B-147808, APR. 3, 1962

B-147808, APR. 3, 1962

TO BROWN TRANSPORT CORPORATION:

IN OUR CONSIDERATION OF THE CLAIM FOR $90,702.20 ASSERTED AGAINST YOU BY THE DEPARTMENT OF THE AIR FORCE BECAUSE OF A SHORTAGE IN A SHIPMENT OF ELECTRICAL INSTRUMENTS COVERED BY GOVERNMENT BILL OF LADING AF-028179, DATED JUNE 15, 1959, WE HAVE CONSIDERED YOUR LETTERS OF DECEMBER 15, 1961, FEBRUARY 26 AND MARCH 6, 1962, AND THE STATEMENTS MADE BY YOUR REPRESENTATIVES AT A MEETING HERE ON FEBRUARY 8, 1962, AND WE HAVE THOROUGHLY REVIEWED THE RECORD COMPILED ON THIS SHORTAGE BY THE AIR FORCE.

THE ESTABLISHED FACTS ARE THAT BILL OF LADING AF-028179 WAS ISSUED JUNE 15, 1959, TO COVER A SHIPMENT LOADED IN YOUR TRUCK NO. 3580, DESCRIBED AS "415 PCS" OF ELECTRICAL INSTRUMENTS, NOIBN, WEIGHING 13,725 POUNDS, FOR TRANSPORTATION FROM WARNER ROBINS AIR MATERIEL AREA, GEORGIA, TO HILL AIR FORCE BASE, UTAH, ROUTED VIA BROWN TRANSPORT CORPORATION, HOOVER MOTOR EXPRESS AND RINGSBY TRUCK LINES, INC. THE SHIPMENT WAS FURTHER DESCRIBED ON THE BILL OF LADING CONTINUATION SHEET AS 220 BOXES WEIGHING 4,400 POUNDS, MEASURING 440 CUBIC FEET, FROM SHIPPING TICKET OB 202991580055; 143 PIECES WEIGHING 2,411 POUNDS, MEASURING 186 CUBIC FEET, FROM SHIPPING TICKET OB 202991580026; 30 PIECES WEIGHING 1,414 POUNDS, MEASURING 96 CUBIC FEET, FROM SHIPPING TICKET OB 20299158047; AND 22 BOXES WEIGHING 5,500 POUNDS, MEASURING 264 CUBIC FEET, FROM SHIPPING TICKET OB 202991580040. THE BILL OF LADING WAS MARKED "PARTIAL NO. 1; " THE RECORD INDICATES THAT THE 22 BOXES WERE THE OVERFLOW FROM SHIPPING TICKET OB 202991580040; THE REMAINDER HAD FULLY LOADED THREE TRUCKS WHICH HAD BEEN DISPATCHED ON OTHER BILLS OF LADING PRIOR TO THE LOADING OF TRUCK NO. 3580.

THESE 22 BOXES WERE LOADED INTO TRUCK NO. 3580 ON FRIDAY, JUNE 12, 1959. BILL OF LADING AF-028179 WAS ISSUED ON MONDAY, JUNE 15, AND THE TRUCK WAS RELEASED TO YOUR COMPANY THAT DAY. YOUR AGENT, JACK JENKINS, SIGNED THE BILL OF LADING ATTESTING TO THE RECEIPT OF THE GOODS DESCRIBED THEREON "IN APPARENT GOOD ORDER AND CONDITION (CONTENTS AND VALUE UNKNOWN), TO BE FORWARDED TO DESTINATION * * * THERE TO BE DELIVERED IN LIKE GOOD ORDER AND CONDITION TO SAID CONSIGNEE.' THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING WAS ACCOMPLISHED ON JUNE 25, 1959, TO SHOW THAT ONLY 7,788 POUNDS HAD BEEN RECEIVED AND TO REFER TO THE "REPORT OF LOSS, DAMAGE, OR SHRINKAGE" ON THE REVERSE, WHICH SHOWED THAT THE SHIPMENT HAD BEEN DELIVERED SHORT 179 PIECES WEIGHING AN ESTIMATED 5,937 POUNDS. FREIGHT CHARGES OF $1,177.61, COMPUTED AT THE TOTAL BILLED WEIGHT OF 13,725 POUNDS, WERE ASSESSED BY THE DELIVERING CARRIER, RINGSBY TRUCK LINES, INC., AND WERE PAID BY DISBURSING OFFICER GEORGE M. SECKINGER ON VOUCHER 216741, DATED NOVEMBER 9, 1959.

