B-144828, MAY 2, 1962

B-144828, MAY 2, 1962

TO THE LONG ISLAND RAIL ROAD:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 22, 1962, ACKNOWLEDGED MARCH 29, ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, AND TO YOUR LETTER OF THE SAME DATE TO HONORABLE FRANK J. BECKER, HOUSE OF REPRESENTATIVES, WHICH HAS BEEN REFERRED TO US FOR REPORT, REQUESTING A FURTHER REVIEW OF THE DISALLOWANCE DATED MARCH 29, 1957, OF YOUR SUPPLEMENTAL BILL 861/36122 RECLAIMING THE SUM OF $2,545.35 DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU ON ACCOUNT OF THE LOSS OF 46 BOXES OF SKIS IN 1946.

THE DISALLOWANCE WAS PREVIOUSLY REVIEWED AT THE REQUEST OF MR. ANGELO GRANATELLI, ASSISTANT GENERAL SOLICITOR OF YOUR RAILROAD, AND WAS SUSTAINED BY OUR LETTER OF APRIL 20, 1961, B-144828, WHICH SETS FORTH THE FACTS RELATING TO THE SHORTAGE AND CITES CASES HOLDING THAT "THE BURDEN OF PROVING THAT A LOSS OCCURRED IS, OF COURSE, ON THE SHIPPER BUT IT SATISFIES SUCH BURDEN BY ESTABLISHING DELIVERY TO THE CARRIER AND ITS NON- RETURN; " THAT "THE WAYBILL OR BILL OF LADING ITSELF CONSTITUTES WEIGHTY AND PRIMA FACIE EVIDENCE OF THE DELIVERY TO THE CARRIER OF THE GOODS IN QUANTITY AND QUALITY DESCRIBED THEREIN" AND "WHEN COUPLED WITH EVIDENCE THAT THE CARRIER RETURNED GOODS IN LESSER QUANTITY OR QUALITY THAN DESCRIBED IN THE WAYBILL OR BILL OF LADING, THE SHIPPER'S BURDEN OF PROOF HAS BEEN MET FULLY.' JOSEPH TOKER CO. V. LEHIGH VALLEY R.CO., 97 A.2D 598, 600. THE CITED CASES FURTHER HOLD THAT A COMMON CARRIER'S LIABILITY FOR LOSS OF PROPERTY IS ABSOLUTE EXCEPT IN CASES RESULTING FROM ACTS OF GOD OR PUBLIC ENEMY, FROM INHERENT NATURE OF THE PROPERTY, OR FROM DEFAULT OF THE SHIPPER; AND, THE BURDEN OF ESTABLISHING STRICTLY THAT THE LOSS RESULTED FROM A CAUSE FOR WHICH THE CARRIER IS NOT LIABLE RESTS UPON THE CARRIER. APPLYING SUCH LAW TO THE FACTS SHOWN IN THE RECORD WHICH BRIEFLY STATED ARE THAT OF 315 BOXES OF SKIS SHIPPED FROM UMATILLA ORDNANCE DEPOT, ORDNANCE, OREGON, ONLY 269 WERE RECEIVED AT THE NEW YORK PORT OF EMBARKATION, BROOKLYN, NEW YORK, THE DESTINATION, 46 BOXES CHECKING SHORT, WE SUSTAINED THE DISALLOWANCE OF THE CLAIM. WE DID THIS, NOTWITHSTANDING THE CARRIER'S CONTENTION THAT THE SHIPMENT WAS SEALED AT ORIGIN AND REMAINED SO AT DESTINATION AND HENCE NO LOSS LIKELY WAS INCURRED, SINCE THE RECORD HERE SHOWS THAT WHILE THESHIPMENT WAS SEALED AT ORIGIN WITH SEALS Y-546790 AND Y-546791, WHEN THE CAR WAS OPENED AT DESTINATION SEAL Y -546791 WAS MISSING AND IN ITS PLACE SEAL H-857025 WAS SUBSTITUTED, INDICATING THE CAR HAD BEEN OPENED AND HAD NOT MOVED UNDER A CLEAR SEAL RECORD.

