B-158346, JULY 20, 1966, 46 COMP. GEN. 51

B-158346: Jul 20, 1966

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THE WRAPPING USED IS IMMATERIAL. THE INSPECTION REPORT INDICATING THAT THE TIRES WERE DAMAGED "THROUGH VIBRATION FROM PROTRUDING NAILS. INDICATES THAT THE TIRES WERE WRAPPED IN A SINGLE THICKNESS OF "KRINKLE" OR "KRAFT" PAPER. THAT DURING THE UNLOADING AT DESTINATION IT WAS NOTED THAT ON MANY TIRES THE "KRINKLE" OR "KRAFT" PAPER APPEARED TO BE SCUFFED. EXPLAINED THAT YOUR LIABILITY FOR THE DAMAGE TO THIS SHIPMENT IS MEASURED BY SECTION 20/11) OF THE INTERSTATE COMMERCE ACT. THAT UNDER THAT STATUTE A COMMON CARRIER IS LIABLE. FOR THE FULL ACTUAL LOSS SUSTAINED BY THE SHIPPER UNLESS IT AFFIRMATIVELY SHOWS THAT THE DAMAGE WAS CAUSED BY ONE OF THE EXCEPTIONS TO ITS LIABILITY AS A COMMON CARRIER.

B-158346, JULY 20, 1966, 46 COMP. GEN. 51

PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. - CARRIER'S LIABILITY - BURDEN OF PROOF A COMMON CARRIER HELD LIABLE FOR DAMAGES TO A SHIPMENT OF TIRES WITHOUT PROOF OF NEGLIGENCE PURSUANT TO 49 U.S.C.20/11), HAVING FAILED TO MEET THE BURDEN OF PROOF THAT THE DAMAGES RESULTED SOLELY FROM INADEQUATE PACKAGING BY THE SHIPPER MAY NOT BE RELIEVED OF LIABILITY, THE TARIFF PROVIDING FOR THE ACCEPTANCE OF TIRES FOR TRANSPORTATION "LOOSE OR IN PACKAGES", THE WRAPPING USED IS IMMATERIAL, AND THE INSPECTION REPORT INDICATING THAT THE TIRES WERE DAMAGED "THROUGH VIBRATION FROM PROTRUDING NAILS, BOLTS AND/OR ROUGH HANDLING" EN ROUTE, ESTABLISHING A PRIMA FACIE CASE OF CARRIER LIABILITY, CLAIM FOR THE AMOUNT ADMINISTRATIVELY DEDUCTED TO REIMBURSE THE GOVERNMENT FOR THE DAMAGES MAY NOT BE REPAID TO THE CARRIER.

TO THE VICTORVILLE-BARSTOW TRUCK LINE, JULY 20, 1966:

WE REFER AGAIN TO YOUR LETTER OF MAY 4, 1966, YOUR FILE REFERENCE VB CLAIM 3841, IN WHICH YOU REQUEST REVIEW OF THE DISALLOWANCE BY OUR TRANSPORTATION DIVISION OF YOUR CLAIM FOR $451.70. THE CLAIM REPRESENTS AN AMOUNT ADMINISTRATIVELY DEDUCTED BY THE DEPARTMENT OF THE AIR FORCE TO REIMBURSE THE GOVERNMENT FOR DAMAGES TO A SHIPMENT TRANSPORTED FROM AKRON, OHIO, TO EDWARDS AIR FORCE BASE, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. B-5570523 DATED DECEMBER 17, 1962.

THE BILL OF LADING SHOWS THAT THE SHIPMENT, MARKED FOR "B-70 PROTOTYPE FLIGHT TEST SUPPORT", CONSISTED OF 56 PNEUMATIC AIRCRAFT TIRES, EACH WEIGHING 158 POUNDS. THE RECORD, INCLUDING AN INSPECTION REPORT OF LOSS OR DAMAGE DISCOVERED AFTER DELIVERY, DATED JANUARY 4, 1963, AND SIGNED BY REPRESENTATIVES OF THE CONSIGNEE AND OF YOUR COMPANY, INDICATES THAT THE TIRES WERE WRAPPED IN A SINGLE THICKNESS OF "KRINKLE" OR "KRAFT" PAPER; THAT DURING THE UNLOADING AT DESTINATION IT WAS NOTED THAT ON MANY TIRES THE "KRINKLE" OR "KRAFT" PAPER APPEARED TO BE SCUFFED; AND THAT AN ADDITIONAL INSPECTION DISCLOSED THAT THE RUBBER ON 5 OF THE 56 TIRES HAD BEEN SCUFFED, DAMAGED, TORN OR CUT, AND THAT 1 OF THE 5 TIRES HAD A NAIL HOLE IN ITS SIDE.