THE SHORTAGE CONSISTED OF SIX OF THE 22 PACKAGES COVERED BY SHIPPING TICKET OB 202991580040, ALL OF THE 143 PACKAGES FROM SHIPPING TICKET OB 202991580026, AND ALL OF THE 30 PACKAGES FROM SHIPPING TICKET OB 202991580047. HOWEVER, THE PACKAGES RECEIVED DID INCLUDE 13 MORE ON SHIPPING TICKET OB 202991580055 THAN THE 220 BILLED. BECAUSE OF THIS OVERAGE, WARNER ROBINS AIR MATERIEL AREA AUTHORIZED AMENDMENT OF THE SHIPPING DOCUMENTS TO INDICATE THAT 428 PACKAGES, RATHER THAN 415, HAD BEEN SHIPPED ON BILL OF LADING AF-028179 AND THAT THE ADDITIONAL PIECES WEIGHED 20 POUNDS EACH. THIS AUTHORIZATION WAS SIGNED ALSO BY JACK JENKINS FOR BROWN TRANSPORT CORPORATION.

THE ADMINISTRATIVE OFFICE COMPILED A SUBSTANTIAL RECORD IN ITS INVESTIGATION OF THIS SHORTAGE. THE MATTER WAS HANDLED INFORMALLY WITH RINGSBY TRUCK LINES IN THE INITIAL STAGES. ON SEPTEMBER 17, 1959, A FORM ENTITLED "OVER AND/OR SHORT FREIGHT DATA," DD FORM 808, REPORTING THE SHORTAGE, WAS FURNISHED TO THE OS AND D CLERK OF THE DELIVERING CARRIER (RINGSBY TRUCK LINES) WITH A NOTATION THAT THE BILL OF LADING WOULD BE HELD FOR 30 DAYS TO ALLOW THE CARRIERS AN OPPORTUNITY TO LOCATE THE MISSING PACKAGES. WHEN IT WAS FINALLY CONCLUDED THAT THE SHORTAGE DID IN FACT EXIST, A FORMAL CLAIM, DATED DECEMBER 28, 1960, IN THE AMOUNT OF $123,985.91, WAS SUBMITTED TO RINGSBY TRUCK LINES. THE CLAIM WAS LATER PRESENTED TO YOUR COMPANY, PURSUANT TO YOUR REQUEST OF JANUARY 21, 1961, MADE BECAUSE THE SHORTAGE HAD BEEN DISCOVERED AT THE TIME OF INTERCHANGE WITH HOOVER MOTOR EXPRESS AT ATLANTA, SO THAT THE MISSING PACKAGES HAD NEVER BEEN IN THE CUSTODY OF THE CONNECTING CARRIERS. REVISED DETERMINATIONS AS TO THE CONTENTS OF THE MISSING PACKAGES AND CHANGES IN THE DEPRECIATION FACTORS BROUGHT ABOUT REDUCTIONS IN THE CLAIM TO THE PRESENT AMOUNT, $90,702.20.

