B-160108, APR. 20, 1967

B-160108, APR. 20, 1967

TO TRANSAMERICAN FREIGHT LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1966, REGARDING THE STATUS OF YOUR CLAIM NO. 7-66523, BY WHICH YOU SEEK RECOVERY OF $5,267.71 DEDUCTED FROM AMOUNTS OTHERWISE DUE FOR CERTAIN TRANSPORTATION SERVICES. THE DEDUCTION WAS MADE BY THE U.S. ARMY FINANCE OFFICE TO COVER THE VALUE OF ONE CARTON, DESCRIBED AS "I/C ENGINE PARTS NOI STEEL," LOST FROM A LESS TRUCKLOAD SHIPMENT OF MISCELLANEOUS FREIGHT TRANSPORTED FROM TINKER AIR FORCE BASE, OKLAHOMA, TO MIDDLETON AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA. GOVERNMENT BILL OF LADING B-9478825 WAS ISSUED TO COVER THE INVOLVED TRANSPORTATION SERVICE.

THE BILL OF LADING SHOWS THAT 67 PIECES OF MILITARY PROPERTY WERE TENDERED TO AND RECEIVED BY YOUR DRIVER ON SEPTEMBER 4, 1963. EXCEPTION WAS TAKEN AS TO THE NUMBER OF PIECES RECEIVED. WHEN DELIVERY WAS MADE AT OLMSTED AIR FORCE BASE ON SEPTEMBER 16, 1963, YOUR DELIVERY RECEIPT, PRO. NO. 3144412, WAS MARKED: "64 REC-D 3 SHORT.' INVESTIGATION SHOWED THAT THE MISSING PIECES WERE THREE CARTONS OF ENGINE PARTS LISTED ON PAGE 2 OF THE BILL OF LADING AS FOLLOWS: S-T 200930090186, 34 POUNDS; 200932314864, 47 POUNDS AND 200932324773, 70 POUNDS.

ACCORDING TO YOUR STATEMENT, THE SHIPMENT IN QUESTION WAS LOADED INTO A SEMI-TRAILER VAN AT TINKER AIR FORCE BASE AND WAS ROUTED THROUGH YOUR OKLAHOMA CITY TERMINAL TO YOUR MASPETH, LONG ISLAND, TERMINAL; THE SHIPMENT WITH THE REPORTED SHORTAGE WAS UNLOADED AT PHILADELPHIA. WHILE THE RECORD IS NOT ENTIRELY CLEAR AS TO WHO PERFORMED THE TRANSPORTATION FROM PHILADELPHIA TO OLMSTED AIR FORCE BASE, IT SEEMS THAT DELIVERY WAS MADE BY THE CENTRAL STORAGE AND TRANSFER COMPANY HARRISBURG, PENNSYLVANIA, ALTHOUGH THE CONSIGNEE'S CERTIFICATE OF DELIVERY IN THE GOVERNMENT BILL OF LADING SHOWS YOUR LINE AS DELIVERING CARRIER.

UPON UNLOADING THE SHIPMENT DESTINED TO OLMSTED AIR FORCE BASE,YOUR TRUCK PROCEEDED TO YOUR LONG ISLAND TERMINAL, WHERE THE TWO CARTONS WEIGHING 34 POUNDS AND 47 POUNDS WERE FOUND AND SENT TO THEIR PROPER DESTINATION. THE THIRD CARTON, WEIGHING 70 POUNDS, WAS NOT LOCATED AND WAS NOT DELIVERED AT OLMSTED AIR FORCE BASE. AFTER EFFORTS TO TRACE THE CARTON WERE UNAVAILING, THE REVERSE SIDE OF BILL OF LADING NO. B-9478825 WAS NOTED TO SHOW THAT THE SHIPMENT WAS DELIVERED WITHOUT THE 70-POUND CARTON. SUBSEQUENT SURVEY SHOWED THAT THE PACKAGE CONTAINED 135 BLADES, TURBINE, ROTOR, NICKEL ALLOY, HAVING A VALUE OF $5,265. THIS SUM, PLUS $2.71 UNEARNED FREIGHT CHARGES, WAS SUBSEQUENTLY RECOVERED BY DEDUCTION IN JULY AND AUGUST 1964.

ON THE BASIS OF THE FACTS IN OUR RECORD, IT IS ESTABLISHED THAT YOU, AS THE ORIGIN CARRIER, ACKNOWLEDGED RECEIPT OF 67 PIECES (OR CARTONS) AT TINKER AIR FORCE BASE, AND YOU, OR YOUR AGENT, CENTRAL STORAGE AND TRANSFER COMPANY, DELIVERED 64 PIECES, WITH TWO MORE PIECES BEING DELIVERED AT A LATER DATE, MAKING A TOTAL OF 66 PIECES. THIS IS ONE PIECE LESS THAN RECEIPTED FOR AT POINT OF ORIGIN.

