B-120646, OCT 19, 1954

B-120646: Oct 19, 1954

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INC.: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 20 AND SEPTEMBER 20. UNDER THE PROCEDURES OBTAINING IN THIS OFFICE YOU ARE ENTITLED TO A REVIEW BY THE COMPTROLLER GENERAL OF THE ACTION TAKEN BY THE CLAIMS DIVISION. YOUR LETTERS ARE BEING TREATED AS A REQUEST FOR SUCH A REVIEW. YOU STATE THAT WHEN THE EQUIPMENT WAS LOADED AT THE SENECA ORDNANCE DEPOT YOU WERE FURNISHED GOVERNMENT BILLS OF LADING. THAT THE WEIGHT WAS STATED AS 128. YOU STATE THAT THE ENTRY WAS MADE BY PERSONNEL WHO SHOULD HAVE HAD ACCESS TO THE CORRECT WEIGHT. YOU WERE FORCED TO ACCEPT THE WEIGHT STATED AS CORRECT. THAT THE TRAILER ON WHICH THE CRANE WAS LOADED HAD A RATED CAPACITY OF 150. THAT IN SUCH CIRCUMSTANCES IT WAS NOT THE NORMAL PROCEDURE TO CHECK THE WEIGHT SINCE THE WEIGHT STATED ON THE BILL OF LADING WAS WELL WITHIN THE CAPACITY OF THE TRAILER.

B-120646, OCT 19, 1954

PRECIS-UNAVAILABLE

CARPENTER HAULING AND RIGGING CO., INC.:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 20 AND SEPTEMBER 20, 1954, REQUESTING INFORMATION AS TO HOW YOU MAY APPEAL FROM THAT PART OF SETTLEMENT OF AUGUST 6, 1954, WHICH DISALLOWED YOUR CLAIM FOR $2,944.45 REPRESENTING THE COST OF REPAIRS TO A TRAILER DAMAGED IN MOVING A CRANE FROM SENECA ORDNANCE DEPOT TO CARTERET SUB-DEPOT OF RARITAN ARSENAL ON GOVERNMENT BILL OF LADING WX-8248394. UNDER THE PROCEDURES OBTAINING IN THIS OFFICE YOU ARE ENTITLED TO A REVIEW BY THE COMPTROLLER GENERAL OF THE ACTION TAKEN BY THE CLAIMS DIVISION, AND YOUR LETTERS ARE BEING TREATED AS A REQUEST FOR SUCH A REVIEW.

THE RECORD SHOWS THAT THE TRAILER BROKE IN TWO NEAR SENECA, NEW YORK, WHILE TRANSPORTING THE CRANE. IN YOUR LETTER OF AUGUST 20, YOU STATE THAT WHEN THE EQUIPMENT WAS LOADED AT THE SENECA ORDNANCE DEPOT YOU WERE FURNISHED GOVERNMENT BILLS OF LADING; THAT THE WORD "ACTUAL" HAD BEEN TYPED IN AT THE HEAD OF THE COLUMN "WEIGHTS"; AND THAT THE WEIGHT WAS STATED AS 128,000 POUNDS. FURTHER, YOU STATE THAT THE ENTRY WAS MADE BY PERSONNEL WHO SHOULD HAVE HAD ACCESS TO THE CORRECT WEIGHT; THAT SINCE YOU HAD NO FACILITIES FOR CHECKING THE WEIGHT, YOU WERE FORCED TO ACCEPT THE WEIGHT STATED AS CORRECT; THAT SUBSEQUENT INVESTIGATION DISCLOSED THE ACTUAL WEIGHT OF THE CRANE TO BE IN EXCESS OF 200,000 POUNDS; THAT THE TRAILER ON WHICH THE CRANE WAS LOADED HAD A RATED CAPACITY OF 150,000 POUNDS; AND THAT IN SUCH CIRCUMSTANCES IT WAS NOT THE NORMAL PROCEDURE TO CHECK THE WEIGHT SINCE THE WEIGHT STATED ON THE BILL OF LADING WAS WELL WITHIN THE CAPACITY OF THE TRAILER.

THE TRANSPORTATION OFFICER STATES THAT AT THE TIME HE WAS NOTIFIED TO MAKE ARRANGEMENTS FOR MOVING THE CRANE, THE WEIGHT OF SAME WAS FURNISHED HIM BY THE DEPOT PROPERTY OFFICE AS 128,000 BUT THAT A SUBSEQUENT INVESTIGATION DISCLOSED THE WEIGHT TO BE 193,840 POUNDS OR 65,840 POUNDS IN EXCESS OF THE WEIGHT STATED ON THE BILL OF LADING.

IN A SOMEWHAT SIMILAR CASE THE SUPREME COURT OF THE STATE OF NEW YORK, APPELLATE DIVISION, IN THE CASE OF HANNA V. PITT & SCOTT, 106 N.Y.S. 145, HELD THAT IT IS NOT A PART OF THE IMPLIED CONTRACT OF SHIPMENT THAT A SHIPPER SHOULD DECLARE THE TRUE WEIGHT OF AN ARTICLE SHIPPED AND THAT WHERE AN INJURY OCCURS BECAUSE THE EQUIPMENT USED IS INSUFFICIENT - ALTHOUGH ADEQUATE FOR THE WEIGHT STATED - THE SHIPPER IS NOT LIABLE FOR NEGLIGENCE IN UNDERSTATING THE WEIGHT OF SUCH ARTICLE OF AN OBVIOUS NATURE. IN REACHING SUCH CONCLUSION THE COURT STATED -

"A FURTHER PHASE OF THE QUESTION IS PRESENTED BY THE ALLEGATION OF THE COMPLAINT THAT THE DEFENDANT REPRESENTED THE WEIGHT TO BE 9,000 POUNDS; BUT INASMUCH AS NO DUTY RESTED UPON THE DEFENDANT TO DECLARE THE WEIGHT, AND INASMUCH AS THE CARRIER MIGHT READILY HAVE DETERMINED THE WEIGHT ITSELF, THE DEFENDANT'S STATEMENT OF THE WEIGHT WAS NOTHING MORE THAN A MERE EXPRESSION OF AN OPINION, WHICH THE CARRIER MIGHT USE AS IT SAW FIT, BUT CERTAINLY HAD NO RIGHT TO RELY UPON AT THE DEFENDANT'S PERIL."

WHILE YOU HAVE STATED IN YOUR ORIGINAL LETTER THAT YOU HAD NO FACILITIES FOR CHECKING THE WEIGHT OF THE CRANE, THE ACTUAL WEIGHT OF SAME COULD HAVE BEEN OBTAINED BY YOU FROM THE MANUFACTURER, WHICH THE RECORD INDICATES YOU DID EVENTUALLY. IN SHOWING THE WEIGHT AS 128,000 POUNDS THE TRANSPORTATION OFFICER WAS ACTING IN GOOD FAITH AND WAS HONESTLY MISTAKEN AS TO THE ACTUAL WEIGHT OF THE CRANE. THE WEIGHT AS STATED WAS FOR INFORMATION PURPOSES ONLY AND THERE IS NO INDICATION THAT IT WAS INTENDED TO SERVE AS A GUARANTY OR WARRANTY.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.