B-150880, DEC. 24, 1963

B-150880: Dec 24, 1963

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TO THE INTERSTATE SYSTEM: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 14 AND DECEMBER 10. THIS AMOUNT WAS DEDUCTED TO REIMBURSE THE GOVERNMENT FOR THE COST OF REPAIRING DESKS DAMAGED IN TRANSIT EN ROUTE FROM THE GLOBE-WERNICKE COMPANY. 17 DESKS WERE TENDERED AND ACCEPTED BY YOU IN APPARENT GOOD ORDER AND CONDITION. THAT THE DESKS WERE IN GOOD CONDITION WHEN SHIPPED IS SUPPORTED BY A CERTIFICATE OF QUALITY ASSURANCE INSPECTION DATED DECEMBER 21. SHOWING DESKS WERE INSPECTED PRIOR TO SHIPMENT AND FOUND TO COMPLY WITH CONTRACT SPECIFICATIONS. CERTAIN OF THE DESKS WERE FOUND TO BE DAMAGED. THE CARRIER'S INSPECTION REPORT OF DAMAGE INDICATES THAT THE DESKS WERE DELIVERED DECEMBER 27. THAT THE CARRIER WAS REQUESTED TO INSPECT THE DAMAGE ON DECEMBER 28.

B-150880, DEC. 24, 1963

TO THE INTERSTATE SYSTEM:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 14 AND DECEMBER 10, 1963, FILE INTERSTATE PRO 15-151817 OF 12-22-61, GBL B-1765149 OF 12-4 61, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE OF AUGUST 8, 1963, DISALLOWING YOUR CLAIM OF $201.75. THIS AMOUNT WAS DEDUCTED TO REIMBURSE THE GOVERNMENT FOR THE COST OF REPAIRING DESKS DAMAGED IN TRANSIT EN ROUTE FROM THE GLOBE-WERNICKE COMPANY, NORWOOD, OHIO, TO THE DISTRICT DIRECTOR, INTERNAL REVENUE SERVICE, 1211 CHAPEL STREET, NEW HAVEN, CONNECTICUT, UNDER GOVERNMENT BILL OF LADING NO. B 1765149, DATED DECEMBER 21, 1961.

OUR RECORD SHOWS THAT ON DECEMBER 21, 1961, 17 DESKS WERE TENDERED AND ACCEPTED BY YOU IN APPARENT GOOD ORDER AND CONDITION, WITHOUT ANY EXCEPTION NOTED ON THE GOVERNMENT BILL OF LADING. THAT THE DESKS WERE IN GOOD CONDITION WHEN SHIPPED IS SUPPORTED BY A CERTIFICATE OF QUALITY ASSURANCE INSPECTION DATED DECEMBER 21, 1961, ISSUED BY GLOBE-WERNICKE COMPANY, SHOWING DESKS WERE INSPECTED PRIOR TO SHIPMENT AND FOUND TO COMPLY WITH CONTRACT SPECIFICATIONS. AT DESTINATION, CERTAIN OF THE DESKS WERE FOUND TO BE DAMAGED. THE CARRIER'S INSPECTION REPORT OF DAMAGE INDICATES THAT THE DESKS WERE DELIVERED DECEMBER 27, 1961, AND THAT THE CARRIER WAS REQUESTED TO INSPECT THE DAMAGE ON DECEMBER 28, 1961. THE CARRIER'S REPRESENTATIVE, J. F. KELLY, HOWEVER, FAILED TO INSPECT THE DAMAGED DESKS UNTIL JANUARY 5, 1962. THE SUBSTANCE OF THE CARRIER'S INSPECTION REPORT READS:

"CONSIGNEE STATES CARTONS WERE NOT BAD WHEN DELIVERED, BUT UPON UNPACKING THEY DISCOVERED AND IDENTIFIED AS FOLLOWS KEY 549 DESK REAR RIGHT HAND CORNER TOP SPRUNG AND TEXOLITE CRACKED KEY 207 SPRUNG CENTER DRAWER LOCK MECHANISM KEY 527--- 2 LEFT HAND DRAWERS DO NOT LOCK KEY T 529 2 LEFT HAND DRAWERS DO NOT LOCK KEY T 558 2 RIGHT HAND DRAWERS DO NOT LOCK KEY T 560 LOWER RIGHT HAND DRAWER BENT KEY T 555 LOWER RIGHT HAND DRAWER BENT KEY T 562 UPPER AND LOWER RIGHT HAND DRAWER BENT.'

