B-159927, DEC. 23, 1966

B-159927: Dec 23, 1966

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322.96 WHICH AMOUNT REPORTEDLY WAS RECOVERED BY ADMINISTRATIVE DEDUCTION TO REIMBURSE THE GOVERNMENT FOR THE LOSS OF TWO PIECES OF FREIGHT DESCRIBED ON GOVERNMENT BILL OF LADING B -9038371. DAMAGE OR SHRINKAGE SHOWS THAT ONLY 21 PIECES OF SUCH FREIGHT WERE DELIVERED TO THE CONSIGNEE. SUCH NOTATIONS CONSTITUTE WEIGHTY EVIDENCE OF ACTUAL DELIVERY TO THE CARRIER OF GOODS IN THE QUANTITY SPECIFIED AND THAT A LESSER QUANTITY WAS DELIVERED AT DESTINATION. THUS THE BURDEN IS PLACED ON YOU TO AFFIRMATIVELY PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE TWO MISSING PIECES WERE NOT SURRENDERED TO BRASWELL FOR CARRIAGE OR THAT THE LOSS WAS PROXIMATELY BROUGHT ABOUT BY ONE OF THE EXCEPTIONS TO THE RULE OF ABSOLUTE CARRIER LIABILITY SUCH AS ACTS OF GOD.

B-159927, DEC. 23, 1966

TO MILNE TRUCK LINES INC.:

BY YOUR LETTER OF OCTOBER 26, 1966, YOU REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF $5,322.96 WHICH AMOUNT REPORTEDLY WAS RECOVERED BY ADMINISTRATIVE DEDUCTION TO REIMBURSE THE GOVERNMENT FOR THE LOSS OF TWO PIECES OF FREIGHT DESCRIBED ON GOVERNMENT BILL OF LADING B -9038371, DATED APRIL 27, 1964, AS PART OF A SHIPMENT FROM TINKER AIR FORCE BASE, OKLAHOMA, TO OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, OGDEN, UTAH.

THE GOVERNMENT BILL OF LADING SHOWS THAT THE ORIGIN CARRIER, BRASWELL FREIGHT LINES, INC., ACKNOWLEDGED RECEIPT OF 23 SPECIFICALLY DESCRIBED PIECES OF FREIGHT FOR FORWARDING TO HILL AIR FORCE BASE. ALSO, THE NOTATION ON THE REVERSE OF THE BILL OF LADING UNDER REPORT OF LOSS, DAMAGE OR SHRINKAGE SHOWS THAT ONLY 21 PIECES OF SUCH FREIGHT WERE DELIVERED TO THE CONSIGNEE, THERE BEING A SHORTAGE OF TWO PIECES. SUCH NOTATIONS CONSTITUTE WEIGHTY EVIDENCE OF ACTUAL DELIVERY TO THE CARRIER OF GOODS IN THE QUANTITY SPECIFIED AND THAT A LESSER QUANTITY WAS DELIVERED AT DESTINATION. UNDER THE APPLICABLE FEDERAL LAW, THE SHIPPER ESTABLISHES A PRIMA FACIE CASE OF CARRIER LIABILITY WHERE HE SHOWS DELIVERY IN GOOD CONDITION, ARRIVAL IN A DAMAGED CONDITION OR IN A REDUCED QUANTITY AND THE AMOUNT OF DAMAGES. MISSOURI PACIFIC RAILROAD CO. V. ELMORE AND STAHL, 377 U.S. 134. THUS THE BURDEN IS PLACED ON YOU TO AFFIRMATIVELY PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE TWO MISSING PIECES WERE NOT SURRENDERED TO BRASWELL FOR CARRIAGE OR THAT THE LOSS WAS PROXIMATELY BROUGHT ABOUT BY ONE OF THE EXCEPTIONS TO THE RULE OF ABSOLUTE CARRIER LIABILITY SUCH AS ACTS OF GOD, ACTS OF PUBLIC ENEMY, INHERENT VICE OR DEFAULT OF THE SHIPPER. GULF, C.ANDS.F.RY.CO. V. GALBRAITH, 39 S.W.2D 91; SILVER LINING V. SHEIN, 117 A.2D 182; MISSOURI PACIFIC RAILROAD CO. V. TRAUTMANN BROTHERS, 301 S.W.2D 240; AND LOUISIANA SOUTHERN RY.CO. V. ANDERSON, CLAYTON AND CO., 191 F.2D 784. AND THE RULE STATED IS A SUBSTANTIAL RIGHT OF THE SHIPPER AND IS TO BE OVERCOME ONLY BY CONVINCING PROOF TO THE CONTRARY. KUPFERMANN V. UNITED STATES, 227 F.2D 348.

