B-134791, MARCH 6, 1958, 37 COMP. GEN. 583

B-134791, MARCH 6, 1958, 37 COMP. GEN. 583

PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. - CARRIER'S LIABILITY - BURDEN OF PROOF WHERE THE GOVERNMENT BILL OF LADING, UNDER WHICH A GOVERNMENT-OWNED AUTOMOBILE WAS SHIPPED OVERSEAS, INDICATES RECEIPT OF THE AUTOMOBILE IN GOOD CONDITION AT ORIGIN BY THE CARRIER AND DELIVERY TO THE CONSIGNEE AT DESTINATION DAMAGED, THERE IS A PRESUMPTION THAT THE DAMAGE AND PILFERAGE OCCURRED DURING TRANSPORTATION, AND WHERE THIS PRESUMPTION IS SUPPORTED BY INSPECTION REPORT OF THE AGENT OF THE CONSIGNEE AND CONSIGNEE AND THE ONLY EVIDENCE OFFERED BY THE CARRIER IS A DELIVERY RECORD, WHICH IS NOT IDENTIFIED WITH THE PARTICULAR SHIPMENT AND IS NOT SIGNED BY EITHER THE AGENTS OF THE CONSIGNEE OR THE AGENTS OF THE CARRIER, DEDUCTION FROM THE CARRIER'S BILL TO COVER THE LOSS WAS PROPER.

TO THE AMERICAN PRESIDENT LINES, MARCH 6, 1958:

WE HAVE CAREFULLY CONSIDERED THE MATTER OF DAMAGE TO A GOVERNMENT OWNED AUTOMOBILE TRANSPORTED BY YOUR COMPANY, WHICH WAS THE SUBJECT OF YOUR LETTER OF DECEMBER 30, 1957, FILE MANILA CLAIM 426-6 SS PRESIDENT ARTHUR V/18.

THE RECORD SO FAR MADE IN THIS CASE SHOWS THAT ONE UNBOXED CHEVROLET STATION WAGON, WEIGHING 3,660 POUNDS AND MEASURING 667.1 CUBIC FEET, WAS TENDERED TO YOUR COMPANY IN JERSEY CITY, NEW JERSEY, ON JULY 3, 1956, FOR TRANSPORTATION AND DELIVERY TO THE VETERANS ADMINISTRATION, IN CARE OF THE AMERICAN EMBASSY, AT MANILA, REPUBLIC OF THE PHILIPPINES, ON BILL OF LADING GS 739434. THE BILL OF LADING WAS SIGNED BY AN AGENT OF YOUR COMPANY TO ACKNOWLEDGE RECEIPT OF THE AUTOMOBILE IN ,APPARENT GOOD ORDER AND CONDITION" FOR DELIVERY "IN LIKE GOOD ORDER AND CONDITION" IN MANILA. AFTER THE VEHICLE HAD BEEN DISCHARGED FROM THE VESSEL AT DESTINATION, THE BILL OF LADING WAS ACCOMPLISHED TO SHOW THAT THE FRONT RUBBER FLOOR MATTING, VALUED AT $13.05, AND THE GAS CAP, VALUED AT $1.225, WERE MISSING. IN ADDITION, THERE WERE VARIOUS SCRATCHES AND DENTS ON THE FENDERS AND BODY OF THE CAR. A COPY OF AN " OVER, SHORT, AND DAMAGE REPORT," DATED DECEMBER 14, 1956, PREPARED BY THE CONSIGNEE, EVIDENCES THAT THE SHIPMENT WAS RECEIVED ON AUGUST 23, 1956; THE DAMAGE, VISIBLE UPON RECEIPT, AND LOSS WERE DISCOVERED AUGUST 23, 1956; THEY WERE REPORTED TO THE CARRIER AUGUST 23, 1956; AND THE CARRIER WAIVED ITS RIGHT OF INSPECTION. THIS REPORT ALSO STATES THAT THE LOSS AND DAMAGE WERE COVERED BY BAD ORDER INSPECTION REPORT, ARRASTRE SERVICE PORT OF MANILA, NO. 4947, DATED AUGUST 23, 1956. BY LETTER OF SEPTEMBER 10, 1956, THE MANILA PORT SERVICE INFORMED THE VETERANS ADMINISTRATION AT MANILA THAT IT HAD RECEIVED THE MOTOR VEHICLE FROM THE VESSEL IN THE CONDITION IN WHICH IT WAS DELIVERED TO THE CONSIGNEE.

BASED UPON AN ESTIMATE MADE BY NORTHERN MOTORS, INC., AT MANILA, THE REPAIR OF THE VEHICLE COST $105.575. THIS COST, TOGETHER WITH REPLACEMENT OF THE MISSING ACCESSORIES, RESULTED IN A TOTAL COST OF $119.85 TO THE GOVERNMENT TO RESTORE THE VEHICLE TO THE SAME GOOD ORDER AND CONDITION IN WHICH IT WAS DELIVERED TO THE AMERICAN PRESIDENT LINES AT JERSEY CITY AND IN WHICH THE CARRIER CONTRACTED TO DELIVER IT TO THE CONSIGNEE AT MANILA. UPON YOUR REFUSAL TO ACCEPT RESPONSIBILITY FOR ANY DAMAGE OTHER THAN TO THE LEFT FRONT FENDER, $119.85 WAS DEDUCTED FROM THE FREIGHT CHARGES CLAIMED, AND THE BALANCE OF THE CHARGES WERE PAID ON VOUCHER NO. 9364 IN THE APRIL 1957 ACCOUNTS OF DISBURSING OFFICER J. F. CANNON. THEREAFTER, ON JULY 19, 1957, YOU WROTE TO THE CONSIGNEE, TRANSMITTING YOUR SUPPLEMENTAL BILL AUD-35-A-PR FOR $91.51, THE DIFFERENCE BETWEEN THE AMOUNT DEDUCTED AND THE AMOUNT FOR WHICH YOU ADMITTED LIABILITY, $28.34. THIS BILL WAS TRANSMITTED HERE BY THE ADMINISTRATIVE OFFICE AND WAS DISALLOWED ON DECEMBER 4, 1957, BY OUR SETTLEMENT IN CLAIM TK-569095. YOUR LETTER OF DECEMBER 30, 1957, FOLLOWED, ASSERTING THAT EXCEPTIONS WERE TAKEN AT THE TIME OF DELIVERY ONLY TO THE DAMAGE FOR WHICH THE REPAIR COSTS TOTAL $28.34, AND THAT CONCLUSIVE EVIDENCE IN SUPPORT OF YOUR POSITION HAD BEEN FURNISHED IN CONNECTION WITH YOUR SUPPLEMENTAL BILL.

