B-165654, DEC. 4, 1968

B-165654, DEC. 4, 1968

TO PAUL ARPIN VAN LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1968, REQUESTING REVIEW OF THE DISALLOWANCE BY LETTER OF JULY 18, 1968, FILE T-SR 013811-HAC, FROM OUR TRANSPORTATION DIVISION, OF YOUR CLAIM FOR REFUND OF THE SUM OF $324.88, WHICH AMOUNT HAD BEEN ADMINISTRATIVELY DEDUCTED FROM AMOUNTS OTHERWISE PAYABLE TO YOUR CORPORATION BECAUSE OF YOUR LIABILITY AT 30 CENTS PER POUND FOR THE PORTION OF A SHIPMENT OF HOUSEHOLD GOODS OF MAJOR GENE L. ROHR, TRANSPORTED UNDER GOVERNMENT BILL OF LADING C-6562303, DATED JUNE 27, 1966, WHICH WAS DAMAGED. MAJOR ROHR'S CLAIM AGAINST THE UNITED STATES FOR LOSS AND DAMAGES TO SUCH HOUSEHOLD GOODS UNDER 10 U.S.C. 2732 WAS ALLOWED BY THE DEPARTMENT OF THE AIR FORCE IN THE AMOUNT OF $906.65, AND HIS CLAIM AGAINST YOUR COMPANY INCIDENT THERETO WAS ASSIGNED TO THE UNITED STATES.

YOUR REQUEST FOR REVIEW IS BASED UPON SEVERAL POINTS ON WHICH YOU DISAGREE WITH THE LETTER OF JULY 18, 1968, OF OUR TRANSPORTATION DIVISION.

THE FIRST POINT YOU RAISE CONCERNS NOTATIONS BY MRS. BARBARA ROHR, THE CONSIGNEE'S WIFE WHO SIGNED THE RECEIPT FOR THE GOODS, INDICATING THAT SHE WAS DISSATISFIED WITH THE REMARKS MADE ON THE DELIVERY INVENTORY AS TO THE CONDITION OF THE EFFECTS. YOU MAKE REFERENCE TO SECTION 1, PARAGRAPH 40 OF THE TENDER OF SERVICE AS INDICATING THAT GENERAL TERMS SHOULD NOT BE USED AND ARE UNACCEPTABLE IN DESCRIBING THE CONDITION OF HOUSEHOLD GOODS IN MAKING INVENTORIES OF EFFECTS.

IT IS BELIEVED YOU ARE REFERRING TO THE TENDER OF SERVICE FORM PUBLISHED AS APPENDIX A OF DEFENSE SUPPLY AGENCY REGULATION (DSAR) 4500.1. AS YOU KNOW, PARAGRAPH 8 (B) (1) OF THAT REGULATION REQUIRES THAT CARRIERS EXECUTE AND OFFER A TENDER OF SERVICE TO THE COMMANDER, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS), IF THEY ARE TO BE CONSIDERED FOR PARTICIPATION IN MOVEMENT OF UNCRATED HOUSEHOLD GOODS FOR THE DEPARTMENT OF DEFENSE.

