B-143334, JAN. 10, 1961

B-143334: Jan 10, 1961

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TO THE PENNSYLVANIA RAILROAD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2. THE SHIPMENT WAS LOADED ON CAR NO. ORIGINALLY WAS CHECKED THREE PIECES SHORT AT DESTINATION AS FOLLOWS: 1 BOX AIRPLANE PARTS S/T FLAP ASSEMBLY 920 POUNDS 1 BOX OPTICAL INSTRUMENTS S/T 155301 DRIFTMETER 240 POUNDS 1 BOX COMPASS. REPORTED THAT THE SHIPMENT WAS PLACED FOR UNLOADING ON JANUARY 28. THAT WHEN UNLOADING WAS COMPLETED ON FEBRUARY 3. THE ABOVE ITEMS WERE MISSING. THE BOX OF AIRPLANE PARTS WEIGHING 920 POUNDS WAS LATER REPORTED AS HAVING BEEN RECEIVED. YOUR FREIGHT AGENT AT MIDDLETOWN WAS NOTIFIED OF THE SHORTAGE ON MARCH 11. THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS LOADED AND COUNTED BY THE SHIPPER.

B-143334, JAN. 10, 1961

TO THE PENNSYLVANIA RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1960, FILE 7-14 1K, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF AUGUST 19, 1959 (CLAIM NO. TK673819), WHICH DISALLOWED YOUR BILL NO. CLAIM 760-50116 IN THE AMOUNT OF $531.06.

OF THIS AMOUNT, $519.96 REPRESENTS THE VALUE OF A DRIFTMETER WEIGHING 240 POUNDS AND A COMPASS WEIGHING 9 POUNDS, CHECKED SHORT IN A SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING WY-5640789 ISSUED JANUARY 21, 1955, AND $11.10 REPRESENTS UNEARNED FREIGHT ON THE TWO ITEMS.

OUR RECORDS SHOW THAT BILL OF LADING NO. WY-5640789 COVERED 79 PIECES OF MISCELLANEOUS FREIGHT DESCRIBED ON A CONTINUATION SHEET TO THE BILL OF LADING, TRANSPORTED FROM NEW ORLEANS PORT OF EMBARKATION, NEW ORLEANS, LOUISIANA, TO OLMSTED AIR FORCE BASE, MIDDLETOWN, PENNSYLVANIA. THE SHIPMENT WAS LOADED ON CAR NO. RI 187624, A 48 FT. 6 IN. GONDOLA, AND ORIGINALLY WAS CHECKED THREE PIECES SHORT AT DESTINATION AS FOLLOWS:

1 BOX AIRPLANE PARTS S/T FLAP ASSEMBLY 920 POUNDS

1 BOX OPTICAL INSTRUMENTS S/T 155301 DRIFTMETER 240 POUNDS

1 BOX COMPASS, MAGNETIC S/T 2390 COMPASS 9 POUNDS

ERNEST A. DEFRANK, STOCK HANDLING FOREMAN IN THE TERMINAL SERVICES BRANCH OF THE TRANSPORTATION DIVISION, OLMSTED AIR FORCE BASE, REPORTED THAT THE SHIPMENT WAS PLACED FOR UNLOADING ON JANUARY 28, 1955, AND THAT WHEN UNLOADING WAS COMPLETED ON FEBRUARY 3, 1955, THE ABOVE ITEMS WERE MISSING. THE BOX OF AIRPLANE PARTS WEIGHING 920 POUNDS WAS LATER REPORTED AS HAVING BEEN RECEIVED. YOUR FREIGHT AGENT AT MIDDLETOWN WAS NOTIFIED OF THE SHORTAGE ON MARCH 11, 1955.

THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS LOADED AND COUNTED BY THE SHIPPER, AND WHILE THE SHIPPER ASSUMED THE RESPONSIBILITY OF SUCH LOADING, YOUR COMPANY WOULD BE LIABLE FOR SUCH DEFECTS AS COULD HAVE BEEN DISCOVERED BY VISUAL INSPECTION. SEE POWERS V. SIATS, 70 N.W.2D 344, 350. SINCE YOUR COMPANY ACCEPTED THE SHIPMENT WITHOUT EXCEPTION, IT HAS THE BURDEN OF ESTABLISHING 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. THE PRESUMPTION IS NOT REBUTTED WHERE THE CARRIER DECIDES NOT TO HAVE AGENTS PRESENT WHEN THE GOODS ARE UNLOADED. CENTRAL OF GEORGIA RAILWAY CO. V. UNITED STATES, 129 CT.CL. 278, 281.

HOWEVER, SINCE THERE IS SOME POSSIBILITY OF A MISCOUNT AT ORIGIN OR DESTINATION, AND ALTHOUGH THE PERTINENT ARMY SHIPPING DOCUMENTS REFLECT THE FACT THAT 79 PIECES OF FREIGHT ACTUALLY WERE LOADED AT ORIGIN, OUR OFFICE WOULD BE DISPOSED TO CONSIDER FAVORABLY A PROPOSAL BY YOUR COMPANY TO SETTLE THE MATTER BY REDUCTION OF YOUR CLAIM TO 50 PERCENT, OR $265.53, OF THE AMOUNT OF $531.06 RECOVERED BY THE GOVERNMENT. YOUR PROPOSAL, IF SUBMITTED, WOULD BE REFERRED TO THE ATTORNEY GENERAL WITH OUR RECOMMENDATION FOR ACCEPTANCE. IN THE ABSENCE OF ANY SUCH PROPOSAL BY YOUR COMPANY WE WOULD NOT BE WARRANTED, ON THE BASIS OF THE PRESENT RECORD, IN REVISING OUR SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM FOR $531.06.