THE RECORD SHOWS THAT THE MATERIEL SHIPPED ON BILL OF LADING AF 028179 CONSISTED OF USED (REPARABLE) COMPONENTS OF F-86 GUNNERY SYSTEMS. THEY HAD BEEN RECEIVED FROM AIR NATIONAL GUARD UNITS, HAVING BEEN PACKED IN SEVERAL SIZES OF AVAILABLE CONTAINERS; THEY WERE STORED AT WARNER ROBINS AND RESHIPPED, STILL IN THE ORIGINAL CONTAINERS, TO HILL AIR FORCE BASE FOR OVERHAUL AND REPAIR. SHIPPING TICKET OB 202991580055 (220 PACKAGES BILLED; 233 RECEIVED) COVERED TERMINAL BOXES; SHIPPING TICKET OB 202991580026 (143 PIECES, ALL MISSING) COVERED BLOWERS; SHIPPING TICKET OB 202991580047 (30 PIECES, ALL MISSING) COVERED POWER SUPPLIES; AND SHIPPING TICKET OB 202991580040 (22 BOXES, SIX MISSING) COVERED RECEIVERS. BECAUSE THE COMPONENTS HAD BEEN USED, BECAUSE THEY HAD BEEN PACKED BY AIR NATIONAL GUARD UNITS IN ANY AVAILABLE CONTAINERS, AND BECAUSE THEY HAD BEEN STORED AT WARNER ROBINS AND RESHIPPED WITHOUT UNPACKING OR INSPECTION, THE AIR FORCE MET CONSIDERABLE DIFFICULTY IN ASCERTAINING HOW MANY ITEMS WERE IN EACH PACKAGE AND IN DETERMINING THE FAIR VALUE OF THE MISSING ITEMS. WAS FINALLY CONCLUDED BY THE AIR FORCE THAT THE SHORTAGE CONSISTED OF (1) 206 BLOWERS HAVING A SERVICEABLE COST OF $173 EACH, OF WHICH 33 PERCENT WOULD HAVE BEEN CONDEMNED AS UNSERVICEABLE AND ON WHICH A DEPRECIATION ALLOWANCE OF $36.03 EACH SHOULD BE MADE; (2) 92 POWER SUPPLIES AT A SERVICEABLE COST OF $521 EACH AND A DEPRECIATION ALLOWANCE OF $157 EACH; AND (3) SIX RECEIVERS AT A SERVICEABLE COST OF $7,214 EACH AND A DEPRECIATION ALLOWANCE OF $828.61 EACH. ON THE BASIS OF THESE FIGURES, THE AMOUNT OF $90,702.20 WAS REACHED.

THE AIR FORCE MAINTAINS THAT THE 22 BOXES OF RECEIVERS WERE LOADED ON TRUCK NO. 3580 ON FRIDAY, JUNE 12, 1959; IT IS NOT CLEAR WHEN THE BALANCE OF THE SHIPMENT WAS LOADED. THE LOADING WAS PERFORMED BY WARNER ROBINS AIR MATERIEL AREA PERSONNEL, APPARENTLY IN THE PRESENCE OF CARRIER PERSONNEL. THE PRACTICE THEN PREVALENT WAS TO USE THE SHIPPING TICKETS AS LOADING TALLIES, TRANSCRIBE THE INFORMATION THEREFROM TO THE PACKER'S WORKSHEETS, AND GIVE TO THE CARRIER REPRESENTATIVE A COPY OF THE SHIPPING TICKET WHICH HE SIGNED AND RETAINED UNTIL ISSUANCE OF THE BILL OF LADING. MUCH HAS BEEN MADE OF THE ABSENCE OF THE CARRIER REPRESENTATIVE'S SIGNATURE FROM THE PACKER'S WORKSHEETS, WHICH WERE SIGNED ONLY BY THE GOVERNMENT CHECKER. WE WOULD UNDERSTAND THAT IT WAS NOT CUSTOMARY FOR THE CARRIER'S REPRESENTATIVE TO SIGN THE PACKER'S WORKSHEETS; EVEN IF IT HAD BEEN, THE ABSENCE OF THIS SIGNATURE WOULD HAVE BEEN IMMATERIAL SINCE YOUR REPRESENTATIVE SIGNED THE GOVERNMENT BILL OF LADING, WHICH REFLECTS THE FACTS AND TERMS OF THE TRANSPORTATION CONTRACT.

