B-134733, JAN. 14, 1958

B-134733: Jan 14, 1958

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TO FRISCO TRANSPORTATION COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 5. WAS COUNTED. WHEN THE SHIPMENT WAS UNLOADED AT DESTINATION. WHILE NOTING THAT THE TRAILER WAS SEALED. THE CARRIER WAS PROMPTLY NOTIFIED AND THE SHORTAGE WAS CONFIRMED. WAS SENT TO YOUR COMPANY. THE PRESENT RECORD SHOWS THAT A LESSER NUMBER OF ARTICLES WERE DELIVERED AT DESTINATION THAN WERE RECEIVED BY THE CARRIER AT THE ORIGIN POINT OF THE SHIPMENT. THIS RAISES A PRESUMPTION THAT THE LOSS OCCURRED WHILE THE GOODS WERE IN THE POSSESSION OF THE CARRIER AND ESTABLISHES FOR THE SHIPPER A PRIMA FACIE CASE OF CARRIER LIABILITY. THE CARRIER HAS THE BURDEN OF AFFIRMATIVELY SHOWING THAT THE LOSS WAS OCCASIONED BY THE SHIPPER.

B-134733, JAN. 14, 1958

TO FRISCO TRANSPORTATION COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1957, CLAIM 36555, TO THE TRANSPORTATION DIVISION, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS 25, INDIANA, CONCERNING AN OFFER TO COMPROMISE FOR 50 PERCENT OF ITS VALUE THE GOVERNMENT'S CLAIM FOR $24.90, WHICH REPRESENTS THE VALUE OF AND UNEARNED FREIGHT ON THREE CASES (36 CANS) OF FROZEN ORANGE JUICE CONCENTRATE REPORTED LOST FROM A SHIPMENT TRANSPORTED BY FRISCO TRANSPORTATION COMPANY FROM KANSAS CITY, KANSAS, TO FORT LEONARD WOOD, MISSOURI, UNDER GOVERNMENT BILL OF LADING WY 6851758, IN DECEMBER 1956. THE CLAIM HAS BEEN FORWARDED HERE FOR SETTLEMENT.

THE SHIPMENT, CONSISTING OF 21 BOXES OF CHEESE AND 349 BOXES OF FROZEN PERISHABLE FOOD, WEIGHING A TOTAL OF 16,798 POUNDS, WAS COUNTED, LOADED, AND APPARENTLY SEALED AT ORIGIN INTO TRAILER NO. 799 BY THE CARRIER, AND ON DECEMBER 26, 1956, AN EMPLOYEE OF THE FRISCO TRANSPORTATION COMPANY SIGNED BILL OF LADING WY-6851758 EVIDENCING RECEIPT OF THE SHIPMENT WITHOUT EXCEPTION. ON DECEMBER 27, 1956, WHEN THE SHIPMENT WAS UNLOADED AT DESTINATION, GLEN MCCALLISTER, THE CONSIGNEE'S WAREHOUSE FOREMAN, WHILE NOTING THAT THE TRAILER WAS SEALED, DISCOVERED A SHORTAGE OF THREE CASES OF FROZEN ORANGE JUICE CONCENTRATE. THE CARRIER WAS PROMPTLY NOTIFIED AND THE SHORTAGE WAS CONFIRMED. GOVERNMENT BILL OF LADING WY-6851758 BEARS THE NOTATION "CARRIER'S LOAD COUNT AND SEAL.'

THE DEPARTMENT OF THE ARMY INVESTIGATED THE LOSS AND RECOMMENDED THAT THAT CARRIER BE HELD RESPONSIBLE FOR THE SHORTAGE. ON MAY 1, 1957, A FORMAL CLAIM FOR THE VALUE OF AND UNEARNED FREIGHT CHARGES ON THE LOSS, $24.90, WAS SENT TO YOUR COMPANY.

THE PRESENT RECORD SHOWS THAT A LESSER NUMBER OF ARTICLES WERE DELIVERED AT DESTINATION THAN WERE RECEIVED BY THE CARRIER AT THE ORIGIN POINT OF THE SHIPMENT. THIS RAISES A PRESUMPTION THAT THE LOSS OCCURRED WHILE THE GOODS WERE IN THE POSSESSION OF THE CARRIER AND ESTABLISHES FOR THE SHIPPER A PRIMA FACIE CASE OF CARRIER LIABILITY. CHESAPEAKE AND OHIO RAILROAD CO. V. THOMPSON MANUFACTURING COMPANY, 270 U.S. 416, 419; ATLANTIC COAST LINE RAILROAD CO. V. GEORGIA PACKING CO., 164 F.2D 1, 3. AS A DEFENSE, THE CARRIER HAS THE BURDEN OF AFFIRMATIVELY SHOWING THAT THE LOSS WAS OCCASIONED BY THE SHIPPER, ACTS OF GOD, THE PUBLIC ENEMY, PUBLIC AUTHORITY, OR THE INHERENT VICE OR NATURE OF THE COMMODITY. SEE SECRETARY OF AGRICULTURE V. UNITED STATES, 350 U.S. 162, 165 (FOOTNOTE); CHESAPEAKE AND OHIO RAILROAD CO. V. THOMPSON MANUFACTURING COMPANY, SUPRA.

YOUR LETTER OF JULY 5 DOES NOT PRESENT ANY SUBSTANTIVE EVIDENCE SERVING TO RELIEVE YOU OF LIABILITY FOR THE LOSS. IN THESE CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED IN RECOMMENDING FAVORABLE CONSIDERATION OF YOUR OFFER IN COMPROMISE. YOU SHOULD MAKE PROMPT REFUND OF THE AMOUNT OF THE GOVERNMENT'S CLAIM, $24.90, IN ORDER TO AVOID OTHER COLLECTION PROCEDURES.