B-118044, APR. 12, 1956

B-118044: Apr 12, 1956

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NORTHERN PACIFIC RAILWAY COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 28. IT APPEARS TO BE YOUR CONTENTION THAT THIS INDICATES THAT THE OMISSION OF SUCH A NOTATION FROM THE BILL OF LADING WAS THROUGH INADVERTENCE. THAT THE GOVERNMENT IS TAKING ADVANTAGE OF THIS TECHNICALITY TO PENALIZE THE CARRIER. THE OMISSION OF THE NOTATION FROM THE BILL OF LADING IS NO MERE TECHNICALITY. SUCH A NOTATION IS A DEVICE AUTHORIZED UNDER SECTION 21 OF THE BILLS OF LADING ACT. FAILURE TO ENTER THE NOTATION ON THE BILL OF LADING SHIFTS TO THE CARRIER THE BURDEN OF PROVING NOT ONLY THAT THE SHIPMENT WAS LOADED IMPROPERLY BUT ALSO THAT THE IMPROPER LOADING WAS THE PROXIMATE CAUSE OF THE DAMAGE. ALTHOUGH IT APPEARS THAT BLOCKING COULD HAVE BEEN USED.

B-118044, APR. 12, 1956

TO C. E. TOLLAS, FREIGHT CLAIM AGENT, NORTHERN PACIFIC RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 28, 1955, AND DECEMBER 16, 1955, CONCERNING THE DISALLOWANCE OF YOUR CLAIM 0 992483, DESK 29, FOR THE AMOUNT DEDUCTED BY THE ADMINISTRATIVE OFFICE FROM THE FREIGHT PAYMENT TO COVER DAMAGES TO GOVERNMENT PROPERTY MOVING UNDER BILL OF LADING WE- 1074610.

WITH THE EARLIER LETTER YOU SUBMITTED YOUR ENTIRE FILE IN THE MATTER AND REQUESTED FURTHER RECONSIDERATION OF OUR DECISIONS, B 118044, JUNE 8, 1954, AND FEBRUARY 21, 1955, SUSTAINING THE DISALLOWANCE OF THE CLAIM. SUCH FILE CONTAINS NO SIGNIFICANT MATTER NOT PREVIOUSLY CONSIDERED EXCEPT FOR A PHOTOCOPY OF THE SHIPPING ORDER WHICH CONTAINS A PENCIL NOTATION "SLAC" REPRESENTING, PRESUMABLY, THE PHRASE "SHIPPER'S LOAD AND COUNT.' IT APPEARS TO BE YOUR CONTENTION THAT THIS INDICATES THAT THE OMISSION OF SUCH A NOTATION FROM THE BILL OF LADING WAS THROUGH INADVERTENCE, AND THAT THE GOVERNMENT IS TAKING ADVANTAGE OF THIS TECHNICALITY TO PENALIZE THE CARRIER.

WHETHER INADVERTENT OR OTHERWISE, THE OMISSION OF THE NOTATION FROM THE BILL OF LADING IS NO MERE TECHNICALITY. AS INDICATED IN OUR DECISION OF JUNE 8, 1954, SUCH A NOTATION IS A DEVICE AUTHORIZED UNDER SECTION 21 OF THE BILLS OF LADING ACT, 49 U.S.C. 101, BY WHICH A CARRIER MAY PROTECT ITSELF AGAINST A SHIPPER'S FAILURE TO LOAD HIS FREIGHT PROPERLY, WHERE HE ASSUMES THE RESPONSIBILITY FOR DOING SO. FAILURE TO ENTER THE NOTATION ON THE BILL OF LADING SHIFTS TO THE CARRIER THE BURDEN OF PROVING NOT ONLY THAT THE SHIPMENT WAS LOADED IMPROPERLY BUT ALSO THAT THE IMPROPER LOADING WAS THE PROXIMATE CAUSE OF THE DAMAGE. SEE MODERN TOOL CORP. V. PENNSYLVANIA RAILROAD CO., 100 F.SUPP. 595, 596, AND THE ANNOTATION IN 44 A.L.R.2D 993-1015, PARTICULARLY AT PAGE 1008. CONTRARY TO YOUR CONTENTION, THE LOADING OF THE GENERATOR CROSSWISE IN THE INSTANT CASE WOULD NOT APPEAR TO BE IMPROPER PER SE. SEE ST. LOUIS-SAN FRANCISCO RAILWAY CO. V. GLOW ELECTRIC CO., 172 N.E. 425. ALTHOUGH IT APPEARS THAT BLOCKING COULD HAVE BEEN USED, THE ADMINISTRATIVE OFFICE AFTER THOROUGHLY INVESTIGATING THE FACTS OF THIS CASE HAS DETERMINED THAT ROUGH HANDLING, RATHER THAN THE METHOD OF LOADING, WAS THE PROXIMATE CAUSE OF THE INSTANT DAMAGE. IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS, WE MUST ACCEPT SUCH FINDING AS DETERMINATIVE OF THE ISSUE.

WE FIND NOTHING ELSE IN YOUR FILE WHICH WOULD ENABLE US TO REACH A CONCLUSION DIFFERENT FROM THAT REACHED IN OUR PREVIOUS DECISIONS IN THE MATTER. ACCORDINGLY, THE CONCLUSION REACHED IN SUCH DECISIONS IS AFFIRMED, AND YOUR FILE IS RETURNED HEREWITH.