B-147836, JUL. 31, 1962

B-147836: Jul 31, 1962

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 19. 567.60 WHICH WAS WITHHELD FROM MONIES OTHERWISE DUE YOU AS COMPENSATION FOR DAMAGE TO SIX GUIDED MISSILE CONTAINERS WHICH OCCURRED EN ROUTE FROM THE OLIVER CORPORATION. YOU TAKE THE POSITION THAT SINCE THE CONTAINERS WERE DAMAGED TO THE EXTENT THAT THEY WERE UNSERVICEABLE BUT REPAIRABLE THE AMOUNT DEDUCTED IS NOT THE TRUE MEASURE OF DAMAGE AND THAT IF YOU ARE TO BE HELD RESPONSIBLE FOR THE DAMAGE THE AMOUNT OF THE GOVERNMENT'S CLAIM SHOULD BE REDUCED TO A REASONABLE REPAIR FIGURE. DAMAGE WAS NOTED ON BILL OF LADING NO. AS WELL AS TO CONTAINERS 1177 AND 1184 BUT IT IS REPORTED THAT THE LATTER TWO CONTAINERS WERE SUBSEQUENTLY DETERMINED TO BE IN SERVICEABLE CONDITION.

B-147836, JUL. 31, 1962

TO TRANSAMERICAN FREIGHT LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 19, 1961, AND MARCH 29, 1962, REQUESTING REVIEW OF OUR SETTLEMENT DATED NOVEMBER 27, 1961, WHICH DISALLOWED YOUR CLAIM PER SUPPLEMENTAL BILL NO. 37581-A FOR REFUND OF $3,567.60 WHICH WAS WITHHELD FROM MONIES OTHERWISE DUE YOU AS COMPENSATION FOR DAMAGE TO SIX GUIDED MISSILE CONTAINERS WHICH OCCURRED EN ROUTE FROM THE OLIVER CORPORATION, SHELBYVILLE, ILLINOIS, TO THE HICKS CORPORATION, BOSTON, MASSACHUSETTS, WHILE MOVING UNDER GOVERNMENT BILL OF LADING NO. N-30395706 DATED SEPTEMBER 4, 1957.

YOU TAKE THE POSITION THAT SINCE THE CONTAINERS WERE DAMAGED TO THE EXTENT THAT THEY WERE UNSERVICEABLE BUT REPAIRABLE THE AMOUNT DEDUCTED IS NOT THE TRUE MEASURE OF DAMAGE AND THAT IF YOU ARE TO BE HELD RESPONSIBLE FOR THE DAMAGE THE AMOUNT OF THE GOVERNMENT'S CLAIM SHOULD BE REDUCED TO A REASONABLE REPAIR FIGURE.

THE AMOUNT RECOVERED REPRESENTS THE VALUE ADMINISTRATIVELY PLACED UPON THE CONTAINERS SERIALLY NUMBERED 1171, 1175, 1176, 1180, 1185 AND 1186. DAMAGE WAS NOTED ON BILL OF LADING NO. N-30395706 TO CONTAINERS SO NUMBERED, AS WELL AS TO CONTAINERS 1177 AND 1184 BUT IT IS REPORTED THAT THE LATTER TWO CONTAINERS WERE SUBSEQUENTLY DETERMINED TO BE IN SERVICEABLE CONDITION. IN ADDITION TO THOSE MENTIONED ABOVE, CONTAINERS NUMBERED 619, 793, 870, 1206, 1207, 1356, 1371 AND 1397 ARE ALSO REPORTED TO HAVE SUSTAINED IN-TRANSIT DAMAGE WHILE IN YOUR POSSESSION MOVING UNDER OTHER BILLS OF LADING AND YOU WERE ORIGINALLY REQUESTED TO BEAR THE COST OF HAVING THEM REPAIRED; HOWEVER, BECAUSE AN UNDETERMINABLE AMOUNT OF THE DAMAGES WAS ALSO INCURRED AS A DIRECT RESULT OF LOCAL HANDLING BY DEPOT EMPLOYEES, NO FURTHER CLAIM ACTION WAS TAKEN AGAINST YOUR COMPANY BY THE ADMINISTRATIVE OFFICE WITH RESPECT TO THESE CONTAINERS.

