A-88604, SEPTEMBER 29, 1937, 17 COMP. GEN. 267

A-88604: Sep 29, 1937

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- THAT THE DAMAGES OCCURRED IN TRANSIT AND WHILE THE GOODS WERE IN THE CARE AND CUSTODY OF THE CARRIERS WHICH HAD RECEIPTED FOR SAME WITHOUT EXCEPTION. THE GENERAL ACCOUNTING OFFICE WILL NOT TAKE ACTION TOWARD THE COLLECTION OF DAMAGES FOR THE BENEFIT OF THE OWNER. 1937: THERE IS FOR CONSIDERATION THE MATTER OF THE CLAIM OF COL. FOR THE STATED REASON THAT "ALL BREAKAGES OCCURRED WERE OBVIOUSLY THE FAULT OF CARELESS PACKING.'. ARE REPORTED TO BE AS FOLLOWS: THE BOARD MET PURSUANT TO THE PRECEDING ORDER AT 1:30 P.M. ALLEGED TO HAVE BEEN DAMAGED DURING CHANGE OF STATION. WERE DAMAGED WHILE IN TRANSIT BETWEEN MOBILE. THAT NONE OF THE CRATES OR BARRELS IN WHICH THE DAMAGED ARTICLES WERE SHIPPED SHOWED ANY SIGNS OF EXTERIOR DAMAGE.

A-88604, SEPTEMBER 29, 1937, 17 COMP. GEN. 267

DAMAGES TO ARMY OFFICER'S HOUSEHOLD EFFECTS INCIDENT TO CHANGE OF STATION - GOVERNMENT LEGAL ACTION - INCONCLUSIVE EVIDENCE OF PRIVATE CONTRACTOR'S LIABILITY WHERE A FACT FINDING BOARD OF OFFICERS, APPOINTED TO INVESTIGATE DAMAGES TO AN ARMY OFFICER'S HOUSEHOLD EFFECTS INCIDENT TO CHANGE OF STATION, CONCLUDED--- WITHOUT REPORTING THE FACTS DISCLOSED BY ITS INVESTIGATION--- THAT THE DAMAGES OCCURRED IN TRANSIT AND WHILE THE GOODS WERE IN THE CARE AND CUSTODY OF THE CARRIERS WHICH HAD RECEIPTED FOR SAME WITHOUT EXCEPTION, THE GENERAL ACCOUNTING OFFICE WILL NOT TAKE ACTION TOWARD THE COLLECTION OF DAMAGES FOR THE BENEFIT OF THE OWNER, FROM THE COMPANY WHICH PACKED THE GOODS, IN THE ABSENCE OF PROOF BASED ON EVIDENCE ADMISSIBLE IN COURT OF THE PACKING COMPANY'S RESPONSIBILITY FOR THE DAMAGES, THE PACKER NOT HAVING BEEN AN INSURER OF THE EFFECTS UNDER THE TERMS OF ITS CONTRACT.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, SEPTEMBER 29, 1937:

THERE IS FOR CONSIDERATION THE MATTER OF THE CLAIM OF COL. ROBERT S. THOMAS, CORPS OF ENGINEERS, UNITED STATES ARMY, AGAINST ABB'S TRANSFER AND SERVICE CO., MOBILE, ALA., IN THE AMOUNT OF $117.55, AS DAMAGES FOUND BY A BOARD OF OFFICERS CONVENED MAY 28, 1936, AT SCHOFIELD BARRACKS, T.H., TO HIS HOUSEHOLD GOODS WHILE IN TRANSIT BETWEEN MOBILE, ALA., AND SCHOFIELD BARRACKS ON CHANGE OF STATION, AND RECOMMENDED FOR COLLECTION FROM THE COMPANY RENDERING THE SERVICE OF PACKING AND CRATING, FOR THE STATED REASON THAT "ALL BREAKAGES OCCURRED WERE OBVIOUSLY THE FAULT OF CARELESS PACKING.'

THE PROCEEDINGS OF THE BOARD OF OFFICERS, CONVENED MAY 28, 1936, BY SPECIAL ORDERS NO. 52, HEADQUARTERS, THIRD ENGINEERS, SCHOFIELD BARRACKS, DATED MAY 28, 1936, ARE REPORTED TO BE AS FOLLOWS:

THE BOARD MET PURSUANT TO THE PRECEDING ORDER AT 1:30 P.M., THIS DATE TO INVESTIGATE DAMAGE TO THE PROPERTY OF COLONEL ROBERT S. THOMAS, 3RD ENGINEERS, SUSTAINED DURING HIS CHANGE OF STATION FROM MOBILE, ALABAMA, TO SCHOFIELD BARRACKS, T.H.

