B-153979, AUG. 31, 1964

B-153979, AUG. 31, 1964

TO JACK COLE COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1964 (AND FOLLOW-UP LETTER OF JUNE 15, 1964), WHICH IS, IN EFFECT, A REQUEST FOR REVIEW OF OUR SETTLEMENT CERTIFICATE OF MARCH 11, 1964, WHICH DISALLOWED YOUR CLAIM (JCCO CLAIM NO. 6483, OUR CLAIM TK-773911) FOR $5,247.78 ADDITIONAL FREIGHT CHARGES ON YOUR BILLS NOS. 15,429 "A," 15,441 "A," 15,442 "A," 15,440 "A," AND 15,449 "A.' YOUR CLAIM WAS PRESENTED TO RECOVER AMOUNTS DEDUCTED FROM AMOUNTS OTHERWISE PAYABLE TO YOUR COMPANY BECAUSE OF UNEARNED FREIGHT CHARGES AND THE VALUE OF GOVERNMENT PROPERTY (CAMERAS) LOST FROM A SHIPMENT WHICH YOUR COMPANY TRANSPORTED FROM BROOKLEY AIR FORCE BASE, ALABAMA, TO SYOSSET, NEW YORK, UNDER GOVERNMENT BILL OF LADING B-5499472, DATED SEPTEMBER 17, 1962.

OUR RECORD SHOWS THAT BILL OF LADING B-5499472 WAS ISSUED TO COVER THE TRANSPORTATION OF 125 CASES OF CAMERAS. THE SHIPMENT WAS PICKED UP BY YOUR COMPANY SEPTEMBER 17, 1962, AND WAS DELIVERED BY YOUR LINES TO THE CONSIGNEE, FAIRCHILD CAMERA AND INSTRUMENT CORPORATION, SYOSSET, NEW YORK. DELIVERY WAS ACCOMPLISHED ON TWO SEPARATE DATES; 117 CASES ON SEPTEMBER 20, 1962, AND 7 CASES ON SEPTEMBER 26, 1962. ALTHOUGH THE CONSIGNEE ACKNOWLEDGED THE RECEIPT OF 118 CASES OF CAMERAS IN THE FIRST DELIVERY AND PRESENTED THE CARRIER WITH A CLEAR DELIVERY RECEIPT, IT CHANGED THE ACKNOWLEDGMENT TO COVER ONLY 117 CASES APPROXIMATELY ONE HOUR AFTER DELIVERY, AND NOTIFIED YOU BY TELEPHONE OF THE SHORTAGE OF ONE CAMERA. THE "REPORT OF LOSS, DAMAGE, OR SHRINKAGE" COLUMN ON THE REVERSE SIDE OF THE GOVERNMENT BILL OF LADING CONTAINS THE FOLLOWING STATEMENT:

"TOTAL OF ONLY 124 CASES WERE RECEIVED BY THE CONSIGNEE. RECEIVING DEPARTMENT OF CONSIGNEE INADVERTENTLY ACKNOWLEDGED RECEIPT OF 125 CASES PRIOR TO DETAILED COUNT. DETAILED COUNT REVEALED SHORTAGE OF ONE CASE. THE CARRIER WAS NOTIFIED IMMEDIATELY.' THIS STATEMENT WAS MADE BY THE CONSIGNEE, FAIRCHILD CAMERA AND INSTRUMENT CORPORATION AND IS DATED OCTOBER 8, 1962. THE BILL OF LADING ALSO BEARS THE STATEMENT

"RECEIVED BY THE TRANSPORTATION COMPANY NAMED ABOVE, SUBJECT

TO CONDITIONS NAMED ON THE REVERSE HEREOF, THE PROPERTY

HEREINAFTER DESCRIBED, IN APPARENT GOOD ORDER AND CONDITION

(CONTENTS AND VALUE UNKNOWN), TO BE FORWARDED TO

DESTINATION BY THE SAME COMPANY AND CONNECTING LINES,

THERE TO BE DELIVERED IN LIKE GOOD ORDER AND CONDITION TO

SAID CONSIGNEE.'

AND THE RECORD DOES NOT DISCLOSE THAT ANY EXCEPTIONS WERE TAKEN AS TO THE NUMBER OF CAMERAS RECEIVED AT ORIGIN. THE BILL OF LADING SHOWING "111 CS CAMERAS" AND 14 CS CAMERAS," OR A TOTAL OF 125 CAMERAS, WAS RECEIPTED FOR BY YOUR COMPANY AS INITIAL CARRIER AND CONSTITUTES WEIGHTY AND PRIMA FACIE EVIDENCE OF THE DELIVERY TO YOUR COMPANY OF GOODS IN THE QUANTITY DESCRIBED THEREIN. WHEN COUPLED WITH EVIDENCE THAT YOUR COMPANY, AS DELIVERING CARRIER, RETURNED 124 CASES OF CAMERAS, A LESSER QUANTITY THAN THAT DESCRIBED IN THE BILL OF LADING, THE SHIPPER'S BURDEN OF PROOF OF LOSS HAS BEEN FULLY MET. JOSEPH TOKER CO., INC. V. LEHIGH VALLEY R.CO., 97 A.2D 598, 600 (1953); GALVESTON, HARRISBURG AND SAN ANTONIO RY. CO., V. WALLACE, 223 U.S. 481 (1912).

