B-153056, MAR. 20, 1964

B-153056, MAR. 20, 1964

TO THE ATLANTIC COAST LINE RAILROAD COMPANY:

BY YOUR LETTER OF DECEMBER 5, 1963, YOUR CLAIM 5-292742-9, YOU REQUEST REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM PER BILL NO. 268971 PFOR THE AMOUNT OF $286.69. THIS AMOUNT WAS DEDUCTED BY THE ADMINISTRATIVE OFFICE FROM A BILL OTHERWISE PAYABLE TO YOUR COMPANY TO RECOVER FOR THE LOSS OF NINE RACK ASSEMBLIES VALUED AT $270, PLUS UNEARNED FREIGHT CHARGES IN THE AMOUNT OF $16.69. THE SHIPMENT ON WHICH THE LOSS OCCURRED DESCRIBED AS "VEHICLES, MOTOR AUTOMOBILE, FREIGHT (1 1/2 TON)," WITH REGISTRATION NUMBERS 60B 5556 AND 60B 5573, WAS TRANSPORTED FROM PRESQUE ISLE AIR FORCE BASE, MAINE, TO MCCOY AIR FORCE BASE, FLORIDA, UNDER GOVERNMENT BILL OF LADING NO. B-2497524 DATED JULY 21, 1961.

ON ARRIVAL AT DESTINATION A CLEAR BILL OF LADING WAS ACCOMPLISHED TO THE DESTINATION CARRIER ON AUGUST 1, 1961. HOWEVER, THE SHIPMENT TALLY SHEET OF THE SAME DATE SHOWING DELIVERY OF THESE VEHICLES BEARS THE NOTATION "NO SIDES" BENEATH SHIPPER'S DOCUMENT NO. 0145, WHICH DESIGNATES THE TRUCK BEARING REGISTRATION NO. 60B 5573. THE TECHNICAL INSPECTION STATEMENT, AFTO FORM 50, DATED JULY 19, 1961, PREPARED AT PRESQUE ISLE AIR FORCE BASE, ON THE SAME DATE BILL OF LADING NO. B 2497524 WAS PREPARED BY THE ISSUING OFFICE, SHOWS THAT VEHICLE 60B 5573 WAS SHIPPED WITH BRACKETS, MOUNTINGS, TAILGATE, BOWS, AND CANVAS, IN CONNECTION WITH THE BODIES. SUBSEQUENT INSPECTION SHEET AFTO FORM 50 PREPARED AT MCCOY AIR FORCE BASE ON AUGUST 7, 1961, BEARS THE FOLLOWING REMARK:

"ACCEPTANCE

"PUBLICATIONS: SHOP MANUAL, AND PARTS BOOK MISSING; ALL GATES MISSING ON BED, AND REAR RAIL BENT.'

IN ADDITION THE INCHECKER'S DISCREPANCY STATEMENT, AF FORM 69 DATED AUGUST 1, 1961, THE SAME DATE AS THE DELIVERY OF THE SHIPMENT, STATES:

"SHIPMENT OF TWO VEHICLES WAS RECEIVED MCCOY AFB, FLA. ON 1 AUG 61, ON RAIL CAR NO. CP 300997, SHIPPING TICKET 1192 00000145, WITH NINE (9) EACH RACK ASSY., MISSING FROM VEHICLE 60B 5573. GOVERNMENT BILL OF LADING FOR THIS SHIPMENT B2497524.'