TRUCK NO. 3580 REMAINED AT THE WAREHOUSE LOCATION ON THE BASE UNTIL MONDAY, JUNE 15, 1959, WHEN THE BILL OF LADING WAS ISSUED AND SIGNED FOR BROWN TRANSPORT CORPORATION BY ITS COMMISSION AGENT, JACK JENKINS, AND THE TRUCK WAS RELEASED TO THE CARRIER. ACCORDING TO YOUR RECORDS, IT WAS THEN DRIVEN TO YOUR TERMINAL AT MACON, WHERE SEALS WERE APPLIED WHICH WERE NOT BROKEN UNTIL THE NEXT MORNING AT THE HOOVER MOTOR EXPRESS TERMINAL IN ATLANTA, WHERE THE LADING WAS TO BE TRANSFERRED TO THAT CONNECTING CARRIER. AT THIS POINT, A PHYSICAL COUNT WAS MADE AND THE SHORTAGE OF 179 PIECES FROM THE BILLED NUMBER OF 415 WAS DISCOVERED. THERE IS NO EVIDENCE IN THE RECORD THAT YOUR COMPANY, THEN OR LATER, REPORTED TO THE SHIPPER, THE TRANSPORTATION OFFICER AT WARNER ROBINS, THE DISCREPANCY BETWEEN THE NUMBER OF PACKAGES SHOWN ON THE SHIPPING DOCUMENTS AND THE NUMBER WHICH WERE ACTUALLY OFF-LOADED AND TRANSFERRED FROM TRUCK NO. 3580.

APPARENTLY IT IS YOUR POSITION THAT LIABILITY SHOULD NOT BE IMPOSED UPON YOUR COMPANY BECAUSE YOU DO NOT THINK THERE WAS IN FACTA SHORTAGE AND IF THERE WAS, YOU BELIEVE THE GOVERNMENT'S EVIDENCE OF THE CONTENTS OF THE MISSING PACKAGES IS INADEQUATE. YOU DOUBT THAT THESE PACKAGES WERE IN TRUCK NO. 3580 WHEN YOUR DRIVER ASSUMED CONTROL OF IT BECAUSE OF THE TIME INTERVAL BETWEEN THE COMMENCEMENT OF LOADING ON JUNE 12 AND THE RELEASE TO YOUR CUSTODY ON JUNE 15, AND BECAUSE YOUR PERSONNEL FAILED TO SIGN THE LOADING SLIPS RETAINED BY THE GOVERNMENT. IF THE PACKAGES WERE IN FACT IN THE TRUCK WHEN YOU RECEIVED IT, YOU DO NOT THINK THEY CONTAINED THE NUMBER OF THE VARIOUS UNITS THAT THE GOVERNMENT RECORDS SHOW. BASED UPON THE FINDINGS OF DOCTOR DONNELL DUTTON, CHAIRMAN, SCHOOL OF AERONAUTICS, GEORGIA INSTITUTE OF TECHNOLOGY, WHOM YOU EMPLOYED TO EXAMINE SIMILAR ARTICLES AT THE WARNER ROBINS AIR MATERIEL AREA, YOU CONTEND THAT THE 143 MISSING PACKAGES OF BLOWERS COULD NOT HAVE CONTAINED 381 UNITS AND THAT THE 30 MISSING PACKAGES OF POWER SUPPLIES COULD NOT HAVE CONTAINED 92 UNITS; IN FACT, YOU DOUBT THAT THEY CONTAINED BLOWERS AND POWER SUPPLIES AT ALL. AS TO THE SIX MISSING RECEIVERS, EIGHT SIMILAR WERE FOUND IN STOCK AT WARNER ROBINS DURING AN INVENTORY IN SEPTEMBER 1959 IN EXCESS OF THE NUMBER CARRIED ON THE INVENTORY RECORDS AND YOU BELIEVE THAT THIS SURPLUS INCLUDED THE MISSING SIX.