THE BOARD THEN PROCEEDED TO THE QUARTERS OF COLONEL ROBERT S. THOMAS, 3RD ENGINEERS, AND CAREFULLY INSPECTED THE ARTICLES LISTED BELOW, ALLEGED TO HAVE BEEN DAMAGED DURING CHANGE OF STATION, AND FOUND AS FOLLOWS:

CHART

DAMAGED ARTICLES: EXTENT OF DAMAGE

NEST OF TABLES ------------------------------------- $2.50

CHEST OF DRAWERS ----------------------------------- 20.00

BUREAU --------------------------------------------- 2.00

SEWING MACHINE ------------------------------------- 7.50

FILING CABINET ------------------------------------- (1)

CHAISE LOUNGE -------------------------------------- 1.50

THREE (3) MIRRORS ---------------------------------- 2.50

ARM CHAIR AND MATERIAL ----------------------------- 5.00

SHERATON CHAIR ------------------------------------- 10.50

SHERATON CHAIR ------------------------------------- 5.50

HEPPLEWHITE CHAIR ---------------------------------- 7.50

VICTORIAN CHAIR ------------------------------------ 1.00

1 MINTON CHINA CUP --------------------------------- 5.00

2 CUPS AND SAUCERS, RICE CHINA --------------------- 2.50

4 PLATES, RICE CHINA ------------------------------- 3.90

1 FIGURINE ----------------------------------------- 2.50

2 GLASS AND SILVER SHERBET CUPS -------------------- 4.00

2 BLUE GLASS PLATES -------------------------------- 2.00

1 BONE CHINA CUP AND SAUCER ------------------------ 5.00

2 GREEN CHINA PLATES ------------------------------- 2.00

3 GREEN CHINA DISHES ------------------------------- 1.50

3 CRYSTAL GOBLETS ---------------------------------- 3.75

1 CHINA VASE --------------------------------------- 5.00

2 CHINA DISHES -------------------------------------1.50

3 BLUE CHINA DISHES -------------------------------- 1.40

1 GLASS BOMBOLA ------------------------------------ 3.00

1 GLASS LINING FOR SILVER DISH --------------------- 1.50

2 STOPPERS FOR DECANTERS --------------------------- (

1 SILVER COFFEE URN -------------------------------- (

1 CANDLESTICK -------------------------------------- (

3 SILVER CANDLESTICKS ------------------------------ ( 7.50

1 SILVER BASKET ------------------------------------ (

1 TEA CADDY ---------------------------------------- (

1 MAYONNAISE BOWL ---------------------------------- (

TOOL CHEST ----------------------------------------- (1)

DESK ----------------------------------------------- (1)

DESK ----------------------------------------------- (1)

TOTAL EXTENT OF DAMAGES ------------------------ 117.55

1 REPAIRED BY Q.M.C.

FINDINGS

AFTER A CAREFUL CONSIDERATION OF THE EVIDENCE PRESENTED, THE BOARD FINDS THAT THE ABOVE LISTED ARTICLES OF FURNITURE AND CHINAWARE, PERSONAL PROPERTY OF COLONEL ROBERT S. THOMAS, 3RD ENGINEERS, WERE DAMAGED WHILE IN TRANSIT BETWEEN MOBILE, ALABAMA, AND SCHOFIELD BARRACKS, T.H., BEING INCIDENTAL TO A CHANGE OF STATION OF THE OWNER AND THROUGH NO FAULT OF THE OWNER.

THAT ALL BREAKAGES WHICH COULD BE REPAIRED BY THE QUARTERMASTER HAD BEEN REPAIRED.

THAT NONE OF THE CRATES OR BARRELS IN WHICH THE DAMAGED ARTICLES WERE SHIPPED SHOWED ANY SIGNS OF EXTERIOR DAMAGE.

THAT THE ESTIMATES GIVEN ON PAGE TWO (2) OF THIS REPORT WERE MADE BY A RESPONSIBLE DEALER FAMILIAR WITH SUCH OBJECTS AND THE REPAIR OF SAME.

THAT POOR JUDGMENT HAD BEEN SHOWN BY THE PACKERS IN PACKING HEAVY OBJECTS IN THE SAME CONTAINERS WITH FRAGILE OBJECTS.

