CARRIERS.

154 Ct. Cl.

CARRIAGE OF GOODS BY AIR.

Control and regulation of common carriers.

Schedule of rates.

Under the provisions of the Civil Aeronautics Act, 52 Stat. 973,
there can be no waiver of the carrier's obligation to enforce charges
required by published tariffs, and estoppel cannot be invoked
against the carrier to avoid payment of the published tariff which
has the force of law. Slick Airways, 417.

Although a tariff as the primary measure of a rate may not be
altered or changed by extraneous incorporations, it may, in the
absence of law or regulation to the contrary, be completed by refer-
ence to guides or standards which are outside the tariff, and such a
guide may be found in the contract of the parties. Slick Airways,
417.

Carriers 12(1)

Reduced rates for Government-owned cargo.

Section 22 of the Interstate Commerce Act, 24 Stat. 379, 387, as
amended, 49 U.S.C. § 22, is not applicable to air carriers. Slick
Airways, 417.

Aviation 102

Under the provisions of section 403(b) of the Civil Aeronautics Act,
52 Stat. 973, 992, 49 U.S.C. § 483 (b) (1952), air carriers are not
authorized to furnish free or reduced rates for the Government.
Slick Airways, 417.

Under the provisions of the Civil Aeronautics Act, the Government
has the right to reduced or preferential rates only pursuant to tariffs
lawfully published and filed by the carrier and then only when
circumstances and conditions surrounding the transportation are
substantially different from those of private shipments of air cargo.
Slick Airways, 417.

Aviation 102

Sufficiency of tariff.

Where a published air tariff does not contain a method of computing
mileages but the contract for transportation between the parties
does, the tariff is valid and the method of mileage computation
contained in the contract should be followed. United States v.
Associated Air Transport, Inc., 275 F. 2d 827, 838. Slick Airways,
417.

Aviation 102

154 Ct. Cl.

CARRIERS—Continued

CARRIAGE OF GOODS BY MOTOR CARRIER.
Loss or injury to goods.

Presumptions and burden of proof.

Since a common carrier is liable as an insurer under its contract
to carry safely, the burden of showing that the loss of or injury to
freight was due to the fault of the consignee is on the carrier.
Gordons Tranports, 1.

Carriers 132

Sufficiency of evidence of carrier negligence.

Proof that after a motor carrier's trailer was loaded with cartons of
aircraft landing gears, brake assemblies and parts, the trailer was
overturned in a ditch full of water, that some of the cartons became
very wet, that the wet and dry cartons were thereafter reloaded into
one trailer with only cardboard sheets to protect the dry from the
wet cartons, that contemporaneously with the unloading of the
freight at the consignee's Air Force Base an employee of the con-
signee who handled the unloading noted on the bill of lading that
the shipment was received in a very wet condition, and the following
morning the carrier's authorized claim agent inspected the shipment
and endorsed on the bill under the above notation that the carrier's
agent acknowledged the discrepancy, made out a case of negligence
of the carrier and placed on it the burden of showing that it was
not responsible for the injuries to the freight. Gordons Transports, 1.
Carriers 132

Under section 20 (11) of the Interstate Commerce Act, 24 Stat. 379,
as amended, 49 U.S.C. § 20(11), a common carrier is liable for any
loss, damage or injury to property caused by it and no contract,
rule, regulation, etc., will exempt the carrier from liability. Ac-
cordingly, the carrier's agreement with the United States shipper
that the United States will indemnify the carrier against all loss
or damage caused by the Government's property being shipped by
the carrier, will not relieve the carrier from liability for loss of the
goods caused by the carrier's own negligence even when the Gov-
ernment was also negligent in not properly describing the danger-
ous character of the goods shipped as it was required to do by
regulations of the Interstate Commerce Commission and by the
bill of lading. Union Pacific Rd. Co., 427.

Carriers 147

CHANGED CONDITIONS. See Contracts.

CIVIL AERONAUTICS ACT. See Carriers.

154 Ct. Cl.

CIVILIAN PAY.

DISMISSAL.

Administrative remedies.

Failure to exhaust.

In general, the court will not entertain the claim of a civilian Gov-
ernment employee who has been dismissed from the service under
the provisions of the Lloyd-La Follette Act where the employee has
failed to exhaust available administrative remedies.
United States 39 (8)

Law applicable.

Performance Rating Act not applicable.

Hutton, 34.

When a civilian Government employee (nonveteran) is dismissed
from his position for cause under the provisions of the Lloyd-La
Follette Act, 37 Stat. 555, as amended, 62 Stat. 355, and the cause
is unsatisfactory performance of duties, his claim in this court must
be for violation of his rights under the Lloyd-La Follette Act or
applicable regulations. In such a case a claim that there was
procedural error committed by the employing agency in connection
with the employee's performance rating under the Performance
Rating Act of 1950, 64 Stat. 1098, is no basis for a suit for back pay.
Atkinson v. United States, 144 Ct. Cl. 585. Hutton, 34.
United States 39 (8)

Regulation of executive department.