APPARENTLY, YOUR ONLY BASIS FOR DENYING LIABILITY IS THAT YOU HAVE CLEAR DELIVERY RECEIPTS COVERING THE SHIPMENT. HOWEVER, CONDITION 6 OF THE GOVERNMENT BILL OF LADING PROVIDES THAT IT IS MUTUALLY AGREED BETWEEN THE PARTIES TO THE BILL OF LADING THAT "RECEIPT OF THE SHIPMENT IS MADE SUBJECT TO THE "REPORT OF LOSS, DAMAGE, OR SHRINKAGE" NOTED HEREON" AND ALTHOUGH THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON BILL OF LADING B- 5499472 WAS EXECUTED ON SEPTEMBER 24, 1962, WHICH DATE IS IN CONFLICT WITH YOUR DELIVERY RECEIPTS DATED SEPTEMBER 20 AND 26, 1962, THE REVERSE OF THE BILL OF LADING IS NOTED IN THE REPORT OF LOSS, DAMAGE, OR SHRINKAGE COLUMN TO SHOW THAT ONLY 124 CAMERAS WERE RECEIVED AT DESTINATION. ALSO, THE RECORD INDICATES THAT WITHIN APPROXIMATELY AN HOUR AFTER YOUR TRUCK MAKING THE DELIVERY ON SEPTEMBER 20, 1962, WAS UNLOADED THE CONSIGNEE NOTIFIED YOU BY TELEPHONE OF THE SHORTAGE. AS YOU KNOW, THE PRIMARY PURPOSE OF A RECEIPT IS TO AFFORD A WRITTEN RECORD OF FACTS EXISTING AT THE TIME THE RECEIPT IS EXECUTED, AND AS BETWEEN THE CARRIER AND THE SHIPPER IF THE RECEIPT IS FOUND TO BE ERRONEOUS, IT MAY BE AMENDED TO REFLECT THE CONDITIONS WHICH ACTUALLY EXISTED. THE CLEAR DELIVERY RECEIPT IS THUS NOT CONCLUSIVE BUT IS SUBJECT TO EXPLANATION AND CORRECTION. THE EVIDENCE OF RECORD INDICATES THAT THE DELIVERY WAS MADE TO A SECURED DEFENSE PLANT TO WHICH ENTRANCE CAN BE MADE ONLY THROUGH GUARDED GATES. IT IS REPORTED THAT DURING THE PERIOD BETWEEN THE COMPLETION OF THE DELIVERY AT ABOUT 10:30 A.M., ON SEPTEMBER 20, 1962, AND 11:00 A.M., ON THAT DATE, WHEN THE SHORT DELIVERY WAS DISCOVERED THE PROPERTY WAS UNDER CONTINUOUS SURVEILLANCE, THAT THE CAMERA WAS BULKY AND HEAVY MAKING THE CHANCE OF ITS HAVING BEEN PILFERED AFTER DELIVERY NEGLIGIBLE AND THE ONLY PROBABLE AND REASONABLE INFERENCE IS, AS ADMINISTRATIVELY REPORTED, THAT THE CLEAR DELIVERY RECEIPT WAS ISSUED IN ERROR. WE BELIEVE THAT WITH THE EVIDENCE OF RECORD, IF THE MATTER WERE MADE THE SUBJECT OF SUIT, A COURT MIGHT WELL HOLD THAT A SHORTAGE EXISTED IN THE DELIVERY MADE BY YOUR COMPANY AND THAT YOU ARE LIABLE THEREFOR.

HOWEVER, SINCE THERE IS SOME POSSIBILITY OF A MISCOUNT AT ORIGIN OR DESTINATION, AND ALTHOUGH THE PERTINENT ARMY SHIPPING DOCUMENTS REFLECT THE FACT THAT 125 CAMERAS WERE ACTUALLY LOADED AT ORIGIN, OUR OFFICE WOULD BE DISPOSED TO RECOMMEND TO THE DEPARTMENT OF JUSTICE--- WHICH HAS AUTHORITY TO TAKE FINAL ACTION ON COMPROMISE OFFERS--- A PROPOSAL BY YOUR COMPANY TO SETTLE THE MATTER BY REDUCTION OF YOUR CLAIM TO 50 PERCENT OF THE AMOUNT RECOVERED BY THE GOVERNMENT OR $2,623.89. YOUR PROPOSAL, IF SUBMITTED, WOULD BE REFERRED TO THE ATTORNEY GENERAL WITH OUR RECOMMENDATION FOR ACCEPTANCE. IN THE ABSENCE OF ANY SUCH PROPOSAL BY YOUR COMPANY WE WOULD NOT BE WARRANTED, ON THE BASIS OF THE PRESENT RECORD, IN REVISING OUR SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM FOR THE FULL AMOUNT RECOVERED BY DEDUCTION.