THE GOVERNMENT BILL OF LADING SHOWS THAT THE ORIGIN CARRIER, TRANSAMERICAN FREIGHT LINES, INC., ACKNOWLEDGED RECEIPT OF 67 SPECIFICALLY DESCRIBED PIECES OF FREIGHT TO BE FORWARDED TO OLMSTED AIR FORCE BASE. ALSO, THE NOTATION ON THE REVERSE OF THE BILL OF LADING UNDER REPORT OF LOSS, DAMAGE, OR SHRINKAGE SHOWS THAT ONLY 66 PIECES OF SUCH FREIGHT WERE DELIVERED TO THE CONSIGNEE, THERE BEING A SHORTAGE OF ONE PIECE.

SUCH NOTATIONS CONSTITUTE EVIDENCE OF ACTUAL DELIVERY TO THE CARRIER OF GOODS IN THE QUANTITY SPECIFIED AND OF A LOSS FOR WHICH THE CARRIER IS RESPONSIBLE. UNDER APPLICABLE 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 ONE MISSING PIECE WAS NOT SURRENDERED TO YOU FOR CARRIAGE OR THAT THE LOSS WAS BROUGHT ABOUT BY ONE OF THE EXCEPTIONS TO THE RULE OF 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 A2D. 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. THAT RULE AFFORDS THE SHIPPER STRONG PROTECTION, AND IS TO BE OVERCOME ONLY BY CONVINCING PROOF OF CONDITIONS EXCUSING THE CARRIER. KUPERMANN V. UNITED STATES, 227 F.2D 348.

YOUR ATTEMPT TO REBUT THE PRIMA FACIE CASE IS LIMITED TO AN OPINION, OR AN ASSUMPTION, THAT THE PIECE (OR CARTON) STILL MISSING WAS NEVER LOADED INTO YOUR TRAILER AT TINKER AIR FORCE BASE. TO SUSTAIN THIS ASSUMPTION YOU STATE THE TRAILER WAS LOADED BY TINKER AIR FORCE BASE PERSONNEL; THAT THE SHIPMENT WAS NOT COUNTED BY YOUR PERSONNEL AT THAT POINT; THAT THE SHIPMENT WAS NOT TOUCHED AT YOUR OKLAHOMA CITY TERMINAL, AND THAT IT WAS NOT COUNTED UNTIL THE VEHICLE REACHED PHILADELPHIA, WHERE IT CHECKED THREE PIECES SHORT. TWO OF THE THREE PIECES SHORT AT PHILADELPHIA WERE FOUND AT YOUR MASPETH TERMINAL, BUT THE REMAINING PIECE, THE 70-POUND CARTON, FAILED TO ,SHOW UP" IN YOUR SYSTEM. YOU CONCLUDE, THEREFORE, THAT THE MISSING PIECE WAS NOT LOADED INTO THE TRAILER AT TINKER AIR FORCE BASE.

HOWEVER, SUCH CIRCUMSTANCES CANNOT BE ACCEPTED AS REBUTTING THE PRIMA FACIE CASE MADE BY THE BILL OF LADING RECORD. FOR EXAMPLE, YOU STATE THE SHIPMENT WAS LOADED IN YOUR TRAILER AT TINKER AIR FORCE BASE AND WAS LEFT IN THE SAME TRAILER AT YOUR OKLAHOMA CITY TERMINAL. THE SHIPMENT IN QUESTION CONSISTED OF 67 PIECES WEIGHING 2,272 POUNDS, AND THERE IS NOTHING IN THE RECORD TO SUGGEST THAT THIS WAS THE ONLY SHIPMENT LOADED INTO THE TRAILER AT TINKER AIR FORCE BASE. NEITHER IS THERE ANY INFORMATION TO SHOW THE NUMBER OF SHIPMENTS OR THE NUMBER OF PIECES IN THE TRAILER WHEN IT DEPARTED FROM YOUR OKLAHOMA CITY TERMINAL. ALSO, NO INFORMATION IS AVAILABLE AS TO THE NUMBER OF PIECES UNLOADED AT PHILADELPHIA OR AS TO WHETHER THIS WAS THE ONLY SHIPMENT TENDERED TO THE AGENT FROM THIS VEHICLE. YOU DO NOT SHOW JUST WHAT FREIGHT WAS IN THE VEHICLE WHEN IT REACHED YOUR MASPETH TERMINAL.

IN THESE CIRCUMSTANCES IT IS JUST AS POSSIBLE THAT THE CARTON WAS DELIVERED TO SOME OTHER CONNECTING CARRIER OR CONSIGNEE, AS THAT IT WAS NOT LOADED INTO THE VEHICLE AT TINKER AIR FORCE BASE. MOREOVER, THE ADMINISTRATIVE REPORT TO US STATES THAT A PHYSICAL INVENTORY OF THE STORAGE SITES FAILED TO DISCLOSE THE WHEREABOUTS OF THE MISSING CARTON. IN ANY EVENT, IT SEEMS CLEAR THAT THE CARTON WAS INCLUDED IN THE SHIPMENT OF 67 PIECES TENDERED TO AND RECEIVED BY YOUR COMPANY ON BILL OF LADING NO. B-9478825, AND YOUR EXPLANATION DOES NOT REBUT THE LEGAL PRESUMPTION OF CARRIER LIABILITY FOR THE LOSS.