YOU SEEK TO REBUT THIS PRIMA FACIE EVIDENCE BY SHOWING THAT YOU HAD IN YOUR POSSESSION THREE PIECES OF SIMILAR FREIGHT (HAVING APPROXIMATELY THE SAME VALUE AS THE TWO PIECES FOR WHICH YOU HAVE BEEN CHARGED) CONSTITUTING A PORTION OF A SHIPMENT THAT MOVED TWO DAYS LATER BY TRANSAMERICAN FREIGHT LINES UNDER GOVERNMENT BILL OF LADING NO. B-9038551 FROM TINKER AIR FORCE BASE TO OLMSTEAD AIR FORCE BASE, PENNSYLVANIA, AND WHICH THREE PIECES WERE FORWARDED "FREE ASTRAY" TO DESTINATION TO MAKE UP THE SHORTAGE UNDER THAT BILL OF LADING. BECAUSE YOU HAVE DETERMINED THAT BRASWELL HAS NO CONNECTION WITH TRANSAMERICAN AND THERE ARE NO INTERLINE POINTS WHERE THE FREIGHT COULD HAVE BECOME MIXED, YOU INDICATE YOU BELIEVE THAT BRASWELL MUST HAVE PICKED UP THESE THREE PIECES IN LIEU OF THE TWO PIECES THAT ARE LOST. IF, AS YOU SUGGEST, BRASWELL'S AGENT SIGNED FOR 23 PIECES WHEN, IN FACT, HE PICKED UP 24 PIECES, IT IS JUST AS REASONABLE TO BELIEVE THAT HE HAD 26 PIECES WHEN HE SIGNED FOR 23, THE THREE PIECES BEING IN ADDITION TO ALL OF THE FREIGHT DESCRIBED ON THE BILL OF LADING. IT DOES NOT APPEAR THAT EVIDENCE OF OTHER FREIGHT IN YOUR POSSESSION AT THE TIME YOU CARRIED THE LCL SHIPMENT UNDER GOVERNMENT BILL OF LADING NO. B-9038371 WOULD REBUT THE PRIMA FACIE RECORD ESTABLISHED BY THE BILL OF LADING. SEE MISSOURI P.R.CO. V. ELMORE AND STAHL, CITED ABOVE, AND YECKES EICHENBAUM, INC. V. TEXAS MEXICAN RY.CO., 263 F.2D 791 (1959), CERTIORARI DENIED 361 U.S. 827. AND IT IS NOT INCUMBENT UPON THE GOVERNMENT TO EXPLAIN HOW OR WHEN YOU CAME INTO POSSESSION OF THE THREE PIECES INTENDED FOR OLMSTEAD AIR FORCE BASE.

MOREOVER, THE GOVERNMENT DOES NOT RELY SOLELY ON THE BILL OF LADING RECORD. YOUR FREIGHT BILL NO. 1-14105 ACKNOWLEDGES THAT TWO PIECES WERE SHORT ON DELIVERY, AND THE DEPARTMENT OF THE AIR FORCE HAS FURNISHED AFFIDAVITS OF TWO WITNESSES TO THE EFFECT THAT THEY ASSISTED IN LOADING THE TWO CARTONS ON BRASWELL'S TRUCK AND AN AFFIDAVIT BY THE CHECKER FOREMAN AT DESTINATION WHO NOTED THE SHORTAGE. ALSO, AN EXTENSIVE SEARCH MADE BY THE DEPARTMENT OF THE AIR FORCE FAILED TO LOCATE IN THE GOVERNMENT'S CUSTODY THE TWO PIECES OF FREIGHT THAT CONSTITUTE THE SHORTAGE.

IN YOUR LETTER OF MARCH 10, 1966, YOU INDICATE THAT MOST OF THIS FREIGHT IS HANDLED ON A PIECE COUNT BASIS. IF BRASWELL'S AGENT ELECTED TO ACCEPT THE SHIPMENT WITHOUT COMPARING THE DESCRIPTION OF EACH PIECE WITH THAT SHOWN ON THE SHIPPING DOCUMENTS, THUS ACKNOWLEDGING RECEIPT OF THE QUANTITY OF GOODS DESCRIBED THEREON AND YOUR AGENT DID LIKEWISE AT PHEONIX WHEN HE ACCEPTED THE FREIGHT FROM BRASWELL, THE ONLY WAY YOU CAN AVOID THE EFFECT OF THIS ACTION IS TO PROVE AFFIRMATIVELY THAT THE TWO PIECES FOR WHICH YOU HAVE BEEN CHARGED WERE NOT IN FACT DELIVERED TO BRASWELL OR THAT THE LOSS WAS OCCASIONED BY ONE OF THE EXCEPTIONS TO THE RULE OF ABSOLUTE CARRIER LIABILITY. SEE YECKES-EICHENBAUM, INC. V. TEXAS MEXICAN RY.CO., SUPRA. COMPARE TEXAS AND PAC.RY.CO. V. EMPACADORA DE CIUDAD JUAREZ, 309 S.W.2D 926.

THE DISALLOWANCE OF YOUR CLAIM IS ACCORDINGLY SUSTAINED, AND UNLESS YOU CAN FURNISH SUBSTANTIAL EVIDENCE AS INDICATED ABOVE, FURTHER APPEAL ON AN ADMINISTRATIVE LEVEL WOULD APPEAR TO SERVE NO USEFUL PURPOSE. THE SUSTAINING OF THE DISALLOWANCE DOES NOT, OF COURSE, PRECLUDE YOUR SEEKING RECOVERY OF THE DEDUCTION THROUGH COURT ACTION.