THE RECORD AVAILABLE HERE CONTAINS A COPY OF A REPORT BY THE NAVAL INSPECTOR IN CHARGE AT THE HICKS CORPORATION THAT HE CONSIDERS THAT ALL OF THE CONTAINERS DELIVERED BY YOUR COMPANY TO THE CONSIGNEE WERE IMPROPERLY LOADED; THAT ALL CONTAINERS WERE LOADED TWO HIGH IN ENCLOSED SEAL TRUCKS OF THE ORIGIN CARRIER, LOVELACE TRUCK SERVICE, 8 IN EACH TRUCK; THAT WHEN THE CONTAINERS WERE TRANSFERRED TO YOU AT THE POINT OF INTERCHANGE YOUR EMPLOYEES BROKE THE SEALS AND LOADED THE CONTAINERS THREE HIGH ON OPEN TRUCKS WITHOUT SIDES OR TOP; THAT BECAUSE OF THIS, SOME OF THE CONTAINERS WERE CRUSHED WHILE TRYING AN UNDERPASS WITHOUT PROPER CLEARANCE ACCORDING TO THE TRUCK DRIVERS, AND THAT SOME WERE DENTED IN THE REAR BY TRAFFIC SINCE THE REAR WAS UNPROTECTED AND THE REAR CONTAINERS OVERHUNG THE FLAT TRUCK BODY. THE REPORT NOTES THAT THE CONTAINERS WERE LOADED AT ORIGIN 8 PER SEALED TRUCK, WHEREAS YOU UNDERTOOK TO LOAD THEM AT POINT OF INTERCHANGE 27 PER OPEN FLAT TRUCK. THE NAVAL INSPECTOR'S REPORT CONCLUDES THAT ALL SUCH CONTAINERS WERE DELIVERED BY YOUR ORGANIZATION AT THE HICKS CORPORATION IN THIS MANNER IN SPITE OF HIS PROTESTS AND THE KNOWN DAMAGE THAT WAS RESULTING AND THAT THE DAMAGE WAS DUE TO EXTREME NEGLIGENT IMPROPER LOADING. THIS REPORT FURTHER STATES THAT YOUR COMPANY WAS NOTIFIED IMMEDIATELY OF THE ARRIVAL OF THE DAMAGED CONTAINERS AND THAT ON SEPTEMBER 12, 1957, MR. CHARLES WHITE OF YOUR ORGANIZATION VISITED THE HICKS CORPORATION AND EXAMINED THE DAMAGE TO THE CONTAINERS MOVING UNDER THE BILL OF LADING HERE INVOLVED AS WELL AS DAMAGE TO CONTAINERS UNDER ANOTHER BILL OF LADING AND THAT ON DECEMBER 12, 1957, YOUR MR. WHITE VISITED HICKS AND EXAMINED THE DAMAGE TO CONTAINERS RECEIVED UNDER TWO OTHER BILLS OF LADING. THUS THE RECORD FURNISHED US BY THE DEPARTMENT OF THE NAVY IS SUFFICIENT TO SHOW THAT THE ADMINISTRATIVE OFFICE HAS CLEARLY ESTABLISHED CARRIER LIABILITY FOR THE DAMAGE TO THESE CONTAINERS WHILE IN YOUR POSSESSION.

IT ALSO SEEMS CLEAR FROM THE RECORD THAT AT THE TIME OF THE DAMAGE IN SEPTEMBER 1957 THE CONTAINERS HERE INVOLVED WERE REPAIRABLE AND AS YOU POINT OUT IT IS ACADEMIC THAT IN THE CASE OF DAMAGE TO A SHIPMENT IT IS THE DUTY OF THE OWNER TO MITIGATE THE LOSS TO THE GREATEST EXTENT POSSIBLE.

THE RECORD AVAILABLE HERE SHOWS THAT IN MARCH 1959 THE OLIVER CORPORATION, THE PRIME CONTRACTOR FOR THE CONTAINERS, EXPRESSED AN INTEREST IN REPAIRING THEM. ITS ESTIMATE FOR THE REQUIRED REPAIRS, INCLUDING PAINTING AND STENCILING AS ORIGINALLY PRODUCED, WAS AS FOLLOWS:

SERIAL NUMBERS 1180 AND 1185, $175 EACH OR $350.

SERIAL NUMBERS 1171, 1175, 1176 AND 1186, $100 EACH OR $400.

THUS, IT APPEARS FROM THE ENTIRE RECORD NOW AVAILABLE THAT THE EXTENT OF CARRIER LIABILITY IN THIS CASE SHOULD BE LIMITED TO $750. ACCORDINGLY, OUR TRANSPORTATION DIVISION IS BEING INSTRUCTED TO ISSUE A SETTLEMENT, IF OTHERWISE PROPER, ALLOWING YOU THE DIFFERENCE BETWEEN THE AMOUNT OF $3,567.60 DEDUCTED BY THE ADMINISTRATIVE OFFICE AND $750 OR $2,817.60. SETTLEMENT ON SUCH BASIS SHOULD REACH YOU IN DUE COURSE.