ACCOUNT STATED.

ACQUIESCENCE.

INDEX-DIGEST

See Contracts.

See Estoppel.

ACTIVE DUTY PAY. See Military Pay.

ADMINISTRATIVE CONSTRUCTION. See Statutes-Construction and

CAREER COMPENSATION ACT. See Military Pay.

CARRIERS. See also Constitutional Law.

CARRIAGE OF GOODS.

Applicable tariff.

Interpretation and construction of tariff.

Where the language on a bill of lading applicable to transportation
of goods by motor carrier is ambiguous, the court will interpret it
in the light of the circumstances and the actions of the parties
to the contract of carriage. Benton Rapid Express, 360.

Carriers 192

Substantial compliance with conditions of tariff.

Where the carrier offered the Government export rates on Gov-
ernment traffic to Pacific coast ports for export and the Government
complied with all the conditions entitling it to the lower export
rate except for the furnishing of a certificate to the carrier certi-
fying that the traffic was loaded for a port within the destination
area covered by the Export Tariff, there has been substantial
compliance with the conditions and the Government is entitled to
the lower export rate. Union Pacific Railroad Co., 619.
Carriers 192

755

145 C. Cls.

CARRIERS-Continued

CARRIAGE OF GOODS-Continued

Warsaw Convention.

Limitation of actions.

Article 29 of the Warsaw Convention (49 Stat. Part 2, 3000) pro-
vides that the right of a shipper to sue for damages is extinguished
if action is not brought within two years. Where the Government-
shipper did not bring suit within the two years specified, it may
not, after the expiration of the two years, assert its claim by way
of set-off or counterclaim in an action brought by the plaintiff for
unpaid transportation charges, even though within the two-year
period the Government recouped its losses by unilaterally withhold-
ing the amount claimed due it from other moneys owing to the
plaintiff, such withholding not serving to toll the two-year statute
of limitations. Flying Tiger Line, 1.

Limitation of Actions 41, 104%

Limitation of liability.

Article 9 of the Warsaw Convention (49 Stat. Part 2, 3000) provides
that if a carrier accepts goods without requiring an air waybill
from the shipper containing, inter alia, a statement that liability
is limited, i.e., notice of the waiver of the ordinary rules of liability,
the carrier cannot avail itself of the limitation of liability provided
for in the Convention. Where the plaintiff-carrier failed to require
the Government shipper to make out an air waybill, plaintiff is
precluded from availing itself of the limitations on liability provi-
sion of the Convention. The requirement that the carrier give the
shipper notice of the waiver of the ordinary rules of liability is
not satisfied by a reference in the Charter Agreement to a second
document (the applicable tariff) which in turn referred to a third
document (official rules), which third document contained a state-
ment that the carrier's liability was subject to the limitations of
the Warsaw Convention. Flying Tiger Line, 1.

Carriers 152, 153

CIVILIAN PAY.

ADMINISTRATIVE REMEDIES.

Failure to exhaust.

Where a departmental appeal or some other administrative remedy
is provided, failure to pursue such appeal or remedy will usually
serve as a bar to recovery in a suit brought in the Court of Claims.
Adler, et al. v. United States, 134 C. Cls. 200, cert. denied 352 U.S.
894; Majesic v. United States, 137 C. Cls. 188, cert. denied 355 U.S.
826. Kooy, 31.

145 C. Cls.

CIVILIAN PAY-Continued

DISMISSAL.

Appeal to Civil Service Commission.

Review of agency action-scope of.

Where a Government employee appeals his discharge for insubordi-
nation to the Civil Service Commission and the insubordination of
which the employee was found guilty by the employing agency was
his refusal to obey an order of reassignment, which he claimed was
motivated by purely political considerations rather than for the
good of the Government service, it was the duty of the Civil Service
Commission to decide the issue of whether such reassignment was
for political purposes even though plaintiff refused to accept the
assignment. If the order of reassignment was prompted by political
considerations it was unlawful and did not have to be obeyed and
in that event the plaintiff's refusal to obey it was not insubordination
and his dismissal was unlawful. Schmidt, 632.

Insubordination-what constitutes.

The refusal by a Government employee to obey an unlawful order
of his employing agency does not amount to insubordination which
will support a discharge. Schmidt, 632.

United States 36

Regulation of executive department.

Administrative interpretation of.

Where a Treasury Department regulation providing for disciplinary
action against employees who "without just cause persistently refuse
or habitually neglect to pay personal and family debts" has been
interpreted by the Department as applying only to situations where
there have been frequent complaints against an employee by his
creditors, a departmental letter of charges and a dismissal decision
referring to a single unpaid debt of the employee is insufficient to
support the dismissal under the regulation of the Treasury Depart-
ment. McGuire, 17.

