B-153322, JUL. 23, 1964

B-153322: Jul 23, 1964

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TO THE NEW YORK CENTRAL SYSTEM: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 11. YOUR FILE REFERENCES ARE 12 250311. THE PAPERS FORWARDED HERE BY THE ADMINISTRATIVE OFFICE HAVE BEEN EXAMINED IN THE LIGHT OF THE INFORMATION CONTAINED IN YOUR LETTER OF AUGUST 13. THE SHEAR BOLTS ANCHORING THE LIFTING PADS UNDER EACH TO THE FLOORS OF THE CARS WERE BENT. WHILE IT IS CONCEDED THAT AT LEAST FOUR SHIPMENTS MOVING TO SCHENECTADY. MAY HAVE ARRIVED AT DESTINATION WITHOUT INTERIOR DAMAGE. IN THOSE INSTANCES THE EXTERIOR BLOCKING AND BRACING WAS ALSO REPORTED TO BE INTACT. BIN BREAKAGE OCCURRED ONLY IN THOSE INSTANCES WHERE EXTERNAL EVIDENCE OF ROUGH HANDLING WAS ALSO AVAILABLE. WE DO NOT AGREE THAT ALL OF THE DAMAGES HERE INVOLVED ARE ATTRIBUTABLE SOLELY TO FACTORS FOR WHICH THE CARRIER MAY NOT BE HELD RESPONSIBLE.

B-153322, JUL. 23, 1964

TO THE NEW YORK CENTRAL SYSTEM:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 11, 1964, REQUESTING TO BE ADVISED AS TO THE ACTION TO BE TAKEN CONCERNING CERTAIN OF YOUR CLAIMS FOR RECOVERY OF SUMS ADMINISTRATIVELY DEDUCTED IN 1962 AND 1963 FOR DAMAGE TO GOVERNMENT PROPERTY. YOUR FILE REFERENCES ARE 12 250311, 12-250312, 12- 250313, 12-250314, 12-250315, 12-250316, AND 12 250318. THE PAPERS FORWARDED HERE BY THE ADMINISTRATIVE OFFICE HAVE BEEN EXAMINED IN THE LIGHT OF THE INFORMATION CONTAINED IN YOUR LETTER OF AUGUST 13, 1963, WHEN YOU ORIGINALLY PRESENTED YOUR REQUEST FOR CONSIDERATION OF THE ABOVE CLAIMS.

YOU ATTRIBUTE THE DAMAGE INVOLVED IN ALL SEVEN SHIPMENTS SOLELY TO THE FAULT OF THE SHIPPER, SPECIFICALLY REFERRING TO THE ALLEGED FAULTY INSTALLATION OF THE BIN ASSEMBLIES AND THE OMISSION OF INTERIOR BRACING BY THE SHIPPER. THE ADMINISTRATIVE OFFICE REPORTED, HOWEVER, THAT IN EVERY CASE INVOLVING THE TEARING LOOSE OF AND DAMAGE TO BIN ASSEMBLIES, THE SHEAR BOLTS ANCHORING THE LIFTING PADS UNDER EACH TO THE FLOORS OF THE CARS WERE BENT, SO THAT THE RESTRAINING TIES HAD WORKED LOOSE, AND THE LIFTING PADS "DISTORTED.' PHOTOGRAPHIC EVIDENCE CLEARLY REVEALS CONSIDERABLE SHIFTING OF THE CARGO ON THE FLAT CARS AND DENTING OF THE EXTERIOR METAL OF THE VAN BODIES. WHILE IT IS CONCEDED THAT AT LEAST FOUR SHIPMENTS MOVING TO SCHENECTADY, PRIOR TO ADOPTION, ON APRIL 12, 1961, OF A REVISED BLOCKING AND BRACING PLAN PROVIDING FOR INTERIOR BRACING, MAY HAVE ARRIVED AT DESTINATION WITHOUT INTERIOR DAMAGE, IN THOSE INSTANCES THE EXTERIOR BLOCKING AND BRACING WAS ALSO REPORTED TO BE INTACT, AND NO CARGO SHIFTING HAD OCCURRED. IN SHORT, BIN BREAKAGE OCCURRED ONLY IN THOSE INSTANCES WHERE EXTERNAL EVIDENCE OF ROUGH HANDLING WAS ALSO AVAILABLE. NO BIN BREAKAGE OCCURRED IN ANY OF THE ELEVEN SHIPMENTS WHICH MOVED BY TRUCK.

IN THE LIGHT OF THE CLEAR CORRELATION BETWEEN THE OCCURRENCE OF BIN BREAKAGE AND THE INCIDENCE OF EXTERNAL EVIDENCE OF ROUGH HANDLING, WE DO NOT AGREE THAT ALL OF THE DAMAGES HERE INVOLVED ARE ATTRIBUTABLE SOLELY TO FACTORS FOR WHICH THE CARRIER MAY NOT BE HELD RESPONSIBLE. NOR CAN WE AGREE WITH THE VIEWS OF MR. J. A. PHELAN, YOUR DISTRICT FREIGHT CLAIM AGENT, INDIANAPOLIS, INDIANA, AS EXPRESSED IN HIS LETTER OF DECEMBER 14, 1962, COPY ATTACHED, THAT A CARRIER INSPECTOR IS RESPONSIBLE FOR ASCERTAINING ONLY THAT THE CARGO IS SO LOADED AS TO PERMIT MOVEMENT OVER THE ROADS WITHOUT FALLING OFF THE CARS. THE LAW IS WELL SETTLED THAT IF DEFECTS IN LOADING ARE APPARENT THROUGH THE ORDINARY OBSERVATION OF THE CARRIER'S AGENTS, THE CARRIER IS NOT RELIEVED OF ITS OBLIGATION TO INSURE PROPER LOADING, AND IS LIABLE FOR ANY DAMAGE THAT ENSUES FROM IMPROPER LOADING. SEE UNITED STATES V. SAVAGE TRUCK LINES, 209 F.2D 442, CERTIORARI DENIED 342 U.S. 952. ON THE BASIS OF THE INFORMATION PRESENTLY AVAILABLE, REFUND OF THE AMOUNTS DEDUCTED ADMINISTRATIVELY WOULD NOT BE JUSTIFIED.

WE NOTE FROM MR. PHELAN'S LETTER, HOWEVER, THAT A SUGGESTION APPARENTLY WAS MADE CONCERNING ADJUSTMENT OF THESE CLAIMS BY COMPROMISE. THE FILES FORWARDED TO US BY THE DEPARTMENT OF THE ARMY DO NOT CONTAIN COPIES OF CORRESPONDENCE CONCERNING THIS OFFER. IN THE ABSENCE OF INFORMATION AS TO THE TERMS OF ANY COMPROMISE PROPOSAL THAT MIGHT HAVE BEEN MADE, WE CANNOT REFER THE MATTER TO THE DEPARTMENT OF JUSTICE FOR CONSIDERATION AS AN OFFER IN COMPROMISE OR MAKE ANY RECOMMENDATION ..END :