B-154827, JAN. 19, 1965

B-154827, JAN. 19, 1965

TO ARKANSAS-BEST FREIGHT SYSTEM, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 24, 1964, FILE ABFS PRO 9 192342, REQUESTING REVIEW OF OUR SETTLEMENT OF MAY 14, 1964, TK 766358, WHICH DISALLOWED YOUR SUPPLEMENTAL BILL NO. 63-358 FOR $2,216.20 CLAIMED TO BE DUE AS REIMBURSEMENT FOR THE DEDUCTION MADE BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FROM AMOUNTS OTHERWISE DUE YOU. THE DEDUCTED AMOUNT CONSISTED OF UNEARNED FREIGHT CHARGES OF $40.20 AND $2,176 AS THE VALUE OF 32 CARTONS OF ALUMINUM FOIL LOST WHILE BEING TRANSPORTED FROM HUNTER AIR FORCE BASE, GEORGIA, TO REVERE COPPER AND BRASS, INC., NEWPORT, ARKANSAS, UNDER GOVERNMENT BILL OF LADING NO. A-8181502. THE GOODS WERE RECEIVED BY THE HUCKABEE TRANSPORT CORP., THE ORIGIN CARRIER, ON MAY 18, 1961.

THE BASIS OF YOUR REQUEST FOR REVIEW IS THAT THERE ACTUALLY WAS NO SHORTAGE BUT MERELY A MISCOUNT AT DESTINATION. IN SUPPORT OF YOUR CONTENTION YOU RELY ON A LETTER SIGNED BY FIRST LIEUTENANT JOHN S. RISBECK, USAF, TRAFFIC MANAGEMENT OFFICER AT HUNTER AIR FORCE BASE, DATED SEPTEMBER 6, 1962, ADDRESSED TO REVERE COPPER AND BRASS, INC., THE CONSIGNEE, COPY TO HUCKABEE TRANSPORT. THE LETTER IN QUESTION, HOWEVER, REFLECTS THE IMPRESSION OF THE WRITER THAT 32 DOUBLE CARTONS, CONTAINING 2 PACKAGES OF FOIL EACH, AND 32 SINGLE CARTONS, CONTAINING 1 PACKAGE EACH, WERE DELIVERED AT DESTINATION, AND THAT THE ALLEGED SHORTAGE MAY HAVE BEEN DUE TO COUNTING THE 32 DOUBLE CARTONS AS SINGLE CARTONS.

THE "RECEIVING SLIP" OF REVERE COPPER AND BRASS, INC., DATED 5-29 61, SIGNED BY LLOYD WINNINGHAM, REC. CLERK, SHOWED THAT OF THE 500 CARTONS SHIPPED ONLY 468 WERE RECEIVED, MAKING A SHORTAGE OF 32 CARTONS. THERE COULD NOT HAVE BEEN A MISCOUNT OF SINGLE AND DOUBLE CARTONS AS CLAIMED BECAUSE THIS RECEIVING SLIP BREAKS DOWN THE CARTONS RECEIVED INTO "OUTER" AND "INNER" CARTONS. THE SLIP SHOWS THAT 101 BOXES (404 SINGLE CARTONS), 19 OUTER CARTONS (38 SINGLE CARTONS), AND 26 INNER CARTONS WERE RECEIVED, THUS ELIMINATING ANY QUESTION OF CONFUSION OVER THE SINGLE AND DOUBLE CARTONS IN THE COUNT AT DESTINATION AND SUBSTANTIATING THE SHORTAGE OF 32 CARTONS AT DESTINATION.

YOU ALSO CONTEND THAT IT WAS THE FEELING OF THE ORIGIN CARRIER THAT THE MERCHANDISE WAS IMPROPERLY COUNTED AT THE TIME OF PICKUP AND THE CARRIERS SHOULD NOT BE RESPONSIBLE FOR THE GOVERNMENT'S ERROR. YOU FURNISH A COPY OF A STATEMENT PREPARED BY YOUR GENERAL CLAIM AGENT WHICH GOES INTO DETAIL ON THIS POINT. IT IS STATED THAT WHEN THE SEALED VEHICLE WAS AT THE ORIGIN CARRIER'S TERMINAL IN SAVANNAH, GEORGIA, TWO REPRESENTATIVES OF HUNTER AIR FORCE BASE, THE CONSIGNOR, IN ORDER TO SETTLE A QUESTION CONCERNING THE COUNT OF THE BOXES THAT HAD BEEN LOADED ON HUCKABEE TRANSPORT'S TRAILER AT HUNTER, HAD THE SEALED TRAILER OPENED AND CHECKED THE COUNT AGAINST THAT SHOWN ON THE GOVERNMENT BILL OF LADING. THE CONSIGNOR IS SAID TO HAVE ADVISED THE CARRIER THAT THE COUNT ON THE BILL OF LADING WAS INCORRECT, AND THAT THE TRAILER WAS ACTUALLY LOADED WITH 101 BOXES AND 96 CARTONS OF FOIL, CONTAINING A TOTAL OF 500 PACKAGES. THE BILL OF LADING AND THE SHIPPING ORDER COPIES IN THE POSSESSION OF HUCKABEE TRANSPORT WERE CORRECTED BY TYPEWRITER.

UNDER THESE CIRCUMSTANCES THE ORIGINAL CARRIER CANNOT CLAIM IGNORANCE OF WHAT WAS LOADED IN THE INVOLVED TRAILER, SINCE IT HAD THE OPPORTUNITY TO CHECK, AND SHOULD HAVE CHECKED, THE COUNT WITH THE HUNTER AIR FORCE BASE REPRESENTATIVES. APPARENTLY HUCKABEE WAS SATISFIED THAT THE COUNT WAS CORRECT. THE CORRECTED BILL OF LADING, WHEN SIGNED BY HUCKABEE TRANSPORT, BECAME A RECEIPT FOR THE 500 PACKAGES OF FOIL, SINCE A BILL OF LADING IS A RECEIPT, AS WELL AS THE CONTRACT OF CARRIAGE. PENNSYLVANIA RAILROAD COMPANY V. GREENE, 173 F.SUPP. 657 (1959). IT SHOULD ALSO BE NOTED THAT T.I.M.E. NOTED A SHORTAGE WHEN TRANSFER OF THE LOAD WAS MADE TO IT AT ATLANTA, GEORGIA.

THE RECORD THEREFORE CONTAINS EVIDENCE THAT 500 CARTONS OF FOIL WERE DELIVERED TO HUCKABEE TRANSPORT AT ITS TERMINAL AT SAVANNAH, GEORGIA, AND THAT ONLY 468 CARTONS WERE DELIVERED AT DESTINATION. ACCORDINGLY, IN THE ABSENCE OF DEFINITE PROOF TO SUPPORT THE ALLEGATION THAT THERE WAS A MISCOUNT AT DESTINATION, OR TO OTHERWISE ESTABLISH THAT THERE WAS NO SHORTAGE, THE SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.