United States 36

Failure of Government to comply with.

Where a Government employee who fails to report interest income
in his income tax returns is thereafter dismissed for suitability
reasons but his removal is effected under departmental regulations
pertaining to security procedures, the section in such regulations
entitled "Suitability Decisions" takes coloring from its surroundings
and implies suitability from the standpoint of security rather than
suitability from the standpoint of a failure to report interest income.
The employee's removal under regulations not applicable to his
situation violated the regulations of the Internal Revenue Service

145 C. Cls.

CIVILIAN PAY-Continued

DISMISSAL-Continued

Regulation of executive department—Continued

and was prejudicial to the employee in that it deprived the Regional
Commissioner of an opportunity, which he would have had if the
proper regulations had been followed, to exercise his broad discre-
tion as to the kind of disciplinary action to be taken. Starzec, 25.
Internal Revenue 1221

Recovery-measure of.

Where plaintiff is dismissed from his civilian Government position
in violation of a valid Treasury Department regulation issued pur-
suant to section 161 of the Revised Statutes, and he is not thereafter
reinstated, the limitations on the recovery of back pay imposed
by section 6(b)(1) of the 1948 amendment to the Lloyd-La Follette
Act (62 Stat. 354, 355) are not applicable and the plaintiff is entitled
to recover any in-grade and statutory increases which he would
have earned during the period of removal, plus payment for any
annual leave he would have earned during that period, less his
outside earnings. Crocker v. United States, 130 C. Cls. 567; Hynning
v. United States, 141 C. Cls. 486. McGuire, 17.
United States 39(8)

Tardy compliance with by Government.

Where a statement of charges and a dismissal decision of an em-
ploying agency is insufficient under the regulations of the agency
or department because both referred to only one instance of failure
to pay personal debts, whereas the regulation referred to frequent
or persistent failure to pay debts as a cause for removal, the dis-
missal is illegal and a later attempt by the employing agency to
cure these defects by notifying the employee that his discharge had
actually been based upon other instances of his failure to pay per-
sonal debts will not serve to cure the illegality of the dismissal.
McGuire, 17.

United States 36

Reinstatement.

Right to administrative payment of back pay.

Where a Government employee is dismissed and later reinstated
on the ground that his dismissal was unjustified and unwarranted,
he is entitled to the administrative payment of back pay lost under
section 6(b) (1) of the 1948 amendment to the Lloyd-La Follette
Act (62 Stat. 354). But where his reinstatement is not on the
ground that his dismissal was unjustified and unwarranted but
rather because the employee's long unblemished Government service
prior to his proper removal justified his reinstatement, he is not
entitled to the administrative payment of the lost pay under the
1948 amendment to the Lloyd-La Follette Act. Kooy, 31.
United States

39(8)

145 C. Cls.

CIVILIAN PAY-Continued

DISMISSAL-Continued

Reinstatement-Continued

Right to back pay following reinstatement.

Where removal of plaintiff for inefficiency was set aside by the
Board of Appeals and Review of the Civil Service Commission on
the ground that the removal action was procedurally defective,
the plaintiff is entitled to recover for loss of pay from the time of
the removal until his subsequent reinstatement, the recovery to be
limited to the amount allowed under the terms of the 1948 amend-
ment (62 Stat. 354) to the Lloyd-La Follette Act (5 U.S.C. (1952)
§ 652(b) (2)). Mayer, 181.

A member of the classified civil service transferred to an excepted
position under the Mutual Security Act of 1954, 68 Stat. 832, is
entitled to the benefits of section 528 of the Foreign Service Act,
60 Stat. 999, 1010, requiring his reinstatement in the Government
agency by which he had been regularly employed; and where such
member is arbitrarily discharged from his excepted position, he
has been deprived of his right to reinstatement under the Mutual
Security Act, giving rise to a claim over which this court has
jurisdiction as a claim arising under an act of Congress. Proster-
man v. United States, 144 C. Cls. 692. Clark, 374.

Courts 449(1)

United States 39 (11)

FOREIGN SERVICE RETIREMENT ANNUITY.

Military service credit.

When allowable.

Where a statute (Foreign Service Act of 1946, 60 Stat. 999) confers
upon "participants" the right to include prior military service in
the computation of their retired pay and then defines "participants"
as Foreign Service officers who were contributing to the retirement
system on the effective date of the act, persons already retired on
such date were not intended to have the benefit of such additional
credit. Fox, 186.

An order of reassignment motivated by purely political reasons is
not lawful because it is violative of the Civil Service Act of 1883,
22 Stat. 403, 407. Schmidt, 632.

Officers 69.13