivery to carrier and charge shown in Eule 11 (d) is paid for such increased valuation.

* * * * Article Military * * I-Cit bags of enlisted men. * Further condition of acceptance When securely closed and tied, containing clothing and personal equipment. * * Charges or allowances Included in weight and value of passenger’s baggage. * *

“ BAGGAGE OR PROPERTY INSUFFICIENTLY OR IMPROPERLY ROUTED

“ Eule 17. When baggage or property is not fully routed it will be the duty of the intermediate line to forward such *454baggage or property to checked destination via the most available route. If claim arises for loss, damage, or delay, the initial line shall be held responsible in the event baggage or property is carried over some other than the route of the ticket upon which checked.

*****

“ If there is more than one station at destination, it shall be the duty of the line forwarding the baggage or property to notify the initial as well as the terminal lines, naming the station at which the baggage or property may be found.

“ CLAIMS

“ Rule 18. The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the baggage or property at the place and time of shipment.

“ 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 carrier within six (6) months after delivery of the property, or, in case of failure to make delivery, then within six (6) months after a reasonable time for delivery has elapsed; and suits for loss, damage, or delay shall be instituted only within two (2) years and one day after delivery of the baggage, or property, or in case of failure to make delivery, then within two (2) years and one day after a reasonable time for delivery has elapsed.”

VIII. Finally, by letter dated April 22, 1924, the transportation branch of the War Department advised plaintiff’s general passenger agent as follows:

“Referring further to your bill B. C. 12878 and your letter of March 21, 1924, in connection therewith, you are advised that deduction of $77.78, representing the value of lost baggage, has been made from A. C. L. passenger bill No. C-8004 and your accounting office advised accordingly.”

IX. Thereupon, the plaintiff per its supplemental bill C-8004AL submitted to the War Department claim for the said sum of $77.78 deducted and withheld from its passenger bill No. C-8004. This supplemental claim was wholly disallowed by the General Accounting Office per certificate of settlement No. T-75656:(4W, dated August 28, 1924, for the reason that “the baggage in question was the property of *455the United States and the Atlantic Coast Line Railroad, the initial carrier is held responsible for the loss thereof.”

X. It is agreed that the reference by plaintiff in its petition filed herein to the St. Louis & Southwestern Railroad Co. is a typographical error and should read “ St. Louis & San Francisco Railroad Co.”

XI. The Atlantic Coast Line Railroad Co. has not been paid the sum claimed in this suit or any part thereof.

(Note. — On the reverse side of plaintiff’s bill, voucher No. C-4371, and corrected bill, voucher No. 5039, under “ Instructions ” was the following: “ 1. Payment for transportation of passengers will be made to the carrier honoring transportation requests, unless otherwise provided, and upon this voucher form, accompanied by the corresponding receipted transportation requests.”

There is no evidence as to whether plaintiff was notified by St. Louis & San Francisco Railroad Co. of the presence of the military kit bag at its station in Fort Sill, Okla.)

The court decided that plaintiff was entitled to recover, in part.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff railroad company rendered transportation for the Government and presented its bill therefor. No question is raised as to this bill, but there was deducted from the amount of it $77.78, representing alleged value of property lost under the circumstances to be stated, for which loss the Government contends the plaintiff is liable. Several questions are presented by the parties, and the first of these is whether the carrier is liable for the loss. The case was submitted on an agreed statement of facts, substantially as follows : Upon a regular “ Government transportation request ” the plaintiff issued its customary coupon passenger ticket to a member of the flying cadets, Air Service, United States Army, from a point in Florida to Fort Sill in Oklahoma, routed from the point of issue of the ticket, Arcadia, Fla., to Jacksonville, Fla., over its own line, thence via Southern Railway to Birmingham, Ala., thence via the St. Louis & San Francisco Railroad Co. to Memphis, Tenn., and from *456Memphis to Fort Sill via the Chicago, Eock Island & Pacific Eailway. This route complied with the transportation request and was actually traveled by the enlisted man to whom the ticket was delivered. Plaintiff also issued to the enlisted man its baggage check No. G-267161 covering transportation of an Army canvas bag and contents without additional charge therefor. The agreed facts state that the baggage check showed the routing to be the same as that shown by the ticket. This Army canvas bag or military kit was carried to Memphis, Tenn., and was not at that point transferred to the Chicago, Eock Island & Pacific to be carried to Fort Sill, but its carriage from Memphis to Fort Sill was effected by the Frisco — the same road that brought it from Birmingham to Memphis, this line, the St. Louis & San Francisco Eailroad Co., having a station at Fort Sill separate from that of the line over which the enlisted man traveled. As a consequence of this action the enlisted man did not receive the bag or kit on his arrival at Fort Sill, but it was delivered at the station of the Frisco, where it remained unclaimed for 60 days. At the end of this period it was sent to the Frisco’s depot for unclaimed baggage and sold. Why this course was adopted, if the baggage check showed that the shipment was intended to be by another line into Fort Sill, does not clearly appear, though there is some correspondence in the stipulation which indicates that the baggage may have been routed over the Frisco into Fort Sill.

