B-131855, JAN. 22, 1958

B-131855: Jan 22, 1958

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TO MISSOURI PACIFIC RAILROAD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 14. THE DEDUCTION OF $509.66 WAS MADE TO RECOVER THE VALUE OF. THE RECORD SHOWS THAT THE BILL OF LADING COVERING THIS SHIPMENT WAS ISSUED BY COLONEL OWEN R. IT IS RECITED THEREIN THAT THERE WAS RECEIVED BY THE INITIAL CARRIER. THE SHIPMENT WAS DESCRIBED IN THE BILL OF LADING AS "1 EA GUN. " IT IS SHOWN THAT THE SHIPMENT WAS RECEIVED WITH A LOSS OF ONE BOX OF MISCELLANEOUS TOOLS HAVING A VALUE OF $504.53. THE SAID BILL OF LADING CONTAINING SUCH NOTICE OF LOSS WAS APPARENTLY SURRENDERED TO YOUR COMPANY SHORTLY AFTER DELIVERY OF THE SHIPMENT FOR USE IN SUPPORT OF BILLING FOR THE CHARGES. YOU CONTEND THAT THIS WAS A SHIPPER'S LOAD AND COUNT CONSIGNMENT DUE TO THE FACT THAT THE CAR WAS LOADED BY THE SHIPPER AND UNLOADED BY THE CONSIGNEE WITHOUT CARRIERS' REPRESENTATIVES BEING PRESENT AT THE TIME OF LOADING OR UNLOADING OF THE CAR AND THAT THERE IS NO LIABILITY WITH THE CARRIERS AS TO THE ALLEGED SHORTAGE.

B-131855, JAN. 22, 1958

TO MISSOURI PACIFIC RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 14, 1957, AND EARLIER LETTER, CONCERNING YOUR CLAIM FOR $509.66, THAT BEING THE AMOUNT ADMINISTRATIVELY DEDUCTED IN MAKING PAYMENT OF YOUR BILL NO. 62078,WHEREIN YOU CLAIMED $614.64 FOR THE TRANSPORTATION OF ONE MOUNTED GUN AND SEVEN BOXES OF EXTRA PARTS AND TOOLS SHIPPED BY THE MILITARY PROPERTY CUSTODIAN OF ARKANSAS STATE COLLEGE, JONESBORO, ARKANSAS, TO THE TRANSPORTATION OFFICER, PUEBLO ORDNANCE DEPOT, PUEBLO (AVONDALE), COLORADO, UNDER GOVERNMENT BILL OF LADING NO. WW-8182298, MARCH 9, 1949. THE DEDUCTION OF $509.66 WAS MADE TO RECOVER THE VALUE OF, AND THE UNEARNED FREIGHT CHARGES ON, ONE BOX OF TOOLS WHICH CHECKED SHORT AT DESTINATION.

THE RECORD SHOWS THAT THE BILL OF LADING COVERING THIS SHIPMENT WAS ISSUED BY COLONEL OWEN R. MARRIOTT, TRANSPORTATION OFFICER, HEADQUARTERS, FOURTH ARMY, FORT SAM HOUSTON, TEXAS, AND IT IS RECITED THEREIN THAT THERE WAS RECEIVED BY THE INITIAL CARRIER, ST. LOUIS SOUTHWESTERN RAILWAY COMPANY,"* * * THE PUBLIC PROPERTY HEREINAFTER DESCRIBED, IN APPARENT GOOD ORDER AND CONDITION * * * TO BE FORWARDED TO DESTINATION BY THE SAID COMPANY AND CONNECTING LINES, THERE TO BE DELIVERED IN LIKE GOOD ORDER AND CONDITION" TO THE CONSIGNEE. THE SHIPMENT WAS DESCRIBED IN THE BILL OF LADING AS "1 EA GUN, NOIBN, BORE UNDER 6 INCHES BUT NOT LESS THAN 3/4 INCH, MOUNTED ON MOUNT, WITH 7 BOXES EXTRA PARTS OR TOOLS STRAPPED TO FLOOR OF CAR (GUN, AA 90 MM, MI).' THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING SHOWS RECEIPT OF THE PUBLIC PROPERTY DESCRIBED IN THE BILL OF LADING IN APPARENT GOOD ORDER AND CONDITION EXCEPT AS NOTED ON THE REVERSE, AND ON THE REVERSE THEREOF, IN THE SPACE DESIGNATED "REPORT OF LOSS, DAMAGE, OR SHRINKAGE," IT IS SHOWN THAT THE SHIPMENT WAS RECEIVED WITH A LOSS OF ONE BOX OF MISCELLANEOUS TOOLS HAVING A VALUE OF $504.53. THE SAID BILL OF LADING CONTAINING SUCH NOTICE OF LOSS WAS APPARENTLY SURRENDERED TO YOUR COMPANY SHORTLY AFTER DELIVERY OF THE SHIPMENT FOR USE IN SUPPORT OF BILLING FOR THE CHARGES.

