A-39239, NOVEMBER 14, 1931, 11 COMP. GEN. 185

A-39239: Nov 14, 1931

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS SHOWN TO HAVE BEEN INTACT WHEN PLACED ON THE SIDING AT DESTINATION. WHEREIN $71.29 WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE BECAUSE OF THE LOSS OF TOOLS AND EQUIPMENT FROM A SHIPMENT OF ROAD MACHINERY FROM MARIENVILLE. IT APPEARS THAT THE PROPERTY IN QUESTION WAS LOADED INTO A GONDOLA CAR. WHERE IT WAS INSPECTED BY A BALTIMORE AND OHIO RAILROAD LOADING INSPECTOR AND MOVED FORWARD JULY 2. IS SHOWN AS A NONAGENCY STATION ON THE PENNSYLVANIA RAILROAD IN WAYNE COUNTY. STATES THAT THE SHIPMENT WAS KNOWN TO HAVE BEEN IN GOOD ORDER WHEN LEFT AT THE SUGAR RUN SIDING. FRANK HALL LIVES AT KINZUA AND HAD BEEN PROMISED WORK BY RANGER HOWARD ON THE ROAD PROJECT FOR WHICH THE CARLOAD OF EQUIPMENT WAS SHIPPED FROM MARIENVILLE TO KINZUA.

A-39239, NOVEMBER 14, 1931, 11 COMP. GEN. 185

TRANSPORTATION - LOSS OF PROPERTY - UNIFORM BILL OF LADING WHERE A CARLOAD SHIPMENT, CONSIGNED FOR DELIVERY AT A NONAGENCY STATION, IS SHOWN TO HAVE BEEN INTACT WHEN PLACED ON THE SIDING AT DESTINATION, THE CARRIER, UNDER THE TERMS OF THE UNIFORM BILL OF LADING, CAN NOT BE HELD RESPONSIBLE FOR LOSS, RESULTING PROBABLY THROUGH THEFT, OCCURRING AFTER THE CAR HAD BEEN DETACHED FROM THE TRAIN AT DESTINATION AND BEFORE BEING UNLOADED BY THE CONSIGNEE.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 14, 1931:

THE BALTIMORE AND OHIO RAILROAD CO. HAS REQUESTED REVIEW OF SETTLEMENT T- 76382, DATED JUNE 8, 1931, OF ITS BILL 31510, WHEREIN $71.29 WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE BECAUSE OF THE LOSS OF TOOLS AND EQUIPMENT FROM A SHIPMENT OF ROAD MACHINERY FROM MARIENVILLE, PA., TO SUGAR RUN, PA., PER BILL OF LADING A-14059, JULY 1, 1930.

IT APPEARS THAT THE PROPERTY IN QUESTION WAS LOADED INTO A GONDOLA CAR, B. AND O. 251611, JULY 1, 1930, AT MARIENVILLE, PA., WHERE IT WAS INSPECTED BY A BALTIMORE AND OHIO RAILROAD LOADING INSPECTOR AND MOVED FORWARD JULY 2, 1930, ARRIVING AT SUGAR RUN, PA., ON JULY 5, 1930. SUGAR RUN, PA., IS SHOWN AS A NONAGENCY STATION ON THE PENNSYLVANIA RAILROAD IN WAYNE COUNTY, PA., THE NEAREST AGENCY STATION BEING KINZUA, PA., 2 MILES SOUTH OF SUGAR RUN. THE CONSIGNEE, M. C. HOWARD, UNITED STATES FOREST RANGER, STATES THAT THE SHIPMENT WAS KNOWN TO HAVE BEEN IN GOOD ORDER WHEN LEFT AT THE SUGAR RUN SIDING, ACCORDING TO THE STATEMENT OF ONE FRANK HALL OF KINZUA, PA., WHO EXAMINED IT ON JULY 6, 1930. ON JULY 7, 1930, HOWEVER, THE FOREMAN OF THE FOREST SERVICE DISCOVERED THE SHORTAGE AND NOTIFIED THE AGENT OF THE PENNSYLVANIA RAILROAD.

