B-113266, AUG. 16, 1956

B-113266: Aug 16, 1956

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GOVERNMENT BILL OF LADING WAS-331889. THERE IS NO QUESTION AS TO THE LOSS OF ONE OF THE EIGHT BOXES OF BEARINGS COMPRISING THE SHIPMENT UNDER THE ABOVE BILL OF LADING AND YOUR COMPANY HAS NOT DENIED LIABILITY FOR THE SHORTAGE. WAS AN AUTHORIZED SALES AGENT FOR THE WAR ASSETS ADMINISTRATION. THE AGENT WOULD HAVE BEEN ENTITLED TO CERTAIN COMMISSIONS HAD THIS BOX OF BEARINGS BEEN RECEIVED AT DESTINATION AND SOLD IN THE USUAL COURSE OF BUSINESS. YOU HAVE SUGGESTED THAT THE MEASURE OF THE DAMAGES SUFFERED BY THE UNITED STATES SHOULD BE THE NET AMOUNT WHICH THE UNITED STATES WOULD HAVE REALIZED FROM THE DISPOSAL OF THESE BEARINGS HAD NO LOSS OCCURRED. IS LIABLE FOR THE "FULL ACTUAL LOSS. THIS IS IN CONFORMITY TO THE BASIC PRINCIPLE THAT THE REMEDY PROVIDED IN A GIVEN CASE SHALL AFFORD COMPENSATION FOR WHATEVER INJURY IS ACTUALLY SUSTAINED.

B-113266, AUG. 16, 1956

TO THE TEXAS AND PACIFIC RAILWAY COMPANY:

THE GENERAL SERVICES ADMINISTRATION HAS REPORTED TO US FOR COLLECTION A CLAIM AGAINST YOUR COMPANY IN THE AMOUNT OF $3,074.85, WHICH REPRESENTS THE FULL MARKET VALUE OF ONE BOX OF 6,833 BALL TYPE K312 BEARINGS, WEIGHT 115, SHIPPED FROM THE WAR ASSETS ADMINISTRATION DISPOSAL CENTER, TOLEDO, OHIO, TO AIR ACCESSORIES, INC., GRAND PRAIRIE, TEXAS, COVERED BY U.S. GOVERNMENT BILL OF LADING WAS-331889, DATED MAY 14, 1947. SEE YOUR FILE CLAIM 61165-5.

APPARENTLY, THERE IS NO QUESTION AS TO THE LOSS OF ONE OF THE EIGHT BOXES OF BEARINGS COMPRISING THE SHIPMENT UNDER THE ABOVE BILL OF LADING AND YOUR COMPANY HAS NOT DENIED LIABILITY FOR THE SHORTAGE, BUT HAS RAISED A QUESTION AS TO THE MEASURE OF THE DAMAGES, DUE TO THE FACT THAT THE CONSIGNEE, AIR ACCESSORIES, INC., WAS AN AUTHORIZED SALES AGENT FOR THE WAR ASSETS ADMINISTRATION. UNDER ITS SALES CONTRACT WITH THAT ADMINISTRATION, THE AGENT WOULD HAVE BEEN ENTITLED TO CERTAIN COMMISSIONS HAD THIS BOX OF BEARINGS BEEN RECEIVED AT DESTINATION AND SOLD IN THE USUAL COURSE OF BUSINESS. ACCORDINGLY, YOU HAVE SUGGESTED THAT THE MEASURE OF THE DAMAGES SUFFERED BY THE UNITED STATES SHOULD BE THE NET AMOUNT WHICH THE UNITED STATES WOULD HAVE REALIZED FROM THE DISPOSAL OF THESE BEARINGS HAD NO LOSS OCCURRED.

UNDER SECTION 20 (11) OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 20 (11), YOUR LINE, AS THE DELIVERING CARRIER, IS LIABLE FOR THE "FULL ACTUAL LOSS, DAMAGE, OR INJURY" TO THE PROPERTY SHIPPED. IN 1920, THE UNITED STATES SUPREME COURT, IN CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY V. MCCAULL-DINSMORE COMPANY, 253 U.S. 97, INDICATED THAT THE PHRASE,"FULL ACTUAL LOSS, DAMAGE, OR INJURY" AS USED IN THE STATUTE, SHOULD BE CONSTRUED TO MEAN THE COMMON LAW MEASURE OF DAMAGES. THIS IS IN CONFORMITY TO THE BASIC PRINCIPLE THAT THE REMEDY PROVIDED IN A GIVEN CASE SHALL AFFORD COMPENSATION FOR WHATEVER INJURY IS ACTUALLY SUSTAINED. AM.JUR., CARRIERS, SECTION 781. GENERALLY, THE COMMON LAW MEASURE OF DAMAGES FOR THE LOSS OF PROPERTY WHILE IN THE CUSTODY OF A COMMON CARRIER FOR TRANSPORTATION IS THE MARKET VALUE OF THE PROPERTY AT THE TIME AND PLACE WHERE IT SHOULD HAVE BEEN DELIVERED, IN GOOD ORDER OR CONDITION, PLUS INTEREST FROM THE TIME WHEN, IN THE USUAL COURSE OF BUSINESS, THE GOODS SHOULD HAVE BEEN DELIVERED. MOBILE AND MONTGOMERY R. CO. V. JUREY, 111 U.S. 584; WOONSOCKET MACHINE AND PRESS CO. V. NEW YORK, N.H. AND H.R.R. CO., 131 N.E. 461; KYLE V. LAURENS R.R. CO., 70 AM.DEC. 231. MORE SPECIFICALLY, SEE THOMPSON V. H. ROUW CO., 237 S.W.2D 662, 666, TO THE EFFECT THAT NO ALLOWANCE WOULD BE MADE TO THE CARRIER FOR A COMMISSION THAT WOULD HAVE BEEN PAID TO THE CONSIGNEE BY THE SHIPPER ON THE MARKET VALUE OF LOST PROPERTY HAD IT BEEN DELIVERED AT DESTINATION IN GOOD CONDITION. THE COURT THERE STATED THAT "THE MATTER OF ACCOUNTING BETWEEN A SHIPPER AND CONSIGNEE IS OF NO CONCERN TO THE CARRIER.'

THE AUTHORITIES CITED ABOVE SEEM TO BE DISPOSITIVE OF ANY QUESTION AS TO THE MEASURE OF DAMAGES IN THE PRESENT CASE. UNDER THE CIRCUMSTANCES, THE REPORTED VALUE OF THE LOST BEARINGS, $3,074.85, SHOULD BE REMITTED IN FULL SETTLEMENT OF THIS CLAIM TO PRECLUDE ADJUSTMENT BY DEDUCTION OF A LIKE AMOUNT FROM AMOUNTS OTHERWISE DUE THE TEXAS AND PACIFIC RAILWAY COMPANY.