IN YOUR LETTER OF OCTOBER 22, 1956, YOU CONTEND THAT THIS WAS A SHIPPER'S LOAD AND COUNT CONSIGNMENT DUE TO THE FACT THAT THE CAR WAS LOADED BY THE SHIPPER AND UNLOADED BY THE CONSIGNEE WITHOUT CARRIERS' REPRESENTATIVES BEING PRESENT AT THE TIME OF LOADING OR UNLOADING OF THE CAR AND THAT THERE IS NO LIABILITY WITH THE CARRIERS AS TO THE ALLEGED SHORTAGE. THE BILL OF LADING RECORD DOES NOT SPECIFICALLY REFLECT THAT SHIPPER'S LOAD AND COUNT WAS INVOLVED.

IN ANY EVENT, HOWEVER, IT IS NOT DISPUTED THAT THE SHIPMENT--- APPARENTLY OPEN TO INSPECTION SINCE IT WAS LOADED ON A FLAT CAR--- WAS ACCEPTED FOR TRANSPORTATION BY THE AGENT OF THE INITIAL CARRIER AS BEING IN APPARENT GOOD ORDER AND CONDITION AND IN THE QUANTITY DESCRIBED IN THE BILL OF LADING. IN SUCH A SITUATION, THE GENERAL RULE IS THAT AS BETWEEN THE PARTIES AND THEIR PRIVIES A BILL OF LADING CONSTITUTES PRIMA FACIE EVIDENCE OF THE ACTUAL DELIVERY TO THE CARRIER OF GOODS OF THE CHARACTER AND IN THE QUANTITY THEREIN SPECIFIED. SEE GULF C. AND S.F. RY. CO. V. GALBRAITH, 39 S.W. 2D 91, 93. A COMMON CARRIER, HAVING THE FULL CUSTODY OF PROPERTY WHICH IT HAS ACCEPTED FOR TRANSPORTATION, BUT WHICH IS NOT DELIVERED AT ITS DESTINATION, HAS THE BURDEN OF ESTABLISHING ITS FREEDOM FROM LIABILITY. IN THE ABSENCE OF EVIDENCE AS TO HOW THE LOSS OCCURRED, A PRESUMPTION ARISES THAT IT RESULTED FROM THE CARRIER'S NEGLIGENCE. SEE GALVESTON, H. AND S.A. RY. CO. V. WALLACE, 223 U.S. 481, 492 (1912). THIS PRESUMPTION IS NOT REBUTTED BY THE FACT THAT THE SHIPMENT WAS UNLOADED WITHOUT AN AGENT OF THE CARRIER BEING PRESENT. SEE CENTRAL OF GEORGIA RAILWAY CO. V. UNITED STATES, 129 C.CLS. 278, 281 (1954).

THE ADMINISTRATIVE OFFICE REPORTS THAT YOU HAVE PRESENTED VARIOUS ARGUMENTS WHICH, IT STATES, HAVE BEEN REFUTED IN EACH CASE BY INVESTIGATIONS AND SUPPORTING DOCUMENTS SAID TO BE AVAILABLE IN THEIR OFFICE, AND, PRESUMABLY, YOU HAVE RECEIVED THE BENEFIT OF THE INFORMATION THUS DEVELOPED.

THE QUESTION OF THE DELIVERY OF THE GOODS TO THE CARRIER AND THE RECEIPT THEREOF BY THE CONSIGNEE AT DESTINATION IS ONE OF FACT THAT IS PRIMARILY FOR THE CONSIDERATION OF THE ADMINISTRATIVE OFFICER, AND THE UNBROKEN RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS OF THE UNITED STATES AS CORRECT, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. SUCH EVIDENCE HAS NOT BEEN FURNISHED BY YOU. SEE 11 COMP. GEN. 473 AND 16 COMP. GEN. 1105.

IN THE ABSENCE, AS HERE, OF AFFIRMATIVE EVIDENCE THAT THIS LOSS WAS WITHIN ONE OF THE GENERALLY RECOGNIZED EXCEPTIONS TO YOUR COMMON CARRIER LIABILITY, WE FIND NO BASIS FOR EXCUSING YOU FROM LIABILITY AND MUST CONCLUDE THAT YOU ARE NOT ENTITLED TO REFUND OF THE AMOUNT PREVIOUSLY DEDUCTED IN ADJUSTMENT OF THE GOVERNMENT'S CLAIM FOR THE VALUE OF THE LOST ARTICLES, PLUS UNEARNED FREIGHT.