B-151590, OCT. 26, 1965

B-151590, OCT. 26, 1965

TO THE POSTMASTER GENERAL:

REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 23, 1965, FROM MR. JAMES P. OXENHAM, ACTING DIRECTOR, PROCUREMENT DIVISION, BUREAU OF FACILITIES OF YOUR DEPARTMENT, WITH ATTACHMENTS, FROM THE AAA TRUCKING CORPORATION, TRENTON, NEW JERSEY. THE FILE PERTAINS TO AN AMOUNT WITHHELD FROM THE CARRIER TO REIMBURSE THE GOVERNMENT FOR THE VALUE OF POST OFFICE DEPARTMENT PROPERTY REPORTED TO HAVE BEEN DAMAGED WHILE IN THE CUSTODY OF THE AAA TRUCKING CORPORATION. THE CARRIER INITIATED ACTION WITH THE DEPARTMENT TO RECOVER THE DEDUCTED AMOUNT, AND THE CLAIM WAS APPARENTLY FORWARDED HERE FOR ADJUDICATION AT THE REQUEST OF CONGRESSMAN FRANK THOMPSON, JR., OF NEW JERSEY.

THE RECORD SHOWS THAT THE SHIPMENT INVOLVING THE DAMAGE CLAIM CONSISTED OF 38 PIECES OF VARIOUS KINDS OF POSTAL EQUIPMENT, WEIGHING 3,546 POUNDS, WHICH WAS PICKED UP AT THE CAPITAL EQUIPMENT WAREHOUSE, BELLE MEAD, NEW JERSEY, ON JULY 7, 1964, BY THE AAA TRUCKING CORPORATION. THE BILL OF LADING COVERING THE SHIPMENT WAS SIGNED BY THE CARRIER'S AGENT WITHOUT EXCEPTION. THE SHIPMENT WAS DELIVERED BY THE AAA TRUCKING CORPORATION ON JULY 8, 1964, TO THE POSTMASTER, NORTH BRANFORD, CONNECTICUT, AND AFTER INSPECTION BY THE CONSIGNEE, THE DAMAGE WAS DISCOVERED AND THE REVERSE OF THE GOVERNMENT BILL OF LADING UNDER "REPORT, OR LOSS, DAMAGE, OR SHRINKAGE" WAS ANNOTATED,"ITEM 1742 DOOR WITH CONCEALED DAMAGE.'

AT THE POSTMASTER'S REQUEST, AN AGENT OF THE CARRIER INSPECTED THE DAMAGE AND HIS INSPECTION REPORT WAS COUNTERSIGNED BY THE POSTMASTER, CONSIGNEE. THE REPORT INDICATED THAT THE DAMAGED ITEM HAD BEEN SHIPPED IN ITS ORIGINAL CONTAINER AND THE DOOR WAS DESCRIBED AS BEING: "PACKED IN WOOD CASE WITH 8 SLATS FRONT AND BACK 1 INCH BY 4 INCHES - DOOR COVERED WITH PAPER--- CRATE AND PAPER IN GOOD CONDITION--- NO DAMAGE EVIDENT--- PAPER NOT TORN.' THE REPORT FURTHER SHOWED THAT THE SHIPMENT HAD RECEIVED PRIOR TRANSPORTATION WHICH APPARENTLY INVOLVED ITS MOVEMENT FROM THE MANUFACTURER IN FORT WORTH, TEXAS, TO THE CAPITAL EQUIPMENT WAREHOUSE, BELLE MEAD, NEW JERSEY. THE FILE DOES NOT INCLUDE ANY EVIDENCE SHOWING WHAT, IF ANY, INSPECTIONS HAD BEEN MADE BY THE WAREHOUSE ON RECEIPT OF THE DOOR FROM THE SUPPLIER OR THAT THE ARTICLE WAS INSPECTED PRIOR TO ITS RELEASE TO THE AAA TRUCKING CORPORATION FOR FURTHER CARRIAGE.

TO ESTABLISH A RIGHT TO DAMAGES THE GOVERNMENT WOULD HAVE THE BURDEN OF PROVING DELIVERY TO THE AAA TRUCKING CORPORATION IN GOOD CONDITION OR AT LEAST IN BETTER CONDITION THAN IT WAS RECEIVED AT DESTINATION. HAMILTON FOODS, INC. V. ATCHISON, T. AND S.FE.RY.CO., 83 F.SUPP. 478, AFFIRMED, 173 F.2D 573, CERTIORARI DENIED, 337 U.S. 917. TO HOLD THE CARRIER LIABLE FOR DAMAGES, THE SHIPPER MUST PROVE THAT THE DAMAGES ACTUALLY OCCURRED WHILE THE GOODS WERE IN THE POSSESSION OF THE CARRIER. SILVER LINING V. SHAIN, 117 A.2D 182, 186. IN CONCEALED DAMAGE CASES, THE CLAIMANT MUST ESTABLISH THAT NEITHER THE SHIPPER NOR THE CONSIGNEE COULD HAVE BEEN RESPONSIBLE FOR THE DAMAGE, AND AS A MATTER OF LOGICAL DEDUCTION THE DAMAGE, THEREFORE, MUST HAVE OCCURRED WHILE THE GOODS WERE IN THE CARRIER'S POSSESSION. ELDER AND JOHNSTON, INC. V. COMMERCIAL MOTOR FREIGHT OF INDIANA, 115 N.E. 2D 179.

WE CONCLUDE, AFTER GIVING DUE CONSIDERATION TO THE FACTS AND CIRCUMSTANCES OF RECORD AS RELATED TO THE CASES CITED, AND PARTICULARLY BECAUSE OF THE PRIOR TRANSPORTATION, THAT THE GOVERNMENT WOULD HAVE GRAVE DIFFICULTY IN SUSTAINING ITS BURDEN OF SHOWING THAT THE DAMAGED ARTICLE WAS DELIVERED TO THE AAA TRUCKING CORPORATION IN GOOD CONDITION, OR AT LEAST IN BETTER CONDITION THAN RECEIVED AT DESTINATION, AND THAT THE CONCEALED DAMAGE ACTUALLY OCCURRED WHILE THE GOODS WERE IN POSSESSION OF THE AAA TRUCKING CORPORATION. IN THESE CIRCUMSTANCES, THE CLAIM IS PROPER FOR ALLOWANCE IN THE FULL AMOUNT OF $63.93, AND THE STATED AMOUNT WILL BE CERTIFIED BY OUR TRANSPORTATION DIVISION FOR PAYMENT TO THE AAA TRUCKING CORPORATION WITH NOTICE TO CONGRESSMAN THOMPSON.

SINCE OUR OFFICE IS REQUIRED TO RETAIN IN ITS PERMANENT FILES ALL PAPERS PERTAINING TO CLAIMS WHICH HAVE BEEN SETTLED HERE, WE ARE UNABLE TO COMPLY WITH MR. OXENHAM'S REQUEST TO RETURN THE FILE. SEE 31 U.S.C. 74. HOWEVER, COPIES OF THE PAPERS SUBMITTED WITH HIS LETTER, WHICH WE TRUST WILL SERVE THE PURPOSE OF HIS REQUEST, ARE ENCLOSED.