THE GOVERNMENT BILL OF LADING NO. B-1765149 BEARS A NOTATION OF THE DAMAGE ON ITS FACE AND ON THE REVERSE SIDE. THE NATURE AND EXTENT OF THIS DAMAGE WAS TYPED AND LISTED ON A SHEET OF PAPER, WHICH WAS THEN ATTACHED AND BECAME A PART OF THE BILL OF LADING. IN ESSENCE, THE DAMAGE WAS SUBSTANTIALLY THE SAME AS THAT CONTAINED IN THE CARRIER'S INSPECTION REPORT OF JANUARY 5, 1962. ALSO, AN INVOICE FOR THE REPAIRS SHOWS THEY WERE MADE AT A COST OF $201.75.

YOU CONTEND THAT YOU NEVER RECEIVED ADVICE AS TO THE BASIS FOR THE ESTABLISHMENT OF YOUR LIABILITY FOR THE DAMAGED DESKS AND THAT YOU ARE AT A LOSS AS TO THE EVIDENCE DESIRED TO REFUTE THE FINDING OF YOUR LIABILITY FOR THE DAMAGES BY THE GENERAL SERVICES ADMINISTRATION, SINCE "WE HAVE A CLEAR RECEIPT FOR THE DELIVERY OF THIS SHIPMENT ALONG WITH INSPECTION REPORT SIGNED BY THE ACTING OFFICER IN CHARGE OF INTERNAL REVENUE, VERIFYING THAT THE DAMAGES ARE THE RESULT OF CONDITIONS OTHER THAN CARRIER NEGLECT.'

UNDER SECTION 20 (11) OF THE INTERSTATE COMMERCE ACT, 24 STAT. 386, AS AMENDED, 49 U.S.C. 20 (11) WAS MADE APPLICABLE TO MOTOR CARRIERS BY 49 U.S.C. 319, A MOTOR CARRIER, IN INTERSTATE COMMERCE, IS LIABLE FOR ANY FAILURE TO TRANSPORT SAFELY THE GOODS ENTRUSTED TO ITS CARE, UNLESS IT CAN AFFIRMATIVELY SHOW THAT THE DAMAGE TO THE GOODS WAS CAUSED BY THE SHIPPER, ACTS OF GOD, THE PUBLIC ENEMY, PUBLIC AUTHORITY, OR THE INHERENT VICE OR NATURE OF THE COMMODITY. SECRETARY OF AGRICULTURE V. UNITED STATES, 350 U.S. 162; ADAMS EXPRESS CO. V. CRONINGER, 226 U.S. 491; CHESAPEAKE AND OHIO RY. CO. V. THOMPSON MFG. CO. 270 U.S. 416; RAILROAD CO. V. REEVES 10 WALL 176, 189.

WE HAVE NO INFORMATION OF RECORD NOR HAVE YOU FURNISHED ANY EVIDENCE TO SHOW THAT YOU SHOULD NOT BE HELD LIABLE FOR THE DAMAGED DESKS RECEIVED AT DESTINATION, INTERNAL REVENUE SERVICE, NEW HAVEN, CONNECTICUT, SINCE YOU ACCEPTED THE DESKS FROM THE SHIPPER, THE GLOBE WERNICKE COMPANY, IN APPARENT GOOD ORDER AND CONDITION, AFTER INSPECTION BY THE ASSISTANT MANAGER, GOVERNMENT SALES DIVISION, THE GLOBE-WERNICKE COMPANY. MOREOVER, YOU HAVE NOT PRESENTED ANY EVIDENCE WHICH WOULD INDICATE THE DAMAGE TO THE DESKS WAS CAUSED BY ACTS OF THE SHIPPER, ACTS OF GOD, THE PUBLIC ENEMY, PUBLIC AUTHORITY OR THE INHERENT VICE OF THE COMMODITY.

WE NOTE THAT YOU MENTION HAVING A CLEAR RECEIPT FOR THE DELIVERY OF THIS SHIPMENT AND AN INSPECTION REPORT OF THE INTERNAL REVENUE SERVICE VERIFYING THAT THE DAMAGES WERE THE RESULT OF CONDITIONS OTHER THAN CARRIER NEGLECT. WE HAVE NO RECORD OF YOU FURNISHING COPIES OF SUCH EVIDENCE TO THIS OFFICE NOR THE ADMINISTRATIVE OFFICE. HOWEVER, A CLEAR RECEIPT GIVEN TO A CARRIER UPON DELIVERY IS NOT CONCLUSIVE AND MAY AFTERWARDS BE DISPROVED, AS HERE, BY THE ACTUAL FACTS AND CIRCUMSTANCES OF THE CASE. MEARS V. NEW YORK, N.H. AND H.R. CO., 52 A. 610.

ACCORDINGLY, WE MUST SUSTAIN OUR DISALLOWANCE OF YOUR CLAIM FOR $201.75, SINCE WE FIND THAT THE STEEL DESKS WERE NOT TRANSPORTED SAFELY BY YOU TO THE INTERNAL REVENUE SERVICE AFTER YOU HAD ..END :