THE ABSENCE OF THE SIGNATURES OF YOUR PERSONNEL ON THE PACKER'S WORKSHEETS RETAINED BY THE GOVERNMENT HAS NO EVIDENTIARY VALUE IN VIEW OF THE ADMITTED LOADING PRACTICE. THE CONTROLLING DOCUMENT, THE BILL OF LADING, WHICH NOT ONLY REPRESENTS THE CONTRACT OF CARRIAGE BUT ALSO SERVES AS A RECEIPT FOR THE GOODS, WAS SIGNED WITHOUT EXCEPTION BY YOUR REPRESENTATIVE, JACK JENKINS, ACKNOWLEDGING RECEIPT BY THE CARRIER OF THE GOODS DESCRIBED THEREON. THIS CREATES A PRESUMPTION OF CARRIER LIABILITY TO WHICH YOU HAVE OFFERED IN REBUTTAL ONLY YOUR OPINION THAT THE MISSING PACKAGES WERE NOT LOADED AT ALL, OR THAT THEY WERE ERRONEOUSLY UNLOADED BY GOVERNMENT PERSONNEL DURING THE TIME BETWEEN THE BEGINNING OF LOADING AND THE RELEASE OF THE TRUCK, OR THAT THEY WERE PILFERED PRIOR TO DELIVERY OF THE TRUCK INTO THE CARRIER'S CUSTODY. THESE UNSUPPORTED SUPPOSITIONS ARE INSUFFICIENT TO COUNTERVAIL THE BILL OF LADING EVIDENCE. FURTHER, ACCORDING TO YOUR STATEMENTS IT WAS YOUR COMPANY WHICH HAD FIRST KNOWLEDGE OF THE SHORTAGE DURING THE TRANSFER TO HOOVER MOTOR EXPRESS AND FIRST OPPORTUNITY TO INVESTIGATE THE MATTER. YET THE RECORD DOES NOT SHOW THAT YOU REPORTED THE DISCREPANCY TO THE SHIPPER OR MADE ANY EFFORT TO ACCOUNT FOR IT UNTIL THE AIR FORCE DETERMINED TO HOLD THE CARRIERS LIABLE. SINCE YOU NOTICED THE SHORTAGE THE DAY AFTER YOU RECEIVED THE SHIPMENT FROM WARNER ROBINS, IT IS POSSIBLE THAT PROMPT ACTION ON YOUR PART WOULD HAVE AVOIDED THE COMPLICATIONS THAT NOW EXIST.

YOUR LETTER OF MARCH 8, 1962, SUMMARIZES YOUR POSITION, BASED UPON DOCTOR DUTTON'S FINDINGS, CONCERNING THE NUMBER OF BLOWERS AND POWER SUPPLIES IN THE MISSING PACKAGES. AS TO THE BLOWERS, THE SHIPPING DOCUMENTS INDICATED THAT TWO OF THE 143 PACKAGES MEASURED 16 CUBIC FEET EACH AND CONTAINED 116 AND 107 UNITS; BASED UPON THE WEIGHTS AND DIMENSIONS OF SIMILAR UNITS VIEWED BY DOCTOR DUTTON, YOU CONTEND THESE TWO PACKAGES COULD NOT POSSIBLY HAVE HELD 116 AND 107 UNITS. THE GOVERNMENT'S CLAIM HAS ALREADY BEEN REVISED CONSISTENT WITH YOUR VIEW; THE AIR FORCE REDUCED THE NUMBER OF BLOWERS IN THE MISSING PACKAGES FROM 381 TO 206, CONCLUDING THAT THESE TWO PACKAGES HELD 24 EACH. YOU WERE NOTIFIED OF THIS REDUCTION IN A LETTER DATED MAY 23, 1961, FROM THE AIR FORCE FINANCE AND ACCOUNTING CENTER. TO THE POWER SUPPLIES, YOU BELIEVE THAT 24 UNITS AND 40 UNITS COULD NOT HAVE BEEN PACKED IN TWO 16 CUBIC FOOT BOXES; BASED UPON DOCTOR DUTTON'S OBSERVATIONS SUCH BOXES WOULD HOLD AN AVERAGE OF 12 UNITS EACH, PROPERLY PACKED.