YOUR SUPPLEMENTAL BILL WAS SUPPORTED WITH A COPY OF THE REPAIR ESTIMATE MADE BY NORTHERN MOTORS, INC., WHICH ALSO SERVED AS THE BASIS FOR THE GOVERNMENT'S CLAIM FOR REPAIRS, AND WITH THE REPRODUCTION OF AN "1UNCRATED AUTO AND TRUCK RECEIVING AND/1OR DELIVERY RECORD," WHICH PURPORTED TO BE THE DELIVERY RECORD ON THE MOTOR VEHICLE SHIPPED. THIS DOCUMENT, DATED AUGUST 21, 1956, TWO DAYS BEFORE THE DATE OF THE BAD ORDER INSPECTION REPORT, NO. 4947, PREPARED BY THE MANILA PORT SERVICE, PRESUMABLY RELATES TO THE VEHICLE IN QUESTION, ALTHOUGH THE DOCUMENT CONTAINS NOTHING RELATING IT TO THE SHIPPING DOCUMENTS COVERING THE CHEVROLET STATION WAGON. THE SPACE FOR INSERTION OF THE BILL OF LADING NUMBER ON THE DELIVERY RECORD IS BLANK. THE DOCUMENT, BY MEANS OF DIAGRAMS, SHOWS DAMAGE TO THE LEFT FRONT FENDER OF A VEHICLE, AS DESCRIBED BY CODE LETTERS A AND F, AND DAMAGE TO THE LEFT REAR FENDER, AS SHOWN IN CODE LETTER F. IN THE SPACE CONTAINING THE KEY TO THE CODE USED, THE EXPLANATION OF THESE PARTICULAR CODE LETTERS HAS BEEN INDECIPHERABLY OVERWRITTEN. THERE ARE SPACES ON THIS REPORT FOR THE SIGNATURE OF THE PARTY RECEIVING OR DELIVERING THE GOODS AND AT THE END OF THE DOCUMENT IS THE RECITAL "THE ABOVE EXCEPTIONS COVERING THE CONDITION OF THE CAR," WITH APPROPRIATE SPACES FOR THE SIGNATURES OF THE PARTIES EITHER SHIPPING OR RECEIVING THE VEHICLE. ALL OF THE SPACES SO PROVIDED FOR SIGNATURES ARE BLANK.

IT IS FUNDAMENTAL THAT UPON PROOF OF GOODS LOADED IN GOOD CONDITION AND OUTTURNED DAMAGED, THE SHIPPER IS ENTITLED TO RECOVER UNLESS THE CARRIER SUCCEEDS IN EXCULPATING ITSELF BY PROVING THE DAMAGE RESULTED FROM A CAUSE FOR WHICH IT WAS NOT LIABLE OR THAT IT HAD EXERCISED DUE DILIGENCE TO AVOID DAMAGE. 46 U.S.C.A. 1304; AMERICAN TOBACCO COMPANY V. KATINGO HADJIPATERA, 81 F.1SUPP. 438; GENERAL FOODS CORPORATION V. THE TROUBADOUR, 98 F.1SUPP. 207; UNIVERSAL LEAF TOBACCO COMPANY OF CHINA V. BANK LINE, LIMITED, 115 F.1SUPP. 353. THE GOVERNMENT BILL OF LADING, EVIDENCING RECEIPT OF THE AUTOMOBILE IN GOOD CONDITION AT ORIGIN BY THE CARRIER AND DELIVERY TO THE CONSIGNEE AT DESTINATION DAMAGED, CREATED A PRESUMPTION THAT THE DAMAGE AND PILFERAGE OCCURRED IN THE COURSE OF TRANSPORTATION. THIS PRESUMPTION IS SUPPORTED BY THE INSPECTION REPORTS OF THE MANILA PORT SERVICE AND THE CONSIGNEE. THE ONLY EVIDENCE YOU HAVE OFFERED TO REBUT THE PRESUMPTION IS THE REPRODUCTION OF AN " UNCRATED AUTO AND TRUCK RECEIVING AND/1OR DELIVERY RECORD," WHICH IS OF NO PROBATIVE EVIDENTIARY VALUE, SINCE IT IS INSUFFICIENTLY IDENTIFIED WITH THE VEHICLE IN THE INSTANT CASE, AND IS SIGNED BY NEITHER THE AGENTS OF THE CONSIGNEE, THE MANILA PORT SERVICE, NOR AGENTS OF YOUR LINE.

UNDER THE CIRCUMSTANCES, THE SETTLEMENT DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.