B-206117, SEP 21, 1982

B-206117, SEP 21, 1982

DIGEST: A PRIMA FACIE CASE OF CARRIER LIABILITY IS NOT ESTABLISHED WHERE THE SHIPPER FURNISHES NO SUBSTANTIVE EVIDENCE TO SUPPORT HIS ALLEGATION THAT HE TENDERED TO THE CARRIER PROPERTY THAT HE LATER CLAIMS WAS LOST.

PAUL ARPIN VAN LINES, INC.:

PAUL ARPIN VAN LINES, INC., APPEALS A SETTLEMENT OF OUR CLAIMS GROUP DISALLOWING ITS CLAIM FOR REIMBURSEMENT OF $54, AN AMOUNT WHICH HAD BEEN SET OFF FROM MONIES OTHERWISE DUE ARPIN AFTER ARPIN WAS FOUND LIABLE FOR THE LOSS OF TWO CHINA PLATTERS ALLEGEDLY CONTAINED IN A SHIPMENT OF HOUSEHOLD GOODS BELONGING TO A MEMBER OF THE ARMY. ARPIN TRANSPORTED THE SHIPMENT FROM FORT SILL, OKLAHOMA, TO FORT GORDON, GEORGIA, UNDER GOVERNMENT BILL OF LADING M-3624888. ARPIN CONTENDS THAT IT SHOULD NOT BE LIABLE FOR THOSE ITEMS BECAUSE OF THE ABSENCE OF ANY PROOF THAT THEY WERE TENDERED TO ARPIN FOR TRANSPORTATION. ARPIN ALSO BELIEVES THAT THE METHOD BY WHICH THE ARMY COMPUTED THE SETOFF WAS IN ERROR.

WE SUSTAIN THE APPEAL.

THE ARMY ALLOWED THE MEMBER'S CLAIM AGAINST ARPIN FOR THE LOSS OF THE TWO CHINA PLATTERS APPARENTLY BECAUSE ARPIN WAS RESPONSIBLE FOR PACKING THE MEMBER'S HOUSEHOLD GOODS AND BECAUSE THE MEMBER ACKNOWLEDGED IN WRITING THE CRIMINAL PENALTIES FOR FILING A FALSE CLAIM. SINCE THE DETAILED INVENTORY OF THE MEMBER'S HOUSEHOLD GOODS, PREPARED BY ARPIN, DID NOT SPECIFICALLY LIST THE ITEMS CLAIMED TO BE LOST, THE ARMY DETERMINED THE AMOUNT OF THE SETOFF BY ASSIGNING THE TWO PLATTERS TO A SHIPPING CARTON THAT HELD RELATED ITEMS ("DISH PACK, CHINA") AND CALCULATING ARPIN'S LIABILITY BASED ON THE WEIGHT OF THAT CARTON. OUR CLAIMS GROUP AGREED THAT ARPIN WAS LIABLE, AND ALSO DETERMINED THAT THE ARMY'S METHOD OF CALCULATING THE SETOFF WAS PROPER.

ARPIN ARGUES THAT IT SHOULD NOT BE LIABLE FOR THE ITEMS ALLEGEDLY LOST BECAUSE OF THE ABSENCE OF ANY EVIDENCE THAT THOSE ITEMS WERE TENDERED TO ARPIN FOR TRANSPORTATION. WE AGREE.

TO ESTABLISH A PRIMA FACIE CASE OF CARRIER LIABILITY, THE SHIPPER MUST SHOW: (1) THAT HE TENDERED THE PROPERTY TO THE CARRIER IN A CERTAIN CONDITION; (2) THAT THE PROPERTY WAS NOT DELIVERED BY THE CARRIER OR WAS DELIVERED IN A MORE DAMAGED CONDITION; AND (3) THE AMOUNT OF LOSS OR DAMAGE. SEE MISSOURI PACIFIC RAILROAD CO. V. ELMORE & STAHL, 377 U.S. 134 (1965). ONLY THEN DOES THE BURDEN OF PROOF SHIFT TO THE CARRIER TO SHOW THAT IT WAS NOT LIABLE FOR THE LOSS OR DAMAGE.

THE INVENTORY HERE DID NOT INDICATE THAT THE ITEMS ALLEGEDLY LOST WERE TENDERED TO ARPIN, WHICH IS WHY THE ARMY HAD TO ASSIGN THE ITEMS ARBITRARILY TO A SPECIFIC CARTON BEFORE CALCULATING THE SETOFF. CLEARLY, PROOF OF TENDER - THE FIRST ELEMENT OF A PRIMA FACIE CASE - WOULD BE ESTABLISHED WHERE THE INVENTORY LISTS THE ITEMS THAT THE SHIPPER LATER CLAIMS ARE LOST. SINCE THE BURDEN OF ESTABLISHING A PRIMA FACIE CASE AGAINST A CARRIER FOR LOST PROPERTY RESTS WITH THE SHIPPER, IT THUS IS ADVISABLE FOR THE SHIPPER TO ENSURE THAT THE INVENTORY IS AS DETAILED AS IS PRACTICABLE.

IN ADDITION, THE RECORD SHOWS THAT ARPIN DELIVERED ALL OF THE CARTONS LISTED ON THE INVENTORY. NOWHERE DOES THE RECORD SUGGEST THAT ANY OF THE CARTONS HAD BEEN OPENED BEFORE DELIVERY TO THE MEMBER AT HIS NEW DUTY STATION.

UNDER THESE CIRCUMSTANCES, WE BELIEVE THAT ALLOWING THE MEMBER TO ESTABLISH TENDER OF HIS HOUSEHOLD GOODS ON THE STRENGTH OF HIS UNSUPPORTED, SELF-SERVING ACKNOWLEDGMENT PLACES AN UNREASONABLE BURDEN ON THE CARRIER WITH REGARD TO ITS ABILITY TO REBUT THE CLAIM. PAUL ARPIN VAN LINES, INC., B-205084, JUNE 2, 1982. THEREFORE, WE CONCLUDE THAT THE RECORD DOES NOT ESTABLISH A PRIMA FACIE CASE OF CARRIER LIABILITY IN THIS INSTANCE. THE APPEAL IS SUSTAINED.

BECAUSE WE HAVE SUSTAINED ARPIN'S APPEAL, WE NEED NOT ADDRESS THE QUESTION OF WHETHER THE ARMY'S METHOD OF CALCULATING THE SETOFF WAS PROPER. WE ARE INSTRUCTING OUR CLAIMS GROUP TO ALLOW ARPIN'S CLAIM FOR $54.