B-158322, JUN. 30, 1966

B-158322, JUN. 30, 1966

TO THE MORGAN DRIVE AWAY, INC.:

SUBJECT: DAMAGE TO TRAILER OF SERGEANT CHOYCE MCDOWELL, $6,085

REFERENCE IS MADE TO THE LETTER DATED JANUARY 11, 1966, MORGAN DRIVE AWAY FILE 10/25 1216-63-58, REQUESTING THAT OUR OFFICE OBTAIN AND REVIEW THE FILE CONCERNING THE ABOVE MATTER. IT APPEARS FROM THE BILL OF LADING (B- 9643091) AND PAYMENT RECORD THAT MOST OF THE TRANSPORTATION WAS ACCOMPLISHED BY USE OF RAILROAD SERVICE. THE ABOVE AMOUNT OF THE DAMAGES, AS COMPUTED BY THE AIR FORCE HAS BEEN DEDUCTED FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. REFERENCE IS MADE ALSO TO YOUR LETTER OF FEBRUARY 25, 1966, CONTAINING AN OFFER TO ASSUME LIABILITY FOR 50 PERCENT OF THE AMOUNTS ASSESSED BY THE ADMINISTRATIVE OFFICE CONCERNED IN COMPROMISE SETTLEMENT OF SIMILAR CLAIMS RELATING TO DAMAGE SUSTAINED BY THE TRAILERS OF SERGEANTS JACK E. SEIDER, JR. AND ROGER L. SLAUGHTER WHILE BEING TRANSPORTED BY YOUR COMPANY. THAT COMPROMISE PROPOSAL HAS BEEN REFERRED TO THE DEPARTMENT OF JUSTICE FOR CONSIDERATION. WE WILL ADVISE AS TO THE DISPOSITION OF THAT MATTER AS SOON AS WE ARE INFORMED OF THE DEPARTMENT'S DECISION. NO DEDUCTIONS HAVE BEEN MADE FROM YOUR COMPANY'S ACCOUNTS TO RECOVER THE AMOUNTS DETERMINED TO BE DUE FOR THE DAMAGE TO THE TWO TRAILERS CONCERNED IN THAT CASE.

WE HAVE EXAMINED THE MCDOWELL FILE AND HAVE CONSIDERED YOUR STATEMENTS AS TO STRUCTURAL DEFECTS IN THE MCDOWELL TRAILER. WE ARE, HOWEVER, UNABLE TO CONCLUDE FROM THE PRESENT RECORD THAT THE ADMINISTRATIVE DETERMINATION THAT YOUR COMPANY IS LEGALLY RESPONSIBLE FOR THE DAMAGE INVOLVED IS INCORRECT. IN THE ABSENCE OF CONVINCING EVIDENCE EXONERATING THE CARRIER FROM LIABILITY WE CANNOT DISTURB THE ADJUSTMENT MADE BY THE AIR FORCE IN ENFORCING THE DETERMINATION OF CARRIER LIABILITY.

IN ADDITION, WE NOTE FROM THE FILE THAT YOUR COMPANY WAS PAID CHARGES OF $1,951.50 FOR THE TRANSPORTATION OF THE MCDOWELL TRAILER. IT HAS BEEN HELD THAT WHERE FREIGHT IS SO BADLY DAMAGED IN TRANSIT THAT IT CANNOT BE DELIVERED IN SPECIE THE FREIGHT CHARGES ARE NOT EARNED. THE WILLDOMINO, 300 F. 5, 21, AND W. A. STACKPOLE MOTOR TRANSPORTATION, INC. V. MALDEN SPINNING AND DYEING CO., 263 F.2D 47. THE PRESENT RECORD INDICATES THAT THE TRAILER HERE INVOLVED WAS SO BADLY DAMAGED AS TO BE UNREPAIRABLE, AND WAS IN FACT SOLD FOR SALVAGE. THE AIR FORCE ALLOWED YOUR COMPANY CREDIT FOR THE AMOUNT RECEIVED AS SALVAGE. UNDER THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT ON THE PRESENT RECORD THE FREIGHT CHARGES WERE NOT EARNED ON THE SHIPMENT. APPROPRIATE COLLECTION ACTION WILL BE TAKEN TO RECOVER THE TRANSPORTATION CHARGES PAID TO YOUR COMPANY IN THE EVENT THEY ARE NOT REFUNDED WITHIN A REASONABLE TIME.