CONCERNING THE CIRCUMSTANCES UNDER WHICH MR. HALL EXAMINED THE SHIPMENT AFTER ITS ARRIVAL AT SUGAR RUN, PA., THE FOREST SUPERVISOR AT WARREN, PA., REPORTED, BY LETTER DATED NOVEMBER 2, 1931, TO THE REGIONAL FISCAL AGENT, WASHINGTON, D.C., AS FOLLOWS:

I AM ADVISED THAT MR. FRANK HALL LIVES AT KINZUA AND HAD BEEN PROMISED WORK BY RANGER HOWARD ON THE ROAD PROJECT FOR WHICH THE CARLOAD OF EQUIPMENT WAS SHIPPED FROM MARIENVILLE TO KINZUA. MR. HALL HAPPENED TO GO BY THE SIDING AT SUGAR RUN DURING THE DAY, AFTER THE CAR OF EQUIPMENT HAD BEEN RECEIVED AND PLACED. HE WAS NATURALLY INTERESTED IN WHAT KIND OF OUTFIT WAS TO BE USED ON THE JOB AND TOOK THE TIME TO CLIMB UP ON THE CAR AND LOOK THE VARIOUS ITEMS OVER. HE NOTED SPECIFICALLY THAT THE TOOL BOXES WERE LOCKED WITH FOREST SERVICE PADLOCKS. MR. HALL IS A REPUTABLE CITIZEN AND THERE IS NO QUESTION WHATSOEVER BUT THAT THE TOOL BOXES WERE INTACT AT THE TIME THE EQUIPMENT WAS RECEIVED AT SUGAR RUN AND THE CAR PLACED ON THE SIDING THERE.

IT IS PROBABLE THAT THE LOSS RESULTED FROM A THEFT WHICH OCCURRED AFTER THE CAR IN WHICH THE PROPERTY WAS SHIPPED HAD ARRIVED AT ITS DESTINATION, A NONAGENCY STATION, AND HAD BEEN PLACED ON A SIDING THERE. THE CARRIER, IN REQUESTING REVIEW OF THE SETTLEMENT, STATED, BY LETTER DATED AUGUST 24,1931, AS FOLLOWS:

THIS MATTER HAS BEEN INVESTIGATED AND WE HAVE SECURED THE PAPERS IN PENNSYLVANIA R.R. CLAIM R-544909, AND YOUR OFFICE WAS ADVISED, UNDER DATE OF NOVEMBER 3, 1930, THAT YOUR CLAIM WAS NOT ALLOWED FOR THE REASON THAT THEIR INVESTIGATION DEVELOPS THAT THIS CAR WAS ROBBED AFTER THE SAME ARRIVED AT DESTINATION--- A PREPAID NONAGENCY STATION, AND UNDER THE CONDITIONS OF THE UNIFORM B/L NO RESPONSIBILITY CAN BE ASSUMED BY THE CARRIERS FROM THE LOSS OCCURRING AFTER SHIPMENT WAS PLACED AT SUCH PREPAID STATION.

THE PROVISION OF THE UNIFORM BILL OF LADING REFERRED TO, BEING PARAGRAPH F OF SECTION 4 OF CONDITIONS, IS AS FOLLOWS:

PROPERTY DESTINED TO OR TAKEN FROM A STATION, WHARF, OR LANDING AT WHICH THERE IS NO REGULARLY APPOINTED FREIGHT AGENT SHALL BE ENTIRELY AT RISK OF OWNER AFTER UNLOADED FROM CARS OR VESSELS OR UNTIL LOADED INTO CARS OR VESSELS, AND, EXCEPT IN CASE OF CARRIER'S NEGLIGENCE, WHEN RECEIVED FROM OR DELIVERED TO SUCH STATIONS, WHARVES, OR LANDINGS SHALL BE AT OWNER'S RISK UNTIL THE CARS ARE ATTACHED TO AND AFTER THEY ARE DETACHED FROM LOCOMOTIVE OR TRAIN OR UNTIL LOADED INTO AND AFTER UNLOADED FROM VESSELS.