IN YOUR LETTER REQUESTING REVIEW OF OUR DISALLOWANCE YOU DENY THAT A PRIMA FACIE CASE OF CARRIER LIABILITY HAS BEEN ESTABLISHED FOR THE REASON THAT THE AIR FORCE HAS FAILED TO ESTABLISH THAT NINE RACK ASSEMBLIES WERE A PART OF THE SHIPMENT INASMUCH AS NONE OF THE SHIPPING DOCUMENTS MENTIONED THE RACK ASSEMBLIES AND THE STATEMENT BY LORING AIR FORCE BASE OF MAY 27, 1962, WHICH IS NOT IN OUR FILE, TO THE EFFECT THAT

"EACH VEHICLE REQUIRES NINE (9) RACK ASSEMBLIES, THEREFORE NINE (9) RACK ASSEMBLIES WERE BANDED TO EACH VEHICLE," IS DEEMED INSUFFICIENT PROOF THAT "RACK ASSEMBLIES WERE, IN FACT, ATTACHED TO THE VEHICLE.' IN ADDITION YOU STATE THAT THERE IS NO CARRIER INSPECTION REPORT AND THE DETAILED AND COMPLETE CARRIER INVESTIGATION REVEALED NO OPPORTUNITY FOR RACKS TO HAVE BEEN REMOVED FROM THE TRUCKS IF ACTUALLY BANDED TO THEM AS STATED.

THE BURDEN IS ON THE SHIPPER TO PROVE INITIALLY BY COMPETENT EVIDENCE DELIVERY OF THE GOODS TO THE CARRIER, AN UNDERTAKING BY THE CARRIER TO TRANSPORT THE GOODS, AND A FAILURE BY THE CARRIER TO PERFORM THE DUTY OF DELIVERING THE SAME QUANTITY OR QUALITY OF GOODS AT DESTINATION. SEE MERCHANT SHIPPERS ASSOCIATION V. KELLOGG EXPRESS AND DRAYING CO., 170 P.2D 923; GULF C. AND S.F.RY.CO. V. GALBRAITH, 39 S.W.2D 91; RAILWAY EXPRESS AGENCY V. ANDERSON, 45 SO.2D 168; SKYLAND HOSIERY CO. V. AMER.RY. EXPRESS CO., 114 S.E. 823; JOSEPH TOKER CO. V. LEHIGH VALLEY R.CO., 97 A.2D 598 AND GOLDBERG V. NEW YORK, N.H. AND H.R.CO., 153 A. 812. ORDINARILY THE BILL OF LADING, CONSTITUTING THE CONTRACT OF CARRIAGE AND RECEIPT FOR THE GOODS, SIGNED BY THE CARRIER AND BEARING THE CONSIGNEE'S CERTIFICATE OF DELIVERY WITH THE DISCREPANCIES NOTED, ALTHOUGH NOT CONCLUSIVE, CONSTITUTES WEIGHTY AND PRIMA FACIE EVIDENCE OF THESE ELEMENTS. STROHMEYER AND ARPE COMPANY V. AMERICAN LINE S.S.CORP., 97 F.2D 360; GULF, C. AND S.F.RY. V. GALBRAITH, CITED ABOVE; AND METALS REFINING CO. V. ST. LOUIS-SAN FRANCISCO CO. 137 S.W.2D 977. WHILE, IN THE PRESENT INSTANCE, THE RACK ASSEMBLIES ARE NOT MENTIONED IN THE BILL OF LADING, THE FACT THAT THE RACK ASSEMBLIES WERE FORWARDED IS SHOWN BY THE TECHNICAL INSPECTION, AFTO FORM 50, PREPARED AT PRESQUE ISLE AIR FORCE BASE, AND THE INSPECTION SHEET, AFTO FORM 50, PREPARED AT DESTINATION, TOGETHER WITH THE INCHECKER'S DISCREPANCY STATEMENT CLEARLY INDICATE THAT THE ABSENCE OF THE RACK ASSEMBLIES AS WELL AS THE ABSENCE OF THE SHOP MANUALS WERE NOTED AT DESTINATION ON DELIVERY. THE CARRIER WAS NOT INITIALLY NOTIFIED OF THE MISSING ITEMS BECAUSE IT WAS NOT KNOWN BY THE CONSIGNEE WHETHER THESE ITEMS HAD BEEN IN FACT SHIPPED, AND THE GOVERNMENT BILL OF LADING WAS ACCOMPLISHED WITHOUT EXCEPTION. IN RESPONSE TO INVESTIGATION HOWEVER THE ORIGIN INSTALLATION ADVISED:

"1. REFERENCE YOUR LETTER DATED 39 AUGUST 1961. A CHECK WITH THE BASE MOTOR POOL INDICATES THAT THERE WAS A SHORTAGE OF SHOP MANUALS AND PARTS BOOKS. SOME VEHICLES WERE SHIPPED WITH THESE MANUALS AND SOME WERE NOT.