RECOMMENDATIONS

IN VIEW OF THE FOREGOING FINDINGS, THE BOARD, THEREFORE, RECOMMENDS THAT THE DAMAGED ARTICLES BE NOT REPLACED IN KIND, BUT THAT THE CLAIMANT BE REIMBURSED TO THE AMOUNT OF $117.55, AND THAT THE COMPANY WHICH PACKED THE FURNITURE BE HELD STRICTLY RESPONSIBLE FOR THE DAMAGES, SINCE ALL BREAKAGES OCCURRED WERE OBVIOUSLY THE FAULT OF CARELESS PACKING.

IT APPEARS THE CLAIM WAS INSTIGATED BY A LETTER DATED JUNE 11, 1936, FROM THE DISTRICT ENGINEER, MOBILE, ALA., TO ABB'S TRANSFER AND SERVICE CO., AS FOLLOWS:

REFERENCE IS MADE TO CONTRACT NO. TPS-7644 AND TO YOUR PACKING AND CRATING OF HOUSEHOLD FURNITURE OF COLONEL R. S. THOMAS TO APPLY THEREON.

YOU ARE ADVISED THAT SOME OF THE HOUSEHOLD EFFECTS OF THE ABOVE NAMED OFFICER WERE RECEIVED IN DAMAGED CONDITION, AND, IN ACCORDANCE WITH ARMY REGULATIONS, A BOARD OF OFFICERS WAS APPOINTED TO INVESTIGATE THE DAMAGE. A COPY OF THE PROCEEDINGS OF THE BOARD OF OFFICERS, INCLUDING THEIR FINDINGS AND RECOMMENDATIONS, IS INCLOSED.

INASMUCH AS THIS BOARD RECOMMENDED THAT THE CLAIMANT BE REIMBURSED TO THE AMOUNT OF $117.55, AND THAT THE PACKERS BE HELD STRICTLY RESPONSIBLE, IT WILL BE NECESSARY THAT YOU FORWARD TO THIS OFFICE WITHOUT DELAY CERTIFIED CHECK IN THE ABOVE AMOUNT, PAYABLE TO COLONEL R. S. THOMAS, AND SAME WILL BE TRANSMITTED TO HIM.

THE COMPANY REPLIED BY LETTER OF JUNE 13, 1936, IN PART AS FOLLOWS:

WE HAVE YOUR LETTER OF THE 11TH IN REGARD TO DAMAGES TO COL. R. S. THOMAS' HOUSEHOLD GOODS AND PERSONAL EFFECTS. WE FEEL THAT THIS MATTER SHOULD BE TAKEN UP WITH THE LAST CARRIER OF THE GOODS, AS THE GOODS WERE RECEIVED IN GOOD CONDITION AT THE PAN ATLANTIC SS. CO., IN MOBILE, ALA. THE GOODS WERE CRATED AND PACKED EXACTLY AS PER GOVERNMENT REGULATIONS AND SPECIFICATIONS OF MRS. R. S. THOMAS, WRAPPED IN PAPER, PADDED WITH EXCELSIOR PADS, BURLAPPED, AND PLACED IN SUBSTANTIAL CRATES AND BOXES WITH EXTRA BRACES AS SPECIFIED. ENDS OF CRATES WERE BRACED SUBSTANTIALLY, BARRELS WERE PACKED WITH THE BEST OF CARE, JUST A FEW PIECES TO THE BARREL, EACH PIECE WRAPPED IN SEPARATE PADS, ALL JUST AS SPECIFIED. * *

IT FURTHER APPEARS THE SHIPMENT IN QUESTION, CONSISTING OF 91 PACKAGES, WAS DELIVERED NOVEMBER 27, 1935, BY THE PACKING AND DRAYAGE CONTRACTOR TO THE PAN-ATLANTIC STEAMSHIP CORPORATION, WITHOUT EXCEPTION, AND MOVED VIA THE "S.S. PAN ROYAL V. 22 NB-MOB/HOB B/L 19," AND FURTHER THAT NO EXCEPTIONS WERE TAKEN TO THE CONDITIONS OF THE SHIPMENT AT TIME OF DELIVERY TO PIER NO. 4, HOBOKEN, TO THE UNITED STATES ARMY TUG MAJOR NORMOYLE ON DECEMBER 12, 1935. OF SUCH SHIPMENT 79 PACKAGES MARKED FOR COL. ROBERT S. THOMAS WENT FORWARD TO HONOLULU ON THE UNITED STATES ARMY TRANSPORT REPUBLIC FROM NEW YORK, DECEMBER 28, 1935, AND THE OTHER 12 PACKAGES WERE FORWARDED DECEMBER 13, 1935, TO NEW CUMBERLAND, PA.