The baggage check delivered by plaintiff’s agent to the enlisted man is not offered in evidence by the Government. The stipulation, however, is that the baggage was routed over the roads mentioned, including the Eock Island. We must therefore accept it as a fact that the baggage was correctly routed and that the occasion of the loss'was the failure of the Frisco road to deliver the baggage to the Eock Island at Memphis, leaving unexplained the failure of the former to do anything to correct its own error. The plaintiff’s contention is that it was not liable for the loss caused by a connecting carrier’s fault. We think the initial carrier is liable in this case. Whatever the rule is as between an individual and the carrier where the former accepts a ticket limiting *457the latter’s responsibility (see *New York Central & Hudson River Ry.*v. Beaham, 242 U. S. 148), the carrier accepting a transportation request and issuing a ticket thereon is bound by its provisions, and the person transported is without authority to vary the terms of the request or bind the Government to the limited responsibility indicated upon the back of the ticket delivered to him. The initial carrier is required to collect the bill for the transportation charge and there is a provision in Rule 17 of Howard’s Southeastern Baggage Tariff No. 9, I. C. C. No. H-198, in force at the time, that “if claim arises for loss, damage, or delay, the initial carrier shall be held responsible in the event baggage or property is carried over some other than the route of the ticket upon which checked.” The contention that this provision is only applicable in cases where the baggage was not fully routed by the initial line and was not carried over the lines specified in the ticket does not seem to us to be sound. The settlement for the transportation is had with the initial carrier and not with the terminal carrier, as is the case in-general on bills of lading, and in cases like the instant one, the initial carrier is responsible to the Government. We think also that the Government had sufficient interest in the baggage (military kit) to authorize the enforcement by it of the carrier’s liability. The enlisted man was not the absolute owner of this property. (See act of July 9,1918,. sec. 10, 40 Stat. 891.)

The right of the accounting officers to set off a personal liability to the Government against a recognized liability of the Government to the same person is too well established to need discussion, but the amount, where there is dispute,, may be an open question. In the instant case there was a tariff regulation to the effect that the carrier’s liability for the military kit of an enlisted man would be limited to $25 in the absence of a greater declared value and the payment, of additional compensation. The duly published tariff was authorized by statute (39 Stat. 441), and being so authorized we think the provision in question is applicable to property-carried for the Government as checkable baggage upon a, passenger ticket. We find no statutory authority applicable *458to the Government whereby the latter’s claim against the transportation company may be barred upon the failure to present it within a stated period or to bring suit within two years and one day. The United States are not bound by statutes of limitation nor can the rights of the Government be surrendered by the mere inaction or negligence of its officers or agents. In *United States*v. *Nashville Ry. Co.,*118 U. S. 120, 125, it is said: “ It is settled beyond doubt or controversy — upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided — that the United States, asserting rights vested in them as a sovereign government, are not bound by any statute of limitations unless Congress has clearly manifested its intention that they should be so bound.” The same principle is applicable in a case such as we have before us.

Our conclusion is that the plaintiff, as initial carrier, is liable for the loss of the military kit in the sum of $25, and inasmuch as there was deducted from its bill the sum of $11.78 it should recover the difference between these sums. And it is so ordered.

Geaham:, *Judge;*Hat, *Judge;*and Booth, Judge, concur.