B-161226, SEP. 15, 1967

B-161226: Sep 15, 1967

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A CARRIER THAT RECEIVED A REPARABLE TUBE FOR TRANSPORTATION AND DELIVERED THE TUBE BROKEN BEYOND REPAIR HAS BURDEN OF SHOWING THAT THE DAMAGE WAS RESULT OF ONE OF FIVE SPECIFIC CAUSES IN ELMORE AND STAHL CASE (377 U.S. 134) TO BE RELIEVED OF LIABILITY. TO INTERSTATE SYSTEMS: REFERENCE IS MADE TO YOUR CLAIM NO. 48768-4 FOR REFUND OF $307.86 DEDUCTED FROM YOUR ACCOUNT BY THE AIR FORCE AS THE VALUE OF A DEWAR VACUUM TUBE. THE SHIPMENT WAS DELIVERED TO H.S. THERE BEING NO EXTERNAL SIGNS OF DAMAGE TO THE WOODEN BOX IN WHICH THE TUBE WAS PACKED. A CLEAN DELIVERY RECEIPT WAS THEREFORE SIGNED BY THE CONSIGNEE. WHEN THE BOX WAS OPENED THE GLASS PORTION OF THE TUBE WAS FOUND TO BE BROKEN BEYOND REPAIR.

B-161226, SEP. 15, 1967

PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. IN TRANSIT DECISION TO INTERSTATE SYSTEMS FOR VALVE OF A DEWAR VACUUM TUBE DAMAGED BEYOND REPAIR WHILE IN TRANSIT UNDER GOVT. BILL OF LADING FOR AIR FORCE. A CARRIER THAT RECEIVED A REPARABLE TUBE FOR TRANSPORTATION AND DELIVERED THE TUBE BROKEN BEYOND REPAIR HAS BURDEN OF SHOWING THAT THE DAMAGE WAS RESULT OF ONE OF FIVE SPECIFIC CAUSES IN ELMORE AND STAHL CASE (377 U.S. 134) TO BE RELIEVED OF LIABILITY. HOWEVER BECAUSE OF SOME DOUBT AS TO CARRIER LIABILITY IN CASES OF CONCEALED DAMAGE, PROPOSAL TO ACCEPT 50 PERCENT OF DAMAGES MAY BE ACCEPTED.

TO INTERSTATE SYSTEMS:

REFERENCE IS MADE TO YOUR CLAIM NO. 48768-4 FOR REFUND OF $307.86 DEDUCTED FROM YOUR ACCOUNT BY THE AIR FORCE AS THE VALUE OF A DEWAR VACUUM TUBE, DAMAGED BEYOND REPAIR WHILE IN TRANSIT FROM L. G. HANSCOM FIELD, BEDFORD, MASSACHUSETTS, TO THE H.S. MARTIN COMPANY, EVANSTON, ILLINOIS, ON GOVERNMENT BILL OF LADING NO. B-9423744, DATED SEPTEMBER 4, 1964.

THE SHIPMENT WAS DELIVERED TO H.S. MARTIN COMPANY IN APPARENT GOOD ORDER AND CONDITION, THERE BEING NO EXTERNAL SIGNS OF DAMAGE TO THE WOODEN BOX IN WHICH THE TUBE WAS PACKED. A CLEAN DELIVERY RECEIPT WAS THEREFORE SIGNED BY THE CONSIGNEE. HOWEVER, WHEN THE BOX WAS OPENED THE GLASS PORTION OF THE TUBE WAS FOUND TO BE BROKEN BEYOND REPAIR. THE ADMINISTRATIVE OFFICE SUBSEQUENTLY DETERMINED THAT THE DAMAGE OCCURRED WHILE THE SHIPMENT WAS IN POSSESSION OF THE CARRIER, SINCE IT SEEMED TO BE ESTABLISHED THAT THE TUBE WAS NOT BROKEN WHEN DELIVERED TO YOUR COMPANY AT POINT OF ORIGIN BUT FOUND TO BE BROKEN WHEN THE BOX WAS OPENED AT DESTINATION.

