B-130307, MAR. 21, 1957

B-130307: Mar 21, 1957

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WAS WEIGHED AT BUFFALO ON AUGUST 2. THE RECORD HERE DOES NOT SHOW THAT ANY EXCEPTION TO THE LADING WAS TAKEN BY THE ORIGINATING CARRIER AT THIS TIME. WHILE THE CAR WAS STANDING IN THE LAS VEGAS. IT IS REPORTED THAT THE SAFETY VALVE BLEW OUT. SUBSEQUENT REWEIGHING REVEALED THAT 660 POUNDS OF TITANIUM TETRACHLORIDE WAS LOST. A CLAIM FOR THE VALUE OF THE LOST MATERIAL WAS SEASONABLY FILED WITH YOUR COMPANY AND. APPROPRIATE DEDUCTION WAS MADE FROM FUNDS OTHERWISE DUE YOUR COMPANY FOR OTHER SERVICES. UNLESS WE CAN FURNISH DEFINITE PROOF THAT THE CARRIERS ARE LIABLE FOR THIS LOSS. CASTS UPON THE CARRIERS CONCERNED THE BURDEN OF PROVING THAT THE LOSS RESULTED FROM SOME CAUSE FOR WHICH SUCH CARRIERS WERE NOT RESPONSIBLE IN LAW OR BY CONTRACT.

B-130307, MAR. 21, 1957

TO GENERAL CLAIMS AGENT, UNION PACIFIC RAILROAD COMPANY:

YOUR LETTER OF FEBRUARY 10, 1956, FILE 488708-16 UL 637900-16, TO THE BUREAU OF MINES, UNITED STATES DEPARTMENT OF THE INTERIOR, BOULDER CITY, NEVADA, CONCERNING A DEDUCTION OF $283.80 MADE TO COVER A LOSS OF GOVERNMENT PROPERTY MOVING UNDER WAYBILL 50214, CAR NATX-1483, IN AUGUST 1952, HAS BEEN FORWARDED HERE FOR REPLY.

THE RECORD SHOWS THAT ON AUGUST 1, 1952, THE PENNSYLVANIA RAILROAD COMPANY ACCEPTED FROM THE VICTORY CHEMICAL COMPANY AT BUFFALO, NEW YORK, ONE TANK CAR OF TITANIUM TETRACHLORIDE FOR TRANSPORTING TO THE UNITED STATES BUREAU OF MINES AT BOULDER CITY, NEVADA, UNDER GOVERNMENT BILL OB LADING NO. I-542688. THE TANK CAR, NATX-1483, HAVING A CAPACITY OF 80,000 POUNDS, WAS WEIGHED AT BUFFALO ON AUGUST 2, 1952, AND THE SCALING DISCLOSED THE WEIGHT OF THE CONTENTS AS 58,700 POUNDS. THE RECORD HERE DOES NOT SHOW THAT ANY EXCEPTION TO THE LADING WAS TAKEN BY THE ORIGINATING CARRIER AT THIS TIME. EN ROUTE, WHILE THE CAR WAS STANDING IN THE LAS VEGAS, NEVADA, YARDS, IT IS REPORTED THAT THE SAFETY VALVE BLEW OUT, SPILLING PART OF THE CONTENTS OF THE CAR. SUBSEQUENT REWEIGHING REVEALED THAT 660 POUNDS OF TITANIUM TETRACHLORIDE WAS LOST. A CLAIM FOR THE VALUE OF THE LOST MATERIAL WAS SEASONABLY FILED WITH YOUR COMPANY AND, UPON YOUR FAILURE TO PAY THE CLAIM, APPROPRIATE DEDUCTION WAS MADE FROM FUNDS OTHERWISE DUE YOUR COMPANY FOR OTHER SERVICES.

YOU STATE, IN EFFECT, THAT, SINCE THE GOVERNMENT HAS FAILED TO FURNISH ANY EVIDENCE TO SHOW ANY MISHANDLING ON THE PART OF YOUR COMPANY, YOU DO NOT SEE ANY REASON FOR MAKING THIS DEDUCTION. YOU STATE FURTHER THAT, UNLESS WE CAN FURNISH DEFINITE PROOF THAT THE CARRIERS ARE LIABLE FOR THIS LOSS, YOU MUST INSIST UPON AUTHORITY TO ISSUE A SUPPLEMENTAL BILL TO RECOVER THE AMOUNT DEDUCTED.

PROOF OF DELIVERY OF AN INTERSTATE SHIPMENT TO AN INITIAL CARRIER, AND OF FAILURE OF IT OR ITS CONNECTIONS TO DELIVER SAME TO THE CONSIGNEE AT DESTINATION, RAISES A PRESUMPTION OF NEGLIGENCE GIVING RISE TO THE LIABILITY IMPOSED BY THE INTERSTATE COMMERCE ACT FOR THE LOSS, AND CASTS UPON THE CARRIERS CONCERNED THE BURDEN OF PROVING THAT THE LOSS RESULTED FROM SOME CAUSE FOR WHICH SUCH CARRIERS WERE NOT RESPONSIBLE IN LAW OR BY CONTRACT. GALVESTON, H.ANDS.A.R. CO. V. WALLACE, 223 U.S. 481. THAT THE SUBJECT LOSS WAS NOT CAUSED BY THE ACT OF THE SHIPPER IN OVERLOADING THE CAR SEEMS APPARENT FROM THE FACT THAT ONLY 58,700 POUNDS WAS LOADED IN A CAR HAVING A CAPACITY OF 80,000 POUNDS AND FROM THE FURTHER FACT THAT NO EXCEPTION WAS TAKEN TO THE LADING AT THE TIME THE CAR WAS WEIGHED BY THE INITIAL CARRIER. THAT THE LOSS WAS NOT CAUSED BY THE INHERENT VICE OF THE GOODS SEEMS APPARENT FROM A REPORT OF THE BUREAU OF MINES AT BOULDER CITY. THE REPORT STATES THAT DURING THE YEARS 1952, 1953, AND 1954, SOME TWO MILLION POUNDS OF TITANIUM TETRACHLORIDE, SHIPPED IN TANK CARS FROM THE EAST, SOME OF IT DURING VARIOUS MONTHS OF THOSE YEARS WHEN TEMPERATURES WOULD HAVE BEEN COMPARABLE TO THOSE ENCOUNTERED BY THE SUBJECT SHIPMENT, WERE RECEIVED AT THE STATION, AND THAT NATX-1483 WAS THE ONLY CAR ON WHICH THE SAFETY VALVE BLEW.

IN THE ABSENCE OF AFFIRMATIVE EVIDENCE THAT THIS LOSS WAS WITHIN ONE OF THE GENERALLY RECOGNIZED EXCEPTIONS TO YOUR COMMON CARRIER LIABILITY, WE MUST CONCLUDE THAT YOU ARE NOT ENTITLED TO REFUND OF THE AMOUNT PREVIOUSLY DEDUCTED.