Permissive regulation.

Where a governmental official is not required to issue personnel
regulations for the separation of noncitizen employees serving our
Government in foreign posts, and where the employing depart-
ment's regulations merely suggest what good procedural practices
are and suggest that, before removal, foreign employees be given
the benefit of such procedures, a summary dismissal of a foreign
employee is not procedurally defective or violative of any binding
regulation of an executive department. Khuri, 58.
United States

36

Security Act of 1950 dismissal.

Recovery-measure of.

Annual leave accumulations.

Where an employee is improperly dismissed from his Government
position, he continues to accumulate annual leave during the period
of wrongful suspension where his dismissal is under the Security
Act of August 26, 1950, 64 Stat. 476, even though such accumula-
tion exceeds the employee's individual ceiling, and he is entitled to
recover payment for such annual leave in addition to his back pay.
Hynning v. United States, 141 Ct. Cl. 486. Habicht, 838.
United States 39 (8)

154 Ct. Cl.

CIVILIAN PAY-Continued

DISMISSAL-Continued

Security Act of 1950 dismissal-Continued

Recovery-measure of-Continued

Annual leave accumulations-Continued

A Government employee who is held by the court to have been
wrongfully dismissed from his Government position [under the
Security Act of August 26, 1950, 64 Stat. 476] may not recover the
value of the annual leave he would have earned during that pe-
riod in excess of his individual ceiling. Hynning v. United States,
141 Ct. Cl. 486, overruled. Zeiger v. United States, 155 Ct. Cl.
353.

Habicht, 852.

United States 39 (8)

Discretion of agency head as to amount of.

The Security Act of 1950, 64 Stat. 476, confers on agency heads
discretion to pay all or any part of the back pay lost by an employee
discharged and later reinstated under the provisions of the act, and
a decision of the agency head to pay a reinstated employee his
salary only from the date of wrongful dismissal up to the date on
which he was notified that his position had been abolished was
not an abuse of such discretion, despite the fact that later on his
dismissal was found to be unjustified and unwarranted and his
reinstatement was ordered. Habicht, 838.

United States 39 (8)

Temporary position.

Regulation of executive department-claim under.

Where a civilian employee of the Department of the Army is dis-
missed 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 depart-
mental 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). Daub, 434.
27

Armed Services

DUAL EMPLOYMENT RESTRICTION.

Office.

What constitutes.

A retired officer of the United States (Regular) Navy retired for
longevity "holds an office” within the meaning of the Act of July 31,
1894, 28 Stat. 162, 205, as amended by the Act of May 31, 1924, 43
Stat. 245, 5 U.S.C. § 62, and may not hold another office in the civilian
Government service entitling him to pay. Hostinsky, 443.
Armed Services 13.5 (11)

154 Ct. Cl.

CIVILIAN PAY-Continued
OFFICE HELD ILLEGALLY.

Right to pay.

Where a person holds a Government office illegally, he may not re-
ceive the salary of that office even though he performs the duties of
the office. Royer v. United States, 59 Ct. Cl. 199, aff'd 268 U.S. 394,
distinguished. Hostinsky, 443.

Where a downgrading action is taken pursuant to the procedures
outlined in the Classification Act of 1949, as amended, (June 18, 1956,
70 Stat. 291) and the employee in question neither alleges nor shows
any arbitrary or capricious action on the part of the employing
agency or the Civil Service Commission, the decision of the Commis-
sion upholding the downgrading action is final. Eclov v. United
States, 137 Ct. Cl. 341. Hofflund, 66.

Officers 72(2)

District Court declaratory judgment and order.

Retroactive compliance with by employing agency.

Where the district court renders a declaratory judgment that a
downgrading action was subject to the provisions of section 12 of
the Veterans' Preference Act of 1944, 58 Stat. 387, 390, and orders
the employing agency to comply with the statute as of the date of
the original downgrading, the making of a retention register as of
such earlier date showing that plaintiff would have been properly
reached for downgrading, was compliance with the order of the
district court and plaintiff is not entitled to recover back pay in
the Court of Claims. Hofflund, 66.

Appeal to Civil Service Commission from reinstatement without
back pay.

Where a civilian Government employee who has been wrongfully
suspended from her position appeals her suspension to the employ-
ing agency authorities and also to the Regional office of the Civil
Service Commission, and where her appeal within the employing
agency is successful and she is reinstated in her position but without
an award of back pay, her failure to appeal thereafter to the Civil
Service Commission does not prejudice her right to recover back
pay for the period of suspension because her reinstatement made her
appeal to the Commission moot in any event. Under these circum-
stances there has been no failure to exhaust administrative remedies.
Zaverl, 448.

United States 39 (8)