IN THE CIRCUMSTANCES OF THIS CASE, WE DO NOT THINK THAT YOU HAVE ADDUCED PROBATIVE EVIDENCE IN REBUTTAL OF THE PRIMA FACIE CASE MADE OUT BY THE BILL OF LADING SUFFICIENT TO WARRANT RELIEF FROM LIABILITY FOR THE SHORTAGE. THE ADMINISTRATIVE OFFICE HAS ALREADY REDUCED THE NUMBER OF BLOWERS MISSING FROM 381 TO 206, IN ACCORDANCE WITH YOUR CONTENTIONS.

WHILE WE ARE IMPRESSED BY DR. DUTTON'S ANALYSIS AND CONCLUSIONS AS TO THE NUMBER OF POWER SUPPLY UNITS CAPABLE OF BEING PROPERLY PACKED IN A 16 CUBIC FOOT BOX--- HE CONCLUDES THAT ONLY 12 COULD HAVE BEEN PACKED IN EACH OF THE TWO BOXES INVOLVED--- WE NOTE THAT THE AIR FORCE HAS ALSO GIVEN CONSIDERABLE ATTENTION TO THIS PARTICULAR ASPECT OF THE PROBLEM AND THAT THEY ADHERE TO THE CONCLUSION THAT 40 POWER SUPPLY UNITS COULD HAVE BEEN PACKED IN SUCH A BOX. EVEN IF DOCTOR DUTTON'S FINDINGS IN THIS RESPECT WERE GIVEN EFFECT AND APPLIED IN REDUCTION OF THE GOVERNMENT'S TOTAL CLAIM, THE CARRIER'S MONETARY LIABILITY WOULD STILL BE SUBSTANTIAL. THE AIR FORCE CONTINUES TO MAINTAIN THAT THE CLAIM FOR $90,702.20 IS "FAIR AND REASONABLE" AND SINCE IN OUR EXAMINATION OF THE RECORD WE ARE UNABLE TO FIND SUPPORT, AS A LEGAL MATTER, FOR EXEMPTING THE CARRIER FROM LIABILITY FOR ANY PORTION OF THE REPORTED LOSS, WE ARE OBLIGED TO CONCUR WITH THE AIR FORCE IN ITS DETERMINATION OF CARRIER LIABILITY IN THE NAMED AMOUNT. IT WILL THEREFORE BE NECESSARY FOR YOUR COMPANY TO ARRANGE FOR LIQUIDATION OF THE GOVERNMENT'S CLAIM. OF COURSE, IN THE ABSENCE OF A VOLUNTARY REMITTANCE THE GOVERNMENT WILL HAVE RECOURSE TO SETOFF PROCEDURES. VIEW OF THE AMOUNT INVOLVED AND OF SUGGESTIONS OF POSSIBLE FINANCIAL EMBARRASSMENT, WE WOULD NOT BE ADVERSE TO DISCUSSING PROPOSALS FOR THE SETTLEMENT OF THE CLAIM WITHIN A REASONABLE TIME, AND WE WILL POSTPONE COLLECTION EFFORTS FOR SIXTY DAYS FROM THE DATE OF THIS LETTER TO AFFORD YOUR COMPANY OPPORTUNITY TO ARRANGE FOR A SATISFACTORY SETTLEMENT.