B-161988, NOV. 22, 1967

B-161988: Nov 22, 1967

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CARRIER'S INSURER CLAIMS THAT INTERNAL CONSTRUCTION OF TWO AIR POLLUTION SAMPLING TRAILERS WAS INSUFFICIENT FOR ANY TRAFFIC MOVEMENT. DELIVERY AT ORIGIN OF 2 TRAILERS IN GOOD CONDITION IS ESTABLISHED AND THEREFORE PRESUMPTION ARISES THAT DAMAGE RESULTED WHILE GOODS WERE IN POSSESSION OF CARRIER. A-5802110 WAS ISSUED ON DECEMBER 8. APPARENTLY THE TRAILERS WERE MOVED ON NOVEMBER 29. WHEN THE TRAILERS WERE RECEIVED AT CINCINNATI THEY WERE FOUND TO HAVE EXTENSIVE INTERNAL DAMAGE. 278.69 WAS PLACED ON THE REVERSE SIDE OF THE ORIGINAL BILL OF LADING AND ON YOUR BILL NO. 3814. IT WAS DECIDED THAT THEY SHOULD BE RETURNED TO BECKMAN INSTRUMENTS. THE TRAILERS WERE REPAIRED AT A COST OF $14. THIS AMOUNT WAS PAID ON SEPTEMBER 7.

B-161988, NOV. 22, 1967

PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. IN TRANSIT - REPAIR COSTS DECISION TO J.H. ROSE TRUCK LINE, INC. RE LIABILITY FOR DAMAGE IN MOVEMENT OF TWO MOBILE AIR SAMPLING TRAILERS FROM BECKMAN INSTRUMENT COMPANY, FULLERTON, CALIFORNIA TO PUBLIC HEALTH SERVICE IN CINCINNATI, OHIO. CARRIER'S INSURER CLAIMS THAT INTERNAL CONSTRUCTION OF TWO AIR POLLUTION SAMPLING TRAILERS WAS INSUFFICIENT FOR ANY TRAFFIC MOVEMENT, LET ALONE ANY CROSS COUNTRY TRAFFIC, AND THEREFORE DISCLAIMS LIABILITY FOR REPAIR OF DAMAGED TRAILERS. HOWEVER, ON BASIS OF RECORD, DELIVERY AT ORIGIN OF 2 TRAILERS IN GOOD CONDITION IS ESTABLISHED AND THEREFORE PRESUMPTION ARISES THAT DAMAGE RESULTED WHILE GOODS WERE IN POSSESSION OF CARRIER.

TO J. H. ROSE TRUCK LINE, INC.

GOVERNMENT BILL OF LADING NO. A-5802110 WAS ISSUED ON DECEMBER 8, 1965, FOR THE MOVEMENT OF TWO MOBILE AIR SAMPLING TRAILERS FROM BECKMAN INSTRUMENTS, INCORPORATED, FULLERTON, CALIFORNIA, TO THE UNITED STATES PUBLIC HEALTH SERVICE AT CINCINNATI, OHIO. APPARENTLY THE TRAILERS WERE MOVED ON NOVEMBER 29, 1965, FROM FULLERTON, CALIFORNIA, TO AVION COACH CORPORATION AT SAN JACINTO, CALIFORNIA, FOR FURTHER ASSEMBLY, THEN DELIVERED TO J. H. ROSE TRUCK LINE AT MONTEBELLO, CALIFORNIA, FOR TRANSPORTATION TO CINCINNATI, OHIO.

WHEN THE TRAILERS WERE RECEIVED AT CINCINNATI THEY WERE FOUND TO HAVE EXTENSIVE INTERNAL DAMAGE. A NOTATION OF DAMAGE IN THE AMOUNT OF $16,278.69 WAS PLACED ON THE REVERSE SIDE OF THE ORIGINAL BILL OF LADING AND ON YOUR BILL NO. 3814, PAID MAY 13, 1966, IN THE SUM OF $1,072.80.

THE TRAILERS ARRIVED IN CINCINNATI ON DECEMBER 20, 1965, AND AFTER VISUAL INSPECTION OF THE CONTENTS OF THE TRAILERS, IT WAS DECIDED THAT THEY SHOULD BE RETURNED TO BECKMAN INSTRUMENTS, FULLERTON, CALIFORNIA, FOR REPAIRS. THE TRAILERS WERE REPAIRED AT A COST OF $14,145, WHICH INCLUDED THE FREIGHT CHARGES ON THE TWO TRAILERS FROM CINCINNATI TO FULLERTON. THIS AMOUNT WAS PAID ON SEPTEMBER 7, 1966, BY THE PUBLIC HEALTH SERVICE, CHICAGO REGIONAL DISBURSING OFFICER, INVOICE NO. 3716 AND SCHEDULE NO. 507. THE CABINETS AND ELECTRICAL EQUIPMENT WHICH HAD BEEN TORN LOOSE FROM THEIR SUPPORTS WERE REMOVED FROM THE TRAILERS AND SHIPPED SEPARATELY IN ORDER TO MINIMIZE FURTHER DAMAGE TO THEM. THE FREIGHT CHARGES FOR THIS SEPARATE TRANSPORTATION WAS $197.10, PAID TO THE FRED PAGELS STORAGE COMPANY, CINCINNATI, OHIO, ON FEBRUARY 24, 1966.