CONCERNING THE PURPOSE AND EFFECT OF SUCH A BILL OF LADING PROVISION, ATTENTION IS INVITED TO THE CASE OF YAZOO AND MISSISSIPPI VALLEY RAILROAD COMPANY, ET AL V. NICHOLS AND COMPANY, 256 U.S. 540, 545, WHERE THE SUPREME COURT OF THE UNITED STATES HAD OCCASION TO STATE THAT---

WHETHER GOODS DESTROYED, LOST OR DAMAGED WHILE AT A RAILROAD STATION WERE THEN IN THE POSSESSION OF THE CARRIER AS SUCH, SO AS TO SUBJECT IT TO LIABILITY IN THE ABSENCE OF NEGLIGENCE, HAD, BEFORE THE ADOPTION OF THE UNIFORM BILL OF LADING, BEEN THE SUBJECT OF MUCH LITIGATION. AT STATIONS WHERE THERE IS A REGULARLY APPOINTED AGENT THE FIELD FOR CONTROVERSY COULD BE NARROWED BY LETTING THE EXECUTION OF A BILL OF LADING OR RECEIPT EVIDENCE DELIVERY TO AND ACCEPTANCE BY THE CARRIER; AND BE LETTING DELIVERY OF GOODS TO THE CONSIGNEE BE EVIDENCED BY SURRENDER OF THE BILL OR EXECUTION OF A CONSIGNEE'S RECEIPT. BUT AT NONAGENCY STATIONS THIS COURSE IS OFTEN NOT FEASIBLE. THERE THE FIELD FOR CONTROVERSY AS TO THE FACTS WAS PARTICULARLY INVITING AND THE REASONS PERSUASIVE FOR LIMITING THE CARRIER'S LIABILITY. LOCAL FREIGHT TRAINS ARE OFTEN LATE. SHIPPERS OR CONSIGNEES CAN NOT BE EXPECTED TO ATTEND ON THEIR ARRIVAL. LESS THAN CARLOAD FREIGHT AWAITING SHIPMENT MUST ORDINARILY BE LEFT ON THE STATION PLATFORM TO BE PICKED UP BY THE PASSING TRAIN AND LOTS ARRIVING MUST BE DROPPED ON THE PLATFORM TO BE CALLED FOR BY THE CONSIGNEE. AT SUCH STATIONS THE SITUATION IN RESPECT TO CARLOAD FREIGHT IS NOT MATERIALLY DIFFERENT. AND THIS IS TRUE WHETHER THE CAR BE LOADED FOR SHIPMENT ON THE PUBLIC SIDING OR ON A NEIGHBORING PRIVATE SIDING, AND WHETHER THE ARRIVING CARLOAD, AS WELL AS LESS THAN CARLOAD, FREIGHT, WHETHER OUTGOING OR INCOMING, MUST ORDINARILY BE LEFT UNGUARDED FOR AN APPRECIABLE TIME. IS NOT UNREASONABLE THAT SHIPPERS AT SUCH STATIONS SHOULD BEAR THE RISKS NATURALLY ATTENDANT UPON THE USE. THE REASON WHY AN AGENT IS NOT APPOINTED IS THAT THE TRAFFIC TO AND FROM THE STATION WOULD NOT JUSTIFY THE EXPENSE. THE STATION IS ESTABLISHED FOR THE CONVENIENCE OF SHIPPERS CUSTOMARILY USING IT. AND THE PARAGRAPH HERE IN QUESTION WAS APPARENTLY DESIGNED TO SHIFT THE RISK FROM THE CARRIER TO SHIPPER OR CONSIGNEE OF BOTH CLASSES OF FREIGHT. IT DOES SO IN THE CASE OF LESS THAN CARLOAD FREIGHT BY HAVING THE CARRIER'S LIABILITY BEGIN WHEN THE GOODS ARE PUT ON BOARD CARS AND END WHEN THEY ARE TAKEN OFF. IT DOES SO IN THE CASE OF CARLOAD FREIGHT BY LIMITING LIABILITY TO THE TIME WHEN THE CAR IS ATTACHED TO OR DETACHED FROM THE TRAIN. * * *

SEE, ALSO, IN THIS CONNECTION THE COLLECTION OF CASES CITED IN NOTE 193 OF THE ANNOTATIONS TO PARAGRAPH 11, SECTION 20, OF THE INTERSTATE COMMERCE ACT APPEARING IN U.S.C.A. TITLE 49, SECTION 20 (11).

IN VIEW, THEREFORE, OF THE FACTS UNDER WHICH IT APPEARS THAT THE LOSS OCCURRED AND THE PROVISION OF THE BILL OF LADING APPLICABLE THERETO, THE DEDUCTION FOR THE AMOUNT OF THE LOSS MAY NOT BE SUSTAINED.

ACCORDINGLY, THE AMOUNT DEDUCTED THEREFOR, IF OTHERWISE PROPER, WILL BE CERTIFIED FOR PAYMENT.