B-132286, SEP. 5, 1957

B-132286: Sep 5, 1957

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BURLINGTON AND QUINCY RAILROAD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 19. IT IS YOUR POSITION THAT THERE WAS "AMPLE OPPORTUNITY FOR ERROR" IN COUNTING THE ARTICLES IN THE SHIPMENT. IN SUPPORT OF YOUR POSITION YOU CITE THE ASSOCIATION OF AMERICAN RAILROADS FREIGHT CLAIM RULES AND INDICATE THAT THE PRINCIPLES AND PRACTICES EXPLAINED IN THESE RULES ARE APPLICABLE IN DETERMINING THE EXTENT OF YOUR LIABILITY IN A SITUATION WHERE THE SHIPMENT IS LOADED BY THE RAIL CARRIER. IS HANDLED UNDER A CLEAR CAR SEAL RECORD. WERE ACCEPTED BY THE CARRIER FOR TRANSPORTATION FROM KANSAS CITY. OR SHRINKAGE" ON THE REVERSE SIDE OF THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS RECEIVED WITH FIVE CHAIRS SHORT.

B-132286, SEP. 5, 1957

TO CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1957, FILE GOVT. BILL 457975-A, FURNISHING A "STATEMENT OF FACTS" DATED JUNE 5, 1957, AND REQUESTING A REVIEW OF OUR SETTLEMENT CERTIFICATE OF APRIL 9, 1957, DISALLOWING YOUR CLAIM IN THE AMOUNT OF $50.25, REPRESENTING FIFTY PERCENT OF THE AMOUNT ADMINISTRATIVELY DEDUCTED FOR THE VALUE OF FIVE STEEL CHAIRS FOUND TO BE SHORT ON DELIVERY FROM A LESS-THAN CARLOAD SHIPMENT OF 125 CARTONS OF STEEL CHAIRS AND ONE CARTON OF STEEL TABLES TRANSPORTED FROM KANSAS CITY, MISSOURI, TO KNOXVILLE, IOWA, IN FEBRUARY 1956, UNDER GOVERNMENT BILL OF LADING GS 700945.

IT IS YOUR POSITION THAT THERE WAS "AMPLE OPPORTUNITY FOR ERROR" IN COUNTING THE ARTICLES IN THE SHIPMENT, OR FOR PILFERAGE, ON THE PART OF THE CARRIER AT ORIGIN AND THE CONSIGNEE AT DESTINATION AND THAT YOUR LIABILITY SHOULD BE LIMITED TO ONLY 50 PERCENT OF THE VALUE OF THE LOST CHAIRS. IN SUPPORT OF YOUR POSITION YOU CITE THE ASSOCIATION OF AMERICAN RAILROADS FREIGHT CLAIM RULES AND INDICATE THAT THE PRINCIPLES AND PRACTICES EXPLAINED IN THESE RULES ARE APPLICABLE IN DETERMINING THE EXTENT OF YOUR LIABILITY IN A SITUATION WHERE THE SHIPMENT IS LOADED BY THE RAIL CARRIER, UNLOADED BY THE CONSIGNEE, AND IS HANDLED UNDER A CLEAR CAR SEAL RECORD.

THE BILL OF LADING COVERING THIS SHIPMENT SHOWS THAT 125 CARTONS OF "CHAIRS, NOIBN, STEEL, SU" AND ONE CARTON OF "TABLES, NOIBN, STEEL, KD," WEIGHING 8,010 POUNDS, WERE ACCEPTED BY THE CARRIER FOR TRANSPORTATION FROM KANSAS CITY, MISSOURI, TO THE VETERANS ADMINISTRATION HOSPITAL, KNOXVILLE, IOWA, ON FEBRUARY 21, 1956. THE "REPORT OF LOSS, DAMAGE, OR SHRINKAGE" ON THE REVERSE SIDE OF THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS RECEIVED WITH FIVE CHAIRS SHORT. THE ,OVER, SHORT, AND DAMAGE REPORT" PREPARED BY THE CONSIGNEE SHOWS THAT THE SHIPMENT WAS TRANSPORTED IN CB AND Q CAR NO. 7291, WAS RECEIVED AT DESTINATION ON FEBRUARY 24, 1956, AND THAT THE CARRIER WAS NOTIFIED OF THE SHORTAGE ON FEBRUARY 29, 1956. THIS REPORT INDICATES THAT "TWO CARTONS WERE SHORT AND 1 CARTON CONTAINED ONLY ONE CHAIR. THIS CARTON HAD BEEN OPENED BEFORE BEING RECEIVED.' IT IS NOTED THAT YOUR "OVER, SHORT AND DAMAGE REPORT," DATED MARCH 7, 1956, CONCERNING THIS SHORTAGE, STATES THAT THE CAUSE OF THE DISCREPANCY WAS "PROBABLY ERROR IN FORWARDING," AND THAT THE SHORTAGE WAS DISCOVERED "WHILE UNLOADING.' YOUR "STATEMENT OF FACTS" OF JUNE 5, 1957, STATES THAT "THIS SHIPMENT WAS LOADED BY THE CARRIER INTO CAR Q 7291 AND SEALS K 11825 AND 11840 APPLIED. THIS CAR MOVED THRU TO DESTINATION, KNOXVILLE, IOWA, ARRIVING WITH ORIGIN SEALS INTACT * * *.' IT IS NOTED THAT THE MENTIONED SEALS ARE NOT INDICATED IN THE COVERING BILL OF LADING, AND IT IS NOT CLEAR JUST WHERE THE SEALS WERE APPLIED BY THE CARRIER.

THE GOVERNMENT SHIPPING AGENCY INVOLVED ADVISED THE CONSIGNEE WITH RESPECT TO THE SHIPMENT OF CHAIRS THAT ITS RECORDS SHOW THAT 125 CARTONS CONTAINING TWO CHAIRS EACH WERE TURNED OVER TO THE CARRIER WHOSE AGENT ACKNOWLEDGED RECEIPT OF THE FULL QUANTITY. THE SHIPPING AGENCY ALSO ADVISED THAT IT DID NOT SEAL THIS SHIPMENT AS IT WAS LESS THAN A CARLOAD LOT.

THIS RECORD ESTABLISHES THAT 125 CARTONS CONTAINING TWO CHAIRS EACH WERE TURNED OVER TO THE CARRIER AT KANSAS CITY, MISSOURI, FOR TRANSPORTATION TO KNOXVILLE, IOWA, WHERE A SHORTAGE OF FIVE CHAIRS WAS NOTED. THE FACT THAT ONE CARTON WAS FOUND TO BE OPEN AND ONE CHAIR WAS MISSING THEREFROM AT THE TIME OF UNLOADING SUPPORTS THE DETERMINATION AS TO THE CARRIER'S LIABILITY FOR THE SHORTAGE OF FIVE CHAIRS, AND THERE IS NO JUSTIFICATION FOR RELIEVING YOU FROM LIABILITY FOR THIS SHORTAGE. SEE GALVESTON, HARRISBURG AND SAN ANTONIO RY. CO. V. WALLACE, 223 U.S. 481; AND ECKMAN CHEMICAL CO. V. CHICAGO AND NORTH WESTERN RY. CO., 185 N.W. 444.