CHANGE 2, SECTION II, PART D, ENTITLED INVENTORY OF DEFENSE SUPPLY AGENCY REGULATION (DSAR) 4500.1 DATED JUNE 13, 1963, IN FORCE AT THE TIME THE SHIPMENT MOVED, PERTAINING TO UNCRATED HOUSEHOLD GOODS TRAFFIC PROVIDES, IN PART, AS FOLLOWS: "THE CARRIER WILL USE DILIGENCE TO RECORD IN THE INVENTORY * * * ANY UNUSUAL CONDITIONS OF THE GOODS SO RECEIVED. THE INVENTORY WILL LIST THE ARTICLES OF FURNITURE. WORDS SUCH AS -HOUSEHOLD GOODS' OR OTHER GENERAL DESCRIPTIVE TERMS WILL NOT BE USED. SPECIAL CARE WILL BE EXERCISED TO INSURE THAT THE INVENTORY REFLECTS THE TRUE CONDITIONS OF THE PROPERTY. GENERAL TERMS SUCH AS MARRED, SCRATCHED, SOILED, WORN, TORN, GOUGED, AND THE LIKE WILL BE AVOIDED UNLESS THEY ARE SUPPLEMENTED WITH A STATEMENT DESCRIBING THE DEGREE AND LOCATION OF THE EXCEPTION. (CARE IN THE PREPARATION OF THE INITIAL INVENTORY WILL ASSIST IN PROTECTING THE OWNER OF THE PROPERTY AND THE CARRIER IN THE EVENT OF LOSS AND/OR DAMAGE.) * * *.' FURTHER, PART G ENTITLED UNLOADING AND UNPACKING AT DESTINATION OF THE CITED REGULATION STATES: ,* * * UNPACKING SERVICE WILL CONSIST OF THE FOLLOWING: UNPACKING ALL BARRELS, BOXES, CARTONS, AND/OR CRATES ORIGINALLY PACKED BY THE CARRIER, AND PLACEMENT OF THE CONTENTS SO THEY ARE READILY AVAILABLE TO THE OWNER; RECORDING ALL DAMAGES FOUND WHILE UNPACKING AND FURNISHING THE OWNER A COPY OF SUCH RECORDS * * *.'

IT IS NOTED THAT ADMONITION IN THE SERVICE TENDER IS CAUTIONARY TO THE CARRIERS AND IS NOT NECESSARILY DIRECTED TO CONSIGNEES OR OTHERS. MOREOVER, IT IS DIRECTED TOWARD THE RECEIPT OF GOODS AT ORIGIN AND THE CARRIER'S INVENTORY, IT BEING NOTED THAT AT DESTINATION THE REGULATIONS MERELY STATE THAT ALL DAMAGES FOUND WHILE UNPACKING SHALL BE RECORDED AND THE OWNER FURNISHED A COPY OF SUCH RECORD.

YOU TAKE EXCEPTION TO THE DISALLOWANCE BECAUSE IT WAS POINTED OUT THAT A GOVERNMENT INSPECTION REPORT DATED SEPTEMBER 9, 1966, VERIFIED THAT THE LOSSES AND DAMAGES WERE SUSTAINED. YOU STATE THAT YOU DO NOT BELIEVE THE REPORT DOES VERIFY THE LOSS AND DAMAGE SINCE THE INSPECTION WAS MADE 15 DAYS AFTER DELIVERY. THE ACTUAL INSPECTION WAS MADE SEPTEMBER 7, 1966, AT THE OWNER'S RESIDENCE, 8319 MIDWOOD STREET, ALEXANDRIA, VIRGINIA, THE POINT OF DELIVERY. THUS THE PROPERTY HAD NOT BEEN MOVED BEYOND THE POINT AT WHICH YOUR AGENT MADE DELIVERY. THIS REPORT TAKEN IN CONJUNCTION WITH THE INSPECTION BY THE CONSIGNEE SHORTLY AFTER DELIVERY DOES, IN OUR VIEW, CONFIRM THE LOSS AND DAMAGES.

YOU ALSO CONTEND THAT NO CONSIDERATION IS BEING GIVEN TO THE DELIVERING DOCUMENTS. FIRST OF ALL, THE CONSIGNEE'S CERTIFICATE OF DELIVERY THAT THE PROPERTY WAS RECEIVED AT DESTINATION IN APPARENT GOOD ORDER AND CONDITION ON THE CONTRACT OF CARRIAGE GOVERNMENT BILL OF LADING C-6562303 WAS NOT SIGNED OR EXECUTED. IN THIS CONNECTION, THE PRIMARY PURPOSE OF A RECEIPT IS TO AFFORD A WRITTEN RECORD OF FACTS EXISTING AT THE TIME THE RECEIPT IS EXECUTED; AND, AS BETWEEN THE CARRIER AND THE SHIPPER, IF THE RECEIPT IS FOUND TO BE ERRONEOUS, IT MAY BE AMENDED TO REFLECT THE CONDITIONS WHICH ACTUALLY EXISTED. A CONSIGNEE'S CERTIFICATE OF DELIVERY (CLEAR OR OTHERWISE) IS THUS NOT CONCLUSIVE BUT IS SUBJECT TO EXPLANATION AND CORRECTION. SEE MEARS V NEW YORK, N.H. AND H.R.CO., 52 A.610 (1902).