THE CLAIM IS ASSERTED UNDER THE CONTRACT NO. TPS-7644, DATED SEPTEMBER 30, 1935, BY AND BETWEEN THE PROCUREMENT DIVISION, BRANCH OF SUPPLY, TREASURY DEPARTMENT, AND ABB'S TRANSFER AND SERVICE ., BY WHICH THE COMPANY AGREED TO PACK AND CRATE THE HOUSEHOLD GOODS AND PROFESSIONAL BOOKS IN MOBILE, ALA., AS REQUIRED BY THE SEVERAL DEPARTMENTS OF THE UNITED STATES GOVERNMENT THERE, FOR $2 PER HUNDRED POUNDS, AND SPECIFICALLY UNDER THE CONDITION PROVIDING IN PERTINENT PART THAT---

THE SUCCESSFUL BIDDER WILL BE HELD STRICTLY RESPONSIBLE FOR ALL LOSS, INJURY, OR DAMAGE TO FREIGHT, WHETHER BY THEFT, ACCIDENT, HOLD UP, OR OTHERWISE, WHILE SAID FREIGHT IS UNDER HIS CARE AND CUSTODY. * * *

THE BOARD APPOINTED TO INVESTIGATE AND REPORT UPON THE BREAKAGE OF THE FURNITURE BELONGING TO COLONEL THOMAS WAS A FACT-FINDING BODY. THE BOARD HAS NOT REPORTED THE FACTS DEVELOPED BY THEIR INVESTIGATION OF THIS CASE BUT HAS REACHED A CONCLUSION, STATED TO BE BASED ON A CONSIDERATION OF THE EVIDENCE PRESENTED, THAT THIS OFFICER'S PROPERTY WAS "DAMAGED WHILE IN TRANSIT BETWEEN MOBILE, ALA., AND SCHOFIELD BARRACKS, TERRITORY OF HAWAII.' THE CONCLUSION OR OPINION OF SUCH BOARD IS ADVISORY ONLY. LEGAL ACTION LOOKING TO COLLECTION FROM THE PACKER MAY NOT PROPERLY BE TAKEN EXCEPT UPON PROOF BASED ON EVIDENCE ADMISSIBLE IN COURT OF THE COMPANY'S RESPONSIBILITY FOR THE DAMAGES. THE PACKER, UNDER ITS CONTRACT, HAS ACCEPTED FULL RESPONSIBILITY AND HAS EXECUTED A PERFORMANCE BOND COVERING DAMAGES TO FREIGHT WHILE UNDER ITS CARE AND CUSTODY. THE BOARD HAS NOT FOUND THAT THIS SHIPMENT WAS DAMAGED WHILE UNDER THE CARE AND CUSTODY OF THE PACKER BUT THAT THE DAMAGES OCCURRED WHILE IN TRANSIT BETWEEN MOBILE AND SCHOFIELD BARRACKS. DURING SUCH PERIOD THE EFFECTS WERE IN THE CARE AND CUSTODY OF THE CARRIERS, WHO HAD RECEIPTED FOR THE FREIGHT WITHOUT EXCEPTION. TO HOLD THE PACKER, IN THE ABSENCE OF PROOF OF NEGLIGENT OR IMPROPER PACKING, WOULD CONSTITUTE THE PACKER AN INSURER OF THE EFFECTS WHILE IN TRANSIT. THE PACKER HAS ACCEPTED NO SUCH RESPONSIBILITY UNDER ITS CONTRACT.

UPON REVIEW SETTLEMENT US-4408-W RAISING A CHARGE IN THE SUM OF $117.55 AGAINST ABB'S TRANSFER AND SERVICE CO. IS CANCELED. NO FURTHER ACTION TO COLLECT FROM THE CONTRACTOR FOR THE CLAIMED DAMAGES FOR THE BENEFIT OF THE OWNER OF THE GOODS WILL BE TAKEN BY THIS OFFICE IN THE ABSENCE OF CONCLUSIVE PROOF NOT NOW IN THE RECORD SHOWING THE CONTRACTOR TO BE RESPONSIBLE FOR THE DAMAGES.