ON APRIL 21, 1966, THE PUBLIC HEALTH SERVICE AT CINCINNATI BILLED YOU, ON ITS CLAIM NO. 27-1, FOR $16,278.69. THIS AMOUNT INCLUDED THE COST OF REPAIRS AND FREIGHT TO FULLERTON, PLUS THE ESTIMATED COST OF RETURN TRANSPORTATION FROM FULLERTON TO CINCINNATI. WHEN THE TWO TRAILERS WERE RESTORED TO WORKING CONDITION, THEY WERE SHIPPED IN TOW AWAY SERVICE TO ROSELLE PARK AND FAIRVIEW, NEW JERSEY. SINCE THE ORIGINAL DESTINATION HAD BEEN CINCINNATI THE ESTIMATED COST OF TRANSPORTATION FROM FULLERTON TO CINCINNATI WAS USED AS A FACTOR IN THE DETERMINATION OF DAMAGES.

YOUR INSURER, TRANSPORT INSURANCE COMPANY, BY LETTER DATED MAY 27, 1966, DECLINED THE GOVERNMENT'S CLAIM ON THE GROUND THAT THE "INTERNAL CONSTRUCTION OF THE CARGO IN QUESTION WAS ENTIRELY INSUFFICIENT FOR ANY TRAFFIC MOVEMENT, LET ALONE A CROSS COUNTRY MOVEMENT.' THUS THE BILL OF LADING STANDARD EXCEPTION FROM LIABILITY WHEN THE DAMAGE TO THE GOODS IS CAUSED BY INHERENT DEFECT OF THE GOODS IS RELIED UPON AS A BASIS FOR THE INSURER'S REJECTION OF THE GOVERNMENT'S CLAIM. THE CLAIM WAS REFERRED TO OUR OFFICE FOR FURTHER HANDLING.

UPON REVIEW OF THE RECORD BEFORE US, WE DO NOT BELIEVE THAT PROPER RELIANCE MAY BE PLACED UPON AN ALLEGATION OF FAULTY INTERNAL CONSTRUCTION, PARTICULARLY IN VIEW OF THE FACT THAT NO EVIDENCE HAS BEEN PRESENTED TO SUPPORT THAT VIEW. CONTRADICTING SUCH A VIEW IS THE FACT THAT THIS TYPE OF AIR POLLUTION SAMPLING TRAILER IS SHIPPED REGULARLY IN INTERSTATE COMMERCE AND DELIVERED IN GOOD ORDER. AS BEFORE STATED, THE TRAILERS INVOLVED IN THIS CASE, UPON BEING REPAIRED AT FULLERTON, WERE SHIPPED IN TOW AWAY SERVICE TO TWO POINTS IN NEW JERSEY. THE SHIPPER STATES THAT THE TRAILERS WERE THEN MOVED TO WASHINGTON, D.C. NO FURTHER DAMAGE INCIDENT WAS REPORTED IN CONNECTION WITH THESE SUBSEQUENT MOVEMENTS. AS EVIDENCE OF DELIVERY, IN GOOD ORDER AND CONDITION, TO YOUR LINE AT FULLERTON OF TWO TRAILERS, COMPLETE WITH INTERIOR INSTRUMENTATION AND ELECTRICAL EQUIPMENT, CAPABLE OF WITHSTANDING ORDINARY INTERSTATE TRANSPORTATION, WE ENCLOSE COPY OF A LETTER DATED FEBRUARY 2, 1967, FROM THE MANUFACTURER, BECKMAN INSTRUMENTS.

ON THE BASIS OF THIS RECORD, WE BELIEVE THAT DELIVERY AT ORIGIN OF TWO TRAILERS IN GOOD CONDITION HAS BEEN ESTABLISHED, AND THE RULE IS THAT WHEN GOODS ARE DELIVERED TO A CARRIER IN GOOD CONDITION AND THE CARRIER DELIVERS THEM IN DAMAGED CONDITION A PRESUMPTION ARISES THAT THE DAMAGE RESULTED WHILE THE GOODS WERE IN THE CARRIER'S POSSESSION. IN SUCH CASE THE BURDEN OF PROOF IS ON THE CARRIER TO SHOW THAT THE DAMAGE RESULTED FROM SOME FACTOR FOR WHICH IT IS NOT LEGALLY LIABLE. SILVER LINING, INC. V. SHEIN, 117 A. 2D 182; TUSCHMAN V. PENNSYLVANIA R. CO., 230 F.2D 787; UNITED STATES V. MISSISSIPPI VALLEY BARGE LINE CO., 285 F.2D. 381; MISSOURI PACIFIC R. CO. V. ELMORE AND STAHL, 377 U.S. 134. THERE IS NOTHING IN OUR RECORD WHICH REBUTS THE PRESUMPTION OF LIABILITY.

IN THE CIRCUMSTANCES WE CONCUR IN THE DETERMINATION OF CARRIER LIABILITY MADE BY THE PUBLIC HEALTH SERVICE IN A REVISED AMOUNT OF $16,164.52, COMPUTED AS FOLLOWS: COST OF REPAIRS AND FREIGHT

FROM CINCINNATI TO

FULLERTON, CALIFORNIA $14,145.00 COST OF RETURNING CABINETS

SEPARATELY FROM

CINCINNATI TO FULLERTON 197.10 ESTIMATED FREIGHT, 2 TRAILERS

FROM FULLERTON, CALIFORNIA,

TO CINCINNATI 1,822.42

-------------- TOTAL DAMAGES $16,164.52

ACCORDINGLY, YOUR CHECK IN THE AMOUNT OF $16,164.52, TO BE SUBMITTED IN 60 DAYS, SHOULD BE MADE PAYABLE TO THE "UNITED STATES GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THE TRANSPORTATION DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C. 20548, REFERRING TO FILE B- 161988.