THE RECORD SHOWS THAT BECAUSE OF THE LATE HOUR, ABOUT 10 P.M., THE UNPACKING ON THE DATE OF DELIVERY WAS STOPPED BECAUSE OF INADEQUATE LIGHTING. THE OWNER NOTED ON CERTAIN DELIVERY DOCUMENTS THAT HIS INSPECTION AT THE TIME OF DELIVERY WAS INCOMPLETE, AND INDICATED ON THE DOCUMENTS THAT THE DELIVERY WAS SUBJECT TO FINAL INSPECTION. ON THE STATEMENT OF ACCESSORIAL SERVICES PERFORMED, DD FORM 619, THERE IS THE NOTATION: "ALL ITEMS NUMBERED HAVE NOT BEEN ACCOUNTED FOR (THEREFORE) IT IS ALL SUBJECT TO OUR FINAL INSPECTION. ALSO ITEM NO. 9 IS DEFINITELY MISSING.'

THE COPY OF YOUR HOUSEHOLD GOODS DESCRIPTIVE INVENTORY BEARS MANY REMARKS BY THE OWNER'S WIFE, TO THE EFFECT, THAT SHE WAS INFORMED BY YOUR DRIVER THAT SHE COULD NOT REFUSE TO SIGN THE INVENTORY EVEN THOUGH SHE DID NOT AGREE WITH THE CONDITION OF THE ARTICLES AS INDICATED BY YOUR DRIVER; THAT THE FURNITURE WAS NOT IN THE CONDITION INDICATED; THAT SOME OF THE ARTICLES AND FURNITURE WERE NEW, HAVING NEVER BEEN MOVED BEFORE; THAT SOME SCRATCHES INDICATED WERE MERELY THE GRAIN OF THE WOOD AND THAT SOME DENTS WERE PIT MARKS. THESE SO-CALLED GENERAL REMARKS SEEM ENTIRELY REASONABLE UNDER THE CIRCUMSTANCES OF THE LATE HOURS AND POOR LIGHTING SINCE THE INVENTORY WAS SEVEN PAGES COVERING 280 ITEMS. MOREOVER, THE OWNER'S WIFE DID NOT POSSESS THE EXPERIENCE AND KNOWLEDGE WHICH THE DELIVERING DRIVER SO OBVIOUSLY POSSESSED.

FINALLY, YOU ASK WHY, SINCE YOU ISSUED YOUR CHECK NO. 317 IN THE AMOUNT OF $18 TO COVER THE MISSING CHEST OF DRAWERS SHOWN AS ITEM 9 OF THE INVENTORY, WAS THIS AMOUNT INCLUDED IN THE AMOUNT SETOFF. BY LETTER OF FEBRUARY 20, 1967, FROM CAPTAIN THOMAS L. SIEGEL, CLAIMS OFFICER, OFFICE OF THE STAFF JUDGE ADVOCATE, YOU WERE ADVISED IN PART AS FOLLOWS:

"YOUR CHECK FOR $18.00, ISSUED TO MAJOR ROHR, WILL BE TURNED OVER TO THE INSURANCE COMPANY. THIS WAS PAYMENT FOR A LOST ITEM AND IS NOT A PART OF THE GOVERNMENT'S CLAIM.' THE GOVERNMENT'S DEDUCTION WAS BASED UPON THE RELEASED VALUATION, 30 CENTS PER POUND ON THE WEIGHT OF THE DAMAGED ITEMS. THE GOVERNMENT WAS REIMBURSED BY MAJOR ROHR'S INSURER FOR THE AMOUNT IT PAID TO THE MAJOR FOR THE LOST OR MISSING ITEMS.