YOUR LETTER URGES RECONSIDERATION OF OUR PRIOR DECISION HOLDING YOUR COMPANY LIABLE FOR THE LOSS ON THREE BASES WHICH WILL BE CONSIDERED IN THE ORDER PRESENTED:

(1) YOU STATE THE CAR WAS LOADED AT ORIGIN BY THE GOVERNMENT AND SEALED BY THE GOVERNMENT WITH SEALS Y-546790-1; THAT THE CONTENTS OF THE CAR WERE NOT REQUIRED TO BE NOR WERE THEY CHECKED BY THE UNION PACIFIC RAILROAD, THE ORIGIN CARRIER, AND, THAT SUCH CARRIER MERELY ACCEPTED A CAR PURPORTING TO CONTAIN CERTAIN ITEMS AS STATED IN THE BILL OF LADING AND PROTECTED BY CERTAIN SEALS.

ON THE BILL OF LADING, ISSUED BY THE UNION PACIFIC RAILROAD COMPANY ON FEBRUARY 7, 1946, THE ORIGIN CARRIER ADMITS IT RECEIVED THE PROPERTY INVOLVED. SUCH BILL SIGNED BY AN AGENT OF THE UNION PACIFIC COMPANY INDICATES THAT THERE WAS "RECEIVED BY THE TRANSPORTATION COMPANY NAMED ABOVE, SUBJECT TO CONDITIONS NAMED ON THE REVERSE HEREOF, THE PUBLIC PROPERTY HEREINAFTER DESCRIBED, IN APPARENT GOOD ORDER AND CONDITION (CONTENTS AND VALUE UNKNOWN) TO BE FORWARDED TO DESTINATION BY THE SAID COMPANY AND CONNECTING LINES * * *" "315 BX SKIS" THE CUBIC MEASUREMENT AND WEIGHT BEING SHOWN. THIS ADMISSION TO HAVING RECEIVED 315 BOXES OF SKIS CONSTITUTES, IN THE WORDS OF THE COURT DECISION CITED ABOVE,"WEIGHTY AND PRIMA FACIE EVIDENCE OF THE DELIVERY TO THE CARRIER OF THE GOODS IN QUANTITY * * * DESCRIBED THEREIN" WHICH WE WOULD NOT, IN CARRYING OUT OUR DUTIES OF SETTLING AND ADJUSTING CLAIMS IN FAVOR OF OR AGAINST THE UNITED STATES, BE WARRANTED IN FAILING TO GIVE PROPER WEIGHT OR DISREGARDING. SEE ALSO CHICAGO AND N.W.RY.CO. V. BEWSHER, 6 F.2D 947, 954, CERTIORARI DENIED 270 U.S. 641; AND NELSON V. WOODRUFF, 66 U.S. 156, 160. THERE IS NO NOTATION ON THE BILL OF LADING AS TO "SHIPPER'S LOAD AND COUNT" WHICH MIGHT THROW ON THE SHIPPER THE BURDEN OF PROVING THE AMOUNT DELIVERED BY THE SHIPPER. SEE 49 U.S.C. 101.

