B-153682, MAY 12, 1964

B-153682: May 12, 1964

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THE PROPERTY WAS LOADED INTO 11 CARS AT THE NAVAL WEAPONS PLANT ANNEX. BECAUSE TRUCK SCALES WERE NOT THERE AVAILABLE THE CARS WERE WEIGHED ON SCALES OF THE BALTIMORE AND OHIO RAILROAD AT WASHINGTON. THE CARS WERE REWEIGHED. THE NET WEIGHT WAS THEN SHOWN TO BE 1. OR SHRINKAGE" COLUMN ON THE REVERSE OF THE BILL OF LADING IS ANNOTATED AS FOLLOWS: "A SHORTAGE OF 9600 POUNDS OF SCRAP BRASS EXISTS ON B/L A 1754559. THE MATERIAL IS VALUED AT .22 CENTS PER POUND A TOTAL VALUE OF $2112. THE CARRIER IS RESPONSIBLE FOR THE SHORTAGE.'. SINCE THERE WAS NO OPPORTUNITY FOR LOSS IN TRANSIT AND POLICE PROTECTION WAS AFFORDED FROM THE TIME THEY WERE RECEIVED AT ORIGIN UNTIL FINAL DELIVERY AT DESTINATION.

B-153682, MAY 12, 1964

TO THE BALTIMORE AND OHIO RAILROAD COMPANY:

IN YOUR LETTER OF JULY 8, 1963, FILE NO. 525983-26, YOU PROTESTED THE DISALLOWANCE OF YOUR CLAIM--- PER BILL NO. 607308-A OF FEBRUARY 5, 1962,-- - FOR ADDITIONAL CHARGES IN THE AMOUNT OF $1,958.40, WHICH THE ADMINISTRATIVE OFFICE HAD RECOVERED BY DEDUCTION FROM YOUR BILL NO. 6102306, DATED MARCH 10, 1961, TO REIMBURSE THE GOVERNMENT FOR THE LOSS IN TRANSIT OF 9,600 POUNDS OF SCRAP BRASS, NOIBN, FROM 11 CARLOADS TRANSPORTED FROM BELLEVUE, D.C., TO PHILADELPHIA, PENNSYLVANIA, UNDER GOVERNMENT BILL OF LADING NO. A-1754559 OF APRIL 20, 1960.

THE PROPERTY WAS LOADED INTO 11 CARS AT THE NAVAL WEAPONS PLANT ANNEX, ANACOSTIA, D.C., AND BECAUSE TRUCK SCALES WERE NOT THERE AVAILABLE THE CARS WERE WEIGHED ON SCALES OF THE BALTIMORE AND OHIO RAILROAD AT WASHINGTON, D.C. COPIES OF THE WEIGHT CERTIFICATES COVERING SCALING BY THE CARRIER AT WASHINGTON SHOW THE TOTAL NET WEIGHT TO BE 1,573,200 POUNDS. UPON ARRIVAL AT DESTINATION, BUT PRIOR TO PLACEMENT FOR UNLOADING AT PHILADELPHIA, THE CARS WERE REWEIGHED, FOR REASONS UNKNOWN, BUT APPARENTLY AT THE REQUEST OF THE RAILROAD, AND THE NET WEIGHT WAS THEN SHOWN TO BE 1,563,600 POUNDS, OR A DEFICIT OF 9,600 POUNDS. THE "REPORT OF LOSS, DAMAGE, OR SHRINKAGE" COLUMN ON THE REVERSE OF THE BILL OF LADING IS ANNOTATED AS FOLLOWS:

"A SHORTAGE OF 9600 POUNDS OF SCRAP BRASS EXISTS ON B/L A 1754559. THE MATERIAL IS VALUED AT .22 CENTS PER POUND A TOTAL VALUE OF $2112. THE CARRIER IS RESPONSIBLE FOR THE SHORTAGE.'

IN YOUR PROTEST, YOU SUGGEST THAT THE DEFICIT IN WEIGHT MUST BE EXPLAINED BY A VARIATION IN THE SCALES, SINCE THERE WAS NO OPPORTUNITY FOR LOSS IN TRANSIT AND POLICE PROTECTION WAS AFFORDED FROM THE TIME THEY WERE RECEIVED AT ORIGIN UNTIL FINAL DELIVERY AT DESTINATION.

THE SHIPPER BEARS THE BURDEN OF PROVING BY COMPETENT EVIDENCE THE DELIVERY OF THE GOODS TO THE CARRIER, THE UNDERTAKING BY THE CARRIER TO TRANSPORT THE GOODS, AND THE FAILURE BY THE CARRIER TO PERFORM THE DUTY OF DELIVERING THE SAME QUANTITY OR QUALITY OF GOODS AT DESTINATION. MERCHANT SHIPPERS ASSOCIATION V. KELLOGG EXP. 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. HOWEVER, A PRIMA FACIE CASE IS ORDINARILY ESTABLISHED BY 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. UNITED STATES V. MISSISSIPPI VALLEY BARGE LINE COMPANY, 285 F.2D 381, 388; 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. ALTHOUGH YOU SUGGEST THAT THE DISCREPANCY IN WEIGHT BETWEEN THAT SHOWN ON THE BILL OF LADING, AS CORRECTED (1,573,200 POUNDS), AND THAT SHOWN BY THE RESCALING AT THE PHILADELPHIA NAVAL SHIPYARD, MUST BE DUE TO A VARIATION IN THE SCALES, NO CONCRETE EVIDENCE HAS BEEN PRESENTED OF SUCH CAUSE OF THE DISCREPANCY. THE OTHER HAND, THE COURT HELD IN JOSEPH TOKER CO. V. LEHIGH VALLEY R.CO., 97 A.2D 598, THAT SUCH A DISCREPANCY IN WEIGHT ESTABLISHED A PRIMA FACIE CASE OF LOSS IN TRANSIT WHICH MUST BE OVERCOME BY AFFIRMATIVE EVIDENCE TO THE CONTRARY.

IN ADDITION, YOU STATED IN YOUR LETTER OF JULY 8, 1963, THAT CAR NO. LV 33000 WAS WEIGHED A THIRD TIME AND ON THE THIRD WEIGHING SHOWED A DISCREPANCY OR 260 POUNDS MORE THAN THE SECOND WEIGHING. YOU ALLEGE THAT THIS INDICATES THAT THE ALLEGED LOSS OF 2,600 POUNDS FROM THAT CAR WAS A MERE VARIATION IN SCALES. ON THE CONTRARY, THE FACT THAT THE THIRD WEIGHING IS ONLY 260 POUNDS MORE THAN THE SECOND WEIGHING TENDS TO SUBSTANTIATE THE MUCH GREATER SHORTAGE IN TRANSIT.

ACCORDINGLY, NO EVIDENCE HAVING BEEN PRESENTED IN CONTRADICTION OF A PRIMA FACIE LOSS ESTABLISHED BY THE DISCREPANCY IN WEIGHT, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.