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154 Ct. CI. Opinion of the Court of several of the Circuits. See National Bondholders Corp. v. Seaboard C. Natl. Bank, 110 F. 2d 138; Ohio Cas. Co. v. Gordon, 95 F. 2d 605; U.S. Fidelity & Guaranty Co. v. Haggart, 163 Fed. 801.

Whether or not the United States had failed to comply with the regulations of the Interstate Commerce Commission was put in issue in the District Court. The United States had full opportunity to show that it did comply with them, and the court found against it. The Railroad Company had full opportunity to show that it was not negligent, but the court made the foregoing findings of negligence on its part. The obligation of the United States to disclose the nature of the shipment imposed by the regulations is substantially the same as that imposed by the bill of lading.

We come, then, to the question : Does plaintiff's negligence relieve defendant of the obligation assumed in the bill of lading, and of that cast upon it by the regulations of the Interstate Commerce Commission?

It is a well-settled principle of the law relating to common carriers that a carrier cannot by agreement relieve itself of liability for its own negligence. Liverpool Steam Co., v. Phenix Insurance Co., 129 U.S. 397; Knott v. Botany Mills, 179 U.S. 69; Boston & Maine R.R. Co., v. Piper, 246 U.S. 439; United States v. Atlantic Mutual Ins. Co., 343 U.S. 236, and cases cited. It follows that the defendant's agreement “to indemnify the carrier against all loss or damage caused by such goods” does not apply to a case where the goods would not have caused the damage except for the carrier's negligence.

The judgment against the carrier in the District Court of Idaho was grounded on the carrier's negligence. The United States did not agree to indemnify it against loss occasioned by its own negligence. It is true the default of the United States contributed to the loss, but, notwithstanding this dofault, the loss would not have occurred except for the carrier's negligence in allowing the fire to spread to the defendant's shipment. The shipment was harmless until it came in contact with the fire. That it came in contact with the fire was due to the carrier's negligence.

Plaintiff is not entitled to recover on its second count.

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Opinion of the Court Nor is plaintiff entitled to recover on its first count, which involves the right of the defendant to recover the value of the shipment lost by deducting it from freight bills admittedly due. Indeed, plaintiff concedes as much in its reply brief, where it says: “A recovery by the plaintiff on the First Count depends on whether plaintiff's claim on the Second Count is sustained. If not, plaintiff's claim on the First Count also fails." This seems to be a necessary concession, in view of section 20(11) of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. § 20(11). This makes a common carrier liable “for any loss, damage or injury to such property caused by it” and “no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such carrier, railroad, or transportation company from the liability hereby imposed”. It is clear that under the statute, plaintiff could not, by contract, exempt itself from the liability imposed. United States v. Savage Truck Line, 209 F. 2d 442. See also Chicago & Eastern Illinois R. Co. v. Collins Produce Co., 249 U.S. 186; Chesapeake & Ohio Ry. Co. v. Thompson Mfg. Co., 270 U.S. 416; Gordons Transports, Inc. v. United States, ante, p. 1; Atchison, Topeka & Santa Fe Ry. v. United States, 118 Ct. Cl. 194; Lehigh Valley R. Co. v. State of Russia, 21 F.2d 396.

The cases hold that the shipper may recover notwithstanding its concurring default. Lehigh Valley R. Co. v. State of Russia, supra; United States v. Savage Truck Line, supra. See also Commodity Credit Corp. v. Norton, 167 F.2d 161.

The plaintiff has no right of contribution against defendant as a joint tort feasor under the laws of the State of Idaho. See opinion of District Court in Marshall v. Union Pacific R.R., et al., on motion of railroad company to make the United States a third party defendant; affirmed sub nom United States v. Marshall, supra.

It results, therefore, that plaintiff is not entitled to recover for the losses or damage caused by the fire and explosion and it must bear the loss of the Government's equipment.

Defendant's motion for sumary judgment is granted as to the second count of the petition, and the second count will be dismissed. The value of the Government property which

154 Ct. Cl.

Syllabus was destroyed by the fire and explosion will be determined pursuant to Rule 38(c), unless the parties are able to agree upon this value. Judgment on the first count of the petition will be reserved pending the determination of such value.

It is so ordered.

DURFEE, Judge; LARAMORE, Judge; MADDEN, Judge, and JONES, Chief Judge, concur.