OUR TRANSPORTATION DIVISION IN DISALLOWING THE CLAIM IN A LETTER DATED APRIL 6, 1966, TO YOU, EXPLAINED THAT YOUR LIABILITY FOR THE DAMAGE TO THIS SHIPMENT IS MEASURED BY SECTION 20/11) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20/11), AND THAT UNDER THAT STATUTE A COMMON CARRIER IS LIABLE, WITHOUT PROOF OF NEGLIGENCE, FOR THE FULL ACTUAL LOSS SUSTAINED BY THE SHIPPER UNLESS IT AFFIRMATIVELY SHOWS THAT THE DAMAGE WAS CAUSED BY ONE OF THE EXCEPTIONS TO ITS LIABILITY AS A COMMON CARRIER. IT ALSO EXPLAINED THAT IN THIS CASE THE EVIDENCE OF RECORD ESTABLISHED FOR THE SHIPPER A PRIMA FACIE CASE OF CARRIER LIABILITY AND THAT SINCE YOUR CLAIM WAS BASED ON ONE OF THE EXCEPTIONS TO YOUR LIABILITY AS A COMMON CARRIER-- -THE ACT OF THE SHIPPER IN ALLEGEDLY IMPROPERLY PACKAGING THE GOODS FOR SHIPMENT---THE BURDEN WAS ON YOU TO AFFIRMATIVELY SHOW THAT THE DAMAGES RESULTED SOLELY FROM THAT EXCEPTED CAUSE. MISSOURI PACIFIC RAILROAD CO. V. ELMORE AND STAHL, 337 U.S. 134 (1964); GALVESTON H. AND S. A. RY. CO. V. WALLACE, 223 U.S. 481, 492 (1912); LEHIGH VALLEY R. CO. V. STATE OF RUSSIA, 21 F. 2D 396, 405 (1927); NORTHWESTERN MARBLE AND TILE CO. V. WILLIAMS, 151 N.W. 419, 420 (1915). UPON EXAMINATION OF THE EVIDENCE OF RECORD, THE TRANSPORTATION DIVISION CONCLUDED THAT YOU HAD NOT MET THIS BURDEN. ACCORDINGLY, IT DISALLOWED YOUR CLAIM.

IN YOUR LETTER REQUESTING REVIEW, YOU STATE THAT THE TRANSPORTATION DIVISION DID NOT FULLY CONSIDER THE OPINIONS IN AN INSPECTION REPORT AND LETTER PREPARED BY MR. JACK STOUT, A REPRESENTATIVE OF THE FREIGHT LOSS AND DAMAGE PREVENTION BUREAU OF THE CALIFORNIA TRUCKING ASSOCIATION. THE LETTER, DATED AUGUST 4, 1964, AND THE INSPECTION REPORT, DATED MARCH 12, 1963, SET FORTH THE REPRESENTATIVE'S OPINION THAT THE SINGLE WRAPPING OF "KRAFT" OR "KRINKLE" PAPER---SAID BY MR. STOUT TO BE THE METHOD USED IN WRAPPING ORDINARY AUTOMOBILE TIRES--- WAS ,TOTALLY INADEQUATE" FOR TIRES WHICH WERE DESIGNED FOR USE ON THE EXPERIMENTAL B-70 AIRCRAFT, AND THAT THE DAMAGE TO THE TIRES WAS A DIRECT RESULT OF THE INADEQUATE PACKAGING USED BY THE SHIPPER.

IT SEEMS TO US THAT IT IS IMMATERIAL WHETHER THE WRAPPING USED WAS INADEQUATE FOR THESE TIRES SINCE, AS WAS POINTED OUT IN THE TRANSPORTATION DIVISION'S LETTER, THE TIRES APPARENTLY COULD HAVE BEEN SHIPPED WRAPPED OR UNWRAPPED BECAUSE THE COMMODITY DESCRIPTION IN THE APPLICABLE TARIFF ITEM PROVIDES THAT THE TIRES WOULD BE ACCEPTED FOR TRANSPORTATION "LOOSE OR IN PACKAGES;, FURTHERMORE, MR. STOUT'S OPINION THAT ALL DAMAGE "STEMMED FROM NORMAL VIBRATION AND RUBBING OF THE TIRES AGAINST THE SIDE OF THE TRAILER" IS IN CONTRADICTION TO THE INSPECTION REPORT DATED JANUARY 4, 1963, REFERRED TO ABOVE, SIGNED BY BOTH THE CONSIGNEE AND YOUR INSPECTOR, WHICH INDICATES THAT THE DAMAGES WERE CAUSED BY THE TIRES BEING CARRIED IN AN UPRIGHT POSITION AND THAT FIVE OF THEM WERE DAMAGED "THROUGH VIBRATION FROM PROTRUDING NAILS, BOLTS AND/OR ROUGH HANDLING" SOMEWHERE EN ROUTE.

IN THESE CIRCUMSTANCES, AND AFTER GIVING CAREFUL CONSIDERATION TO THE OPINIONS EXPRESSED BY MR. STOUT, WE MUST AGREE WITH OUR TRANSPORTATION DIVISION'S CONCLUSION THAT THE EVIDENCE IN THE RECORD IS SUFFICIENT TO JUSTIFY THE CONCLUSION THAT YOUR COMPANY HAS NOT MET ITS BURDEN OF ESTABLISHING THAT THE DAMAGE TO THE PROPERTY RESULTED SOLELY FROM THE ALLEGED IMPROPER PACKAGING BY THE SHIPPER.