(2) YOU STATE THAT WHEN THE CAR WAS PLACED ON THE INDUSTRIAL INTERCHANGE TRACK AT BAY RIDGE ARMY BASE ON FEBRUARY 23, 1946, AT 1:30 P.M., THE ORIGINAL SEALS (Y-546790 AND Y-546791) WERE INTACT AND COMMENT THAT THE STATEMENT IN OUR DECISION OF APRIL 20, 1961, THAT "THE CAR ARRIVED AT DESTINATION ON OR ABOUT FEBRUARY 26, 1946" IS VAGUE AND INACCURATE. THE CONSIGNEE'S CERTIFICATE ON THE BILL OF LADING IS DATED FEBRUARY 26, 1946. THE REPORT OF SURVEY SHOWS THE CAR WAS OPENED, FEBRUARY 26, 1946, THAT UNLOADING BEGAN AND WAS COMPLETED ON THAT DATE AND THE GOVERNMENT INSPECTOR'S REPORT SHOWS HE PERSONALLY CHECKED THE SHIPMENT ON THAT DATE. SUCH CONTEMPORANEOUS RECORDS SEEM CLEARLY TO ESTABLISH THE OCCURRENCES TO WHICH THEY CERTIFY ON FEBRUARY 26, 1946. YOUR ROAD HAS PRODUCED NO CONTEMPORANEOUS RECORD TO DISPROVE THE DATE USED BY US, AND YOUR STATEMENT AS TO WHAT SEALS WERE ON THE CAR AT DESTINATION APPEARS TO BE BASED ON RECORDS SAID TO HAVE BEEN DESTROYED, OR AFFIDAVITS MADE A CONSIDERABLE TIME SUBSEQUENT TO THE EVENT AND MADE LARGELY BY PERSONS HAVING NO PERSONAL KNOWLEDGE OF THE OCCURRENCE. THE ALLEGED DESTRUCTION OF SUPPORTING RECORDS EVEN THOUGH YOUR ROAD HAD KNOWLEDGE OF THE SHORTAGE SHORTLY AFTER THE CAR WAS OPENED AND INSPECTED IS NOT READILY UNDERSTANDABLE. IN THIS CONNECTION, IT IS NOTED THAT IN THE MOST NEARLY CONTEMPORANEOUS CORRESPONDENCE FROM YOUR COMPANY OF RECORD HERE, YOUR AGENT A. D. HOWE, PER LOUISE TOMANELLI, IN A LETTER DATED APRIL 13, 1946, ADDRESSED TO THE BROOKLYN ARMY BASE STATED "WE ARE UNABLE TO PLACE RESPONSIBILITY FOR THIS SHORTAGE.' DESPITE THE PASSAGE OF MORE THAN 16 YEARS FROM THAT DATE AND THE EXTENSIVE INVESTIGATION OF YOUR COMPANY, NO SATISFACTORY EVIDENCE HAS BEEN PRESENTED TO EXPLAIN THE SHORTAGE SO AS TO WARRANT OUR CONCLUDING THAT THE CARRIERS CONCERNED SHOULD BE RELEASED FROM THEIR LIABILITY AS INSURERS FOR SUCH LOSS.

(3) YOU INDICATE THAT IN YOUR INVESTIGATION OF THE MATTER, YOU DISCOVERED A WAR SHIPPING DOCUMENT, OF WHICH YOU HOLD A PHOTOSTATIC COPY INDICATING THERE WAS RECEIVED BY A PAUL SAVARESE 2/26/46 THE CAR BEARING SEALS 546790 -1 AND 857025-4 AND STATE THAT THE FACT THAT HE RECORDED SEALS 546790-1 IS PROOF THAT THE CAR DOORS HAD NOT BEEN OPENED BETWEEN ORIGIN AND DESTINATION. HOWEVER, AS YOU WERE ADVISED IN OUR LETTER OF MARCH 29, 1957,"THE PHOTOSTAT OF WAR DEPARTMENT SHIPPING DOCUMENT MENTIONED IN THE THIRD PARAGRAPH OF YOUR LETTER SHOWS THE NOTATION "WDSD PREPARED FROM DRAY TICKET BY WATER DIV. BAB NYPE CHECKED WITH TECHNICAL SERVICE AND THEREFORE IS NOT A TRUE COPY OF "SHIPPING DOCUMENT.'"

WE THEREFORE SEE NO PROPER BASIS FOR MODIFYING THE HOLDING IN OUR DECISION OF APRIL 20, 1961, THAT YOUR CLAIM WAS PROPERLY DISALLOWED AND WE ADHERE TO SUCH CONCLUSION.

IN ACCORDANCE WITH YOUR REQUEST WE TRANSMIT HEREWITH PHOTOSTATIC COPIES OF (1) THE FACE AND REVERSE OF THE BILL OF LADING, AND (2) THE REPORT OF SURVEY DATED APRIL 19, 1946, AND ITS ATTACHED EXHIBITS A AND B, THE LETTER OF A. D. HOWE DATED APRIL 13, 1946, MENTIONED ABOVE, AND THE AFFIDAVIT OF PAUL SAVARESE DATED MARCH 6, 1946. EXHIBIT C REFERRED TO IN THE SURVEY REPORT APPARENTLY WAS A COPY OF THE BILL OF LADING. WE REGRET THAT THE PHOTOSTATIC COPY OF THE BILL OF LADING--- WHICH WAS MADE FROM A MICROFILM OF THE ORIGINAL BILL--- THE ORIGINAL BILL HAVING BEEN DESTROYED UNDER OUR RECORDS DISPOSAL PROGRAM--- IS NOT AS CLEAR AS COULD BE DESIRED.