"2. ALL GATES WERE SECURELY BANDED TO EACH VEHICLE.' ACCORDINGLY, THE EVIDENCE CLEARLY SHOWS THAT THE RACK ASSEMBLIES WERE SHIPPED WITH THE VEHICLES, BUT WERE NOT DELIVERED AT DESTINATION. THE CARRIER IS THEREFORE OBLIGATED TO PRESENT AFFIRMATIVE EVIDENCE SHOWING EITHER THAN THE PRIMA FACIE CASE ESTABLISHED BY THE SHIPPER IS NOT AS PRESENTED OR THAT THE LOSS OCCURRED THROUGH ONE OF THE EXCEPTED CAUSES. OTHERWISE, THE CARRIER IS LIABLE AS AN INSURER. THOMPSON V. JAMES G. MCCARRICK CO., 205 F.2D 897; RICHARDS MACHINERY CO. V. MCNAMARA MOTOR EXPRESS, 97 N.W.2D 396; GULF, C. AND S.F.RY. V. GALBRAITH, SUPRA; TEX.-ARIZ. MOTOR FREIGHT V. BENNETT, 324 S.W.2D 32, THE CONCURRING OPINION; FIRST NATIONAL BANK V. MO.PAC.RY., 278 S.W. 1075; SO.RY.CO. V. N.W. FRUIT EXCHANGE, 98 SO. 382; SPANN V. ALABAMA AND V.R.CO., 74 SO. 141; GOLDBERG V. NEW YORK, N.H. AND R., CITED ABOVE.

SINCE NO AFFIRMATIVE EVIDENCE HAS BEEN PRESENTED IN REBUTTAL OF THE PRIMA FACIE EVIDENCE SHOWING LOSS OF THE GATE ASSEMBLIES IN TRANSIT, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

IN YOUR REQUEST FOR REVIEW YOU ALSO PROTEST THE AMOUNT OF THE DEDUCTION STATING THAT THE AMOUNT OF THE DAMAGES HAS NEVER BEEN REVEALED AND NO ALLOWANCE HAS BEEN MADE FOR DEPRECIATION. THE MEASURE OF THE DAMAGES IS SHOWN ON THE REPORT OF SURVEY TO BE THE COST OF REPLACEMENT AND THE REPLACEMENT ITEMS WERE OBTAINED DIRECTLY FROM THE LOCAL FORD COMPANY AT COST. THE TECHNICAL INSPECTION OF JULY 19, 1961, PREPARED AT PRESQUE ISLE AIR FORCE BASE SHOWS THAT VEHICLE 60B 5573 WAS A 1960 FORD TRUCK MODEL F500 WHICH HAD BEEN RUN ONLY 4,164 MILES. CONSEQUENTLY, IT APPEARS THAT THE VEHICLE WAS SUBSTANTIALLY NEW AND THAT NO ALLOWANCE FOR DEPRECIATION WAS PROPER. ALSO, SINCE NO FREIGHT IS EARNED AS TO THE 270 POUNDS OF FREIGHT NOT DELIVERED, A PROPORTION OF THE FREIGHT BILLED AND PAID FOR THE SHIPMENT OF 11,010 POUNDS UNDER BILL OF LADING NO. B-2497524, $772.50, WAS PROPERLY FOR COLLECTION AND IT IS NOTED THAT $16.69 WAS DEDUCTED ON THAT ACCOUNT. WHILE SUCH AMOUNT APPEARS TO BE SLIGHTLY LESS THAN 270/11,010 OF THE FREIGHT PAID $772.50 OR $18.94, THE DIFFERENCE IS TOO SMALL TO WARRANT FURTHER ADJUSTMENT.