B-141136, DEC. 21, 1959

B-141136: Dec 21, 1959

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INC.: REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 27 AND DECEMBER 8. AS THE ORIGIN CARRIER AND THE REQUIRED ROUTING IS VIA THAT CARRIER AND . THE BILL OF LADING BEARS A CERTIFICATE THAT THIS MACHINE WAS "RECEIVED BY THE TRANSPORTATION COMPANY NAMED ABOVE (DOYLE FREIGHT LINES. THE SHIPMENT WAS DELIVERED AT DESTINATION BY THE ACME FAST FREIGHT. IT IS STATED: "NOTICE IS HEREBY GIVEN THE CARRIER TO WHOM THIS BILL OF LADING IS SURRENDERED THAT THE SHIPMENT WAS RECEIVED IN CONDITION SHOWN BELOW AND THAT CLAIM IS MADE FOR THE VALUE OF SUCH LOSS. THE INDICATED DAMAGE WAS REPORTED ON "DD FORM (6)" ATTACHED TO THE BILL OF LADING. THE DAMAGED SHIPMENT WAS REPAIRED BY THE ABOVE MANUFACTURER AT A COST TO THE GOVERNMENT OF $467.62.

B-141136, DEC. 21, 1959

TO ACME FAST FREIGHT, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 27 AND DECEMBER 8, 1959, RELATIVE TO THE DISALLOWANCE OF YOUR CLAIM, PER BILL 12762 A, FOR $467.62, DEDUCTED BY THE DEPARTMENT OF THE NAVY TO EFFECT COLLECTION OF ITS CLAIM AGAINST YOU FOR THAT AMOUNT. THE CLAIM REPRESENTS THE AMOUNT PAID TO THE CONTRACTOR FOR REPAIRS TO AN "AMERICAN WHEELABRATOR SKEW ROLL MACHINE," SHIPPED FROM SAGINAW, MICHIGAN, TO THE NAVAL AMMUNITION DEPOT, ST. JULIANS CREEK, PORTSMOUTH, VIRGINIA, ON BILL OF LADING NO. N-31211635, IN NOVEMBER 1953. THIS BILL OF LADING CLEARLY SHOWS THE DOYLE FREIGHT LINES, INC., AS THE ORIGIN CARRIER AND THE REQUIRED ROUTING IS VIA THAT CARRIER AND ,HENNIS FREIGHT LINES, INC.'

THE BILL OF LADING BEARS A CERTIFICATE THAT THIS MACHINE WAS "RECEIVED BY THE TRANSPORTATION COMPANY NAMED ABOVE (DOYLE FREIGHT LINES, INC.) * * * IN APPARENT GOOD ORDER AND CONDITION * * *, TO BE FORWARDED TO DESTINATION BY SAID COMPANY AND CONNECTING LINES, THERE TO BE DELIVERED IN LIKE GOOD ORDER AND CONDITION TO SAID CONSIGNEE.' THE SHIPMENT WAS DELIVERED AT DESTINATION BY THE ACME FAST FREIGHT, INC. IN THE "REPORT OF LOSS, DAMAGE, OR SHRINKAGE" ON THE REVERSE OF THE BILL OF LADING, IT IS STATED:

"NOTICE IS HEREBY GIVEN THE CARRIER TO WHOM THIS BILL OF LADING IS SURRENDERED THAT THE SHIPMENT WAS RECEIVED IN CONDITION SHOWN BELOW AND THAT CLAIM IS MADE FOR THE VALUE OF SUCH LOSS, DAMAGE, OR SHRINKAGE AS INDICATED.'

THE INDICATED DAMAGE WAS REPORTED ON "DD FORM (6)" ATTACHED TO THE BILL OF LADING. BY LETTER DATED DECEMBER 22, 1953, YOUR GENERAL AGENT, F. B. MCCOMBS, JR., OF NORFOLK, VIRGINIA, INFORMED THE U.S. NAVAL AMMUNITION DEPOT, THE CONSIGNEE, THAT "THE DAMAGED MACHINERY HAS BEEN INSPECTED AND YOU MAY PROCEED WITH FILING CLAIM.' FURTHER, YOUR NORFOLK OFFICE, AFTER BEING REQUESTED TO AUTHORIZE THE AMERICAN WHEELABRATOR CORPORATION TO REPLACE THE DAMAGED PARTS, BY LETTER DATED AUGUST 18, 1954, FILE: C 9793 DT 68853 11-18-53, TO THE NAVAL AMMUNITION DEPOT, REQUESTED THAT DEPOT TO "PLEASE ACCEPT THIS LETTER AS AUTHORIZATION TO REPLACE THE DAMAGED PARTS ON THE SHIPMENT COVERED BY THE ABOVE FILE.' THE DAMAGED SHIPMENT WAS REPAIRED BY THE ABOVE MANUFACTURER AT A COST TO THE GOVERNMENT OF $467.62. UPON YOUR REFUSAL TO REMIT THE AMOUNT OF $467.62, THAT AMOUNT WAS DEDUCTED IN MAKING PAYMENT OF AMOUNTS OTHERWISE DUE YOU.