IT IS YOUR VIEW THAT YOU ARE NOT LIABLE FOR THE DAMAGE IN QUESTION BECAUSE (1) THE BOX CONTAINING THE TUBE WAS RECEIVED AT POINT OF ORIGIN IN APPARENT GOOD ORDER AND CONDITION, CONDITION OF CONTENTS UNKNOWN; (2) THE DELIVERY RECEIPT WAS SIGNED WITHOUT EXCEPTION; (3) THE TUBE WAS DAMAGED PRIOR TO TENDER TO YOUR COMPANY AT POINT OF ORIGIN AND IT HAS NOT BEEN ESTABLISHED THAT THE EQUIPMENT SUSTAINED ADDITIONAL DAMAGE DURING TRANSIT AS A RESULT OF CARRIER NEGLIGENCE.

THE ESSENTIAL ELEMENT TO ESTABLISH THE LIABILITY OF YOUR COMPANY IS THE CONDITION OF THE TUBE WHEN TENDERED AT POINT OF ORIGIN. IN THIS CONNECTION YOU RELY ON AN INSPECTION REPORT WHICH STATES THAT THE TUBE HAD BEEN CRACKED PRIOR TO BEING PACKED FOR SHIPMENT. YOUR INSPECTOR STATES THAT HE NOTICED THAT THE TUBE WAS CRACKED BECAUSE ONE OF THE PIECES HAD MASTIC TAPE AROUND IT TO HOLD THE PIECES TOGETHER. YOUR LETTER OF MARCH 30, 1965, ADDRESSED TO H.S. MARTIN AND SON, STATES THAT YOUR INSPECTOR ADVISES THAT THE GLASS TUBE WAS DAMAGED PRIOR TO SHIPMENT AND WAS BEING RETURNED FOR CREDIT.

THE SHIPPER, ON THE OTHER HAND, IN A REPORT TO THE DEPARTMENT OF THE AIR FORCE DATED APRIL 25, 1966, STATES:

"THE CRACK DID NOT RUN THROUGH THE ENTIRE TUBE, IN FACT THE TERM CRACK IS A MIS-NOMER. SPECIFICALLY, THE TAIL SECTION OR END PIECE OF THE TUBE BECAME SEPARATED FROM THE MAIN SECTION WHEN LIQUID NITROGEN WAS INTRODUCED INTO THE TUBE. THE TAIL IS ACTUALLY OF QUARTZ MATERIAL. AFCRL PERSONNEL WERE OF THE OPINION THAT REPAIRS BY THE MANUFACTURER WOULD HAVE REQUIRED A SIMPLE FUSING OF THE TWO SECTIONS.' THE PACKING OF THE TUBE WAS, AS INDICATED IN THE INSPECTION REPORT, OF FOAM RUBBER CUSHIONING AND FIBREBOARD SUSPENSION FORMS. THE OUTSIDE CONTAINER WAS MARKED ,GLASS HANDLE WITH CARE.' ON JUNE 5, 1965, THE SHIPPER ADVISED THAT THE TAPE TO WHICH YOUR INSPECTOR REFERS, WAS TO SECURE THE QUARTZ TAIL SECTION SECURELY WITHIN THE PACKAGE, AND NOT TO BIND CRACKS IN THE GLASS TUBE SECTION.

THUS, THE ADMINISTRATIVE RECORD SHOWS THAT THE GLASS PORTION OF THE TUBE WAS NOT CRACKED WHEN TENDERED FOR TRANSPORTATION, HAVING BEEN ONLY SEPARATED FROM ITS QUARTZ TAIL SECTION. THE PACKING SEEMS TO HAVE BEEN ENTIRELY ADEQUATE TO PROTECT THE TUBE DURING TRANSIT. IN THESE CIRCUMSTANCES, THE RECORD SHOWS THAT THE GLASS TUBE WAS NOT CRACKED OR BROKEN WHEN RECEIVED BY YOUR LINE FOR TRANSPORTATION, BUT THAT IT WAS DELIVERED TO THE CONSIGNEE BROKEN BEYOND REPAIR. THE FACT THAT YOUR INSPECTOR WAS NOT CALLED UNTIL A MONTH OR SO LATER DOES NOT AFFECT THE QUESTION OF YOUR LIABILITY. YOUR INSPECTION REPORT OF NOVEMBER 9, 1964, SHOWS THAT THE ONLY HANDLING THE CONSIGNEE GAVE THE SHIPMENT WAS TO UNPACK IT.