ARTHUR B. DAUB v. THE UNITED STATES

[No. 533–59. Decided July 19, 1961]

ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR SUMMARY

JUDGMENT

Civilian pay; dismissal; regulations of executive department.-In an

action by a temporary employee of the Department of the Army to recover back pay lost during the period between his wrongful dismissal and his subsequent reinstatement, it is held that plaintiff is entitled to recover inasmuch as his dismissal was in violation of a valid personnel regulation of his employing agency. Service v. Dulles, 354 U.S. 363; Watson v. United

States, 142 Ct. Cl. 749. Civilian pay; dismissal; temporary position; regulation of executive

department-claim under.—Where a civilian employee of the Department of the Army is dismissed in violation of a valid departmental regulation in that the officials responsible arbitrarily and capriciously punished a minor and initial error of the employee by the extreme penalty of dismissal instead of with a reprimand as called for in the applicable departmental regulation, the employee is entitled to bring suit in the Court of Claims to recover the back pay lost despite the fact that he did not have the protection of the Lloyd-La Follette Act (62 Stat. 354, 5 U.S.C. $ 652) or the Veterans' Preference Act (58

Stat. 390, 5 U.S.C. & 863). Armed Services 27 Court of Claims; jurisdiction; civilian pay claim-not covered by

Lloyd-La Follette Act.-Suits for back pay of civilian Government positions in the Court of Claims are not confined to suits for pay which was wrongfully withheld in violation of the provisions of the 1948 amendment to the Lloyd-La Follette Act (62 Stat. 354, 5 U.S.C. 8 652), providing for the administrative pay.

ment of back pay upon reinstatement under that act. Armed Services Om 27

434

Opinion of the Court Arthur B. Daub, pro se.

Mary J. Turner, with whom was Assistant Attorney General William H. Orrick, Jr., for defendant.

MADDEN, Judge, delivered the opinion of the court:

Prior to July 30, 1956, the plaintiff was on the Civil Service register for Food Specialist, GS-7 (Options: Institutional Feeding, Equipment and Preservation). The register for these positions expired on June 30, 1956. After that the plaintiff was on no Civil Service register. However, on July 30, 1956, he was given a “Temporary AppointmentPER” (Pending Establishment of a Register) to the position of Inspector (Non-Perishable Subsistence Supplies), GS-7, at the New York Quartermaster Market Center, Department of the Army. He was removed from this position, the title of which in the meantime had been changed to “Preserved Food Inspector”, on July 22, 1957, on the charge that he had refused to obey orders.

After proceedings which will be described hereinafter, the plaintiff was restored to his position on January 19, 1959, but he was not paid for the period between his discharge and his reinstatement.

After his discharge, the plaintiff resorted to various administrative reviews, without avail. He commenced an action in the United States District Court for the District of Columbia. No answer was filed on behalf of the Army, and the United States Attorney made a motion that the matter be remanded to the Army for further administrative action. The court granted that motion. The Army thereupon granted the plaintiff a grievance hearing. The Government's representative conceded before the Grievance Committee that the plaintiff's removal was unwarranted and illegal and was contrary to the Army's personnel regulations. The Army's letter advising him of his reinstatement said:

The complete case has been reviewed by the Grievance Committee of this installation and the Committee's recommendation to restore you to the position of Preserved Food Inspector, GS-1905–7, $4980 per annum is approved.

It is felt that the disciplinary action taken was not in consonance with the Department of the Army recommended Table of Penalties.

154 Ct. Cl. Opinion of the Court The plaintiff's reinstatement was effective as of January 19, 1959. He was placed upon the payroll as a new employee without retroactive pay or step increases, and he was denied seniority rights.

Section 900-57–20 of the Manual of Depot Operating Procedures provided :

All actions will be based on the following principles:
1. Fair and impartial treatment.
2. Like penalties for like offenses.
3. Use of Table of Standard Penalties.

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6(a). A removal is a permanent separation of an employee, and will be used when such action is based on an employee's willful action or upon carelessness beyond reasonable excuse. The action will be applied regardless of whether the employee occupies a temporary or permanent position and will be in accordance with Table of Standard Penalties (Appendix A).

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7(c). It is the policy of the Department of the Army to afford maximum protection to its employees against arbitrary or unfair action. The circumstances surrounding separation actions will always be completely investigated and made a matter of record before any action is initiated.

TABLE OF STANDARD PENALTIES (Appendix A):

The following table of penalties for delinquency or misconduct will be used as a guide in imposing disciplinary action to assure like penalties for liko offenses throughout the Depot. It is extremely important that the principle of like treatment be adhered to.

This list of offenses and penalties set forth below
may not successfully meet the demands of all situa-
tions, and it will be necessary for supervisors to use
judgment in determining proper action for viola-
tions not covered. Final decision as to the action
to be taken will rest with the responsible
supervisor. * * *
OFFENSES-INSUBORDINATION (REFUSAL TO OBEY

ORDERS, IMPERTINENCE, LIKE OFFENSES)
PENALTIES:

1st offenseOfficial written reprimand
2nd offense-3 day suspension
3rd offense—5 day suspension or removal.

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