RESPECTING THE CARRIER'S LIABILITY, WHERE DAMAGE TO SHIPMENTS WHILE IN THEIR POSSESSION IS SHOWN, AS HERE, BY PROOF THAT THE GOODS WERE RECEIVED BY THE ORIGIN MOTOR CARRIER IN GOOD CONDITION AND DELIVERED BY IT OR ITS CONNECTIONS IN A DAMAGED CONDITION, A PRIMA FACIE CASE IS MADE OUT AGAINST IT AND THE BURDEN IS THEN ON THE CARRIER TO SHOW BY POSITIVE PROOF THAT SUCH DAMAGE WAS DUE TO A CAUSE WITHIN THE EXCEPTIONS TO ITS COMMON LAW LIABILITY AS AN INSURER. SEE GALVESTON, HARRISBURG AND SAN ANTONIO RAILWAY CO. V. WALLACE, 223 U.S. 481, 492. THUS THE CARRIER HAS THE BURDEN OF PROVING THAT THE DAMAGE TO THE SHIPMENT WAS DUE TO IMPROPER PREPARATION AND PACKING OF THE GOODS.

IN YOUR CLAIM FOR REFUND OF THE DEDUCTION MADE TO RECOVER THE LOSS DUE TO THIS DAMAGE, YOU FURNISH TWO MEMORANDUMS DATED MARCH 6, 1956, APPARENTLY WRITTEN BY EMPLOYEES OF THE NORFOLK AND WESTERN RAILROAD, ONE A CAR CHECKER AND THE OTHER A WAREHOUSE OR TRANSFER FOREMAN. THESE STATEMENTS WRITTEN OVER TWO YEARS AFTER THE DELIVERY OF THE SHIPMENT ARE CONTRADICTORY, IN THAT THE CAR CHECKER STATES "FOUR NUTS AND BOLTS VIBRATED LOOSE CAUSING MOTOR TO FALL FROM TOP OF MACHINE; " AND THE TRANSFER FOREMAN STATES THAT "2 NUTS WORKED LOOSE AND FELL OFF THROWING ENTIRE WEIGHT ON OTHER 2 BOLTS WHICH WERE ALSO LOOSE AND CAUSED BASE TO BREAK AND MOTOR TO DROP DOWN.' THERE ARE OTHER APPARENT DISCREPANCIES BETWEEN THE STATEMENTS MADE BY THESE EMPLOYEES TWO YEARS AFTER THE SHIPMENT WAS TRANSPORTED, AND THE RECORD OF THE DAMAGE MADE AT THE TIME OF DELIVERY OF THE SHIPMENT AND FORWARDED HERE BY THE ADMINISTRATIVE OFFICE IN SUPPORT OF ITS DECLINATION OF YOUR CLAIM. CERTAINLY, THESE EMPLOYEES OF THE RAILROAD HAVE NO KNOWLEDGE OF THE CONDITION OF THE SHIPMENT AT THE TIME IT WAS DELIVERED TO THE ORIGIN CARRIER, A COMMON CARRIER BY MOTOR VEHICLE. THE STATEMENTS MUST HAVE BEEN MADE ON AN ASSUMPTION OF THE CONDITION WHICH EXISTED AT ORIGIN. FURTHER, SUCH ASSUMPTIONS RELATE TO A SHIPMENT UNLOADED ON NOVEMBER 24, 1953; WHEREAS, THE CERTIFICATE ON THE FACE OF THE BILL OF LADING SHOWS THAT THE INSTANT SHIPMENT WAS DELIVERED NOVEMBER 16, 1953. THEREFORE, THESE STATEMENTS MAY NOT BE ACCEPTED AS PROOF OF THE CONDITION OF THE INSTANT SHIPMENT WHEN DELIVERED TO THE ORIGIN CARRIER, AND BRINGING THE DAMAGE WITHIN THE COMMON LAW EXCEPTIONS.