YOU MAINTAIN THAT DAMAGE TO THE TUBE DURING TRANSIT WAS NOT THE RESULT OF CARRIER NEGLIGENCE. HOWEVER, IT IS NOT INCUMBENT UPON THE GOVERNMENT TO ESTABLISH THE NEGLIGENCE OF THE CARRIER AS A CONDITION PRECEDENT TO ITS RIGHT TO RECOVERY. THE LAW IS WELL SETTLED THAT UNDER 49 U.S.C. 20 (11), AS UNDER THE COMMON LAW, A CARRIER, THOUGH NOT AN ABSOLUTE INSURER, IS LIABLE FOR DAMAGE TO GOODS TRANSPORTED BY IT UNLESS IT CAN SHOW THAT THE DAMAGE WAS CAUSED BY (A) AN ACT OF GOD; (B) A PUBLIC ENEMY; (C) AN ACT OF THE SHIPPER HIMSELF; (D) ACTION BY PUBLIC AUTHORITY, OR (E) THE INHERENT VICE OR NATURE OF THE GOODS. SEE MISSOURI PACIFIC RAILROAD COMPANY V. ELMORE AND STAHL, 377 U.S. 134, 137 (1964), AND THE CASES THEREIN CITED. THEREFORE, IN ACTIONS AGAINST A CARRIER FOR DAMAGE TO A SHIPMENT, A PRIMA FACIE CASE IS ESTABLISHED BY A SHOWING OF DELIVERY TO THE CARRIER IN GOOD CONDITION, ARRIVAL AT DESTINATION IN DAMAGED CONDITION, AND THE AMOUNT OF THE DAMAGES. THE ELMORE AND STAHL CASE IS AUTHORITY FOR THE PROPOSITION THAT THE CARRIER HAS THE BURDEN OF PROVING LACK OF NEGLIGENCE AND THAT THE DAMAGE WAS DUE TO ONE OF THE NOTED EXCEPTIONS.

WE ARE OF THE VIEW THAT THE RECORD IN THE INSTANT CASE ESTABLISHES THE DELIVERY OF A REPARABLE TUBE TO YOUR COMPANY FOR TRANSPORTATION TO EVANSTON, ILLINOIS, AND THAT YOU DELIVERED THE TUBE BROKEN BEYOND REPAIR. IN OTHER WORDS, YOU DID NOT DELIVER THE TUBE IN THE SAME CONDITION IT WAS TENDERED TO YOU, AND THE BURDEN OF PROOF IS UPON YOU TO SHOW THAT THE DAMAGE WAS CAUSED BY ONE OF THE EXCEPTIONS NOTED ABOVE. HOWEVER, SOME DOUBT AS TO CARRIER LIABILITY MAY BE PRESENT IN CASES OF CONCEALED DAMAGE. FOR THAT REASON WE WOULD BE WILLING TO ACCEPT A PROPOSAL BY YOUR COMPANY TO ASSUME LIABILITY FOR 50 PERCENT OF THE FULL AMOUNT OF THE ADMINISTRATIVELY ASSESSED DAMAGES (50 PERCENT OF $307.86, OR $153.93). UNDER SUCH A PROPOSAL WHICH SHOULD BE SUBMITTED TO THE TRANSPORTATION DIVISION OF OUR OFFICE AT 441 G STREET, N. W., WASHINGTON, D. C. 20548, WITHIN 60 DAYS, YOU WOULD RECEIVE A REFUND OF $153.93.