B-163958, SEPT. 11, 1968

B-163958: Sep 11, 1968

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WHICH WAS SUSTAINED BY THAT DIVISION IN LETTER DATED JUNE 24. YOU CONTEND THAT THE AMOUNT COLLECTED IS EXCESSIVE. THAT IT IS NOT SUFFICIENTLY ITEMIZED AND THAT THE CLAIM WAS IMPROPERLY HANDLED BY THE MILITARY OCEAN TERMINAL. ANY DELIVERING CARRIER IS MADE LIABLE FOR LOSS. OR IN ANY TARIFF FILED WITH THE COMMISSION IS DECLARED TO BE UNLAWFUL AND VOID. SUCH PROVISION HAS NO EFFECT ON THE SUBSTANTIVE QUESTION OF LIABILITY AND IS NOT APPLICABLE HERE. WHILE THERE IS NOTHING IN THE RECORD HERE TO SHOW YOUR CORPORATION. WAS FURNISHED EVIDENCE AS TO THE PROBABLE COST THEREOF. THE DAMAGES WERE ACKNOWLEDGED ON DELIVERY OF THE TRAILER BY YOUR DRIVER WHO INDICATED THEY RESULTED FROM A COLLISION WITH A CAR.

B-163958, SEPT. 11, 1968

TO NATIONAL TRAILER CONVOY, INC.:

CONSIDERATION HAS BEEN GIVEN TO YOUR REQUEST, BY LETTER DATED JULY 2, 1968, YOUR FILE NO. 20239, FOR REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION BY LETTER DATED JANUARY 30, 1968, FILE T-SR 013629, WHICH WAS SUSTAINED BY THAT DIVISION IN LETTER DATED JUNE 24, 1968, UNDER THE SAME FILE REFERENCE. THE SAID LETTERS DISALLOWED YOUR CLAIM FOR REFUND OF ANY PORTION OF THE SUM OF $397.35 ADMINISTRATIVELY COLLECTED ON ACCOUNT OF THE DAMAGES TO THE GOVERNMENT-OWNED TRAILER WHICH MOVED UNDER GOVERNMENT BILL OF LADING C-6451409, DATED APRIL 13, 1966.

ALTHOUGH YOU ADMIT LIABILITY FOR THE DAMAGE, YOU CONTEND THAT THE AMOUNT COLLECTED IS EXCESSIVE, THAT IT IS NOT SUFFICIENTLY ITEMIZED AND THAT THE CLAIM WAS IMPROPERLY HANDLED BY THE MILITARY OCEAN TERMINAL, DIRECTORATE OF OPERATIONS AT BROOKLYN, NEW YORK. YOU PROPOSE A COMPROMISE SETTLEMENT IN THE AMOUNT OF $125.

YOUR EXCEPTION TO THE HANDLING OF THIS CLAIM BY THE ADMINISTRATIVE OFFICE APPEARS TO BE BASED LARGELY ON ITS FAILURE TO FURNISH YOU AN ESTIMATE OF REPAIR COSTS PRIOR TO REPAIR IN COMPLIANCE WITH ITEM 70 OF MILITARY RATE TENDER NO. 10-A ENTITLED CLAIMS FOR LOSS AND DAMAGE, WHICH READS AS FOLLOWS:

"ALL CLAIMS FOR LOSS OR DAMAGE SHALL BE SUBMITTED TO THE CARRIER- HOME OFFICE IN WRITING, CITING THE GOVERNMENT BILL OF LADING NUMBER, AND IN SUPPORT OF CLAIM, FURNISH EVIDENCE OF REPLACEMENT COST OF LOST ARTICLES AND/OR REPAIR COSTS OF DAMAGED ARTICLES, PRIOR TO REPLACEMENT OR REPAIR.'

BY THE TERMS OF SECTION 20 (11), PART I, OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11), MADE APPLICABLE TO MOTOR CARRIERS BY SECTION 219 OF PART II OF THE ACT, 49 U.S.C. 319, ANY DELIVERING CARRIER IS MADE LIABLE FOR LOSS, DAMAGE OR INJURY TO PROPERTY RECEIVED FOR TRANSPORT CAUSED BY IT OR BY ANY CONNECTING CARRIER. WITH RELATION THERETO, ANY LIMITATION OF LIABILITY OR OF THE AMOUNT OF RECOVERY FOUND IN ANY RECEIPT, BILL OF LADING, CONTRACT, RULE, REGULATION, OR IN ANY TARIFF FILED WITH THE COMMISSION IS DECLARED TO BE UNLAWFUL AND VOID.

THE ONE QUALIFICATION UPON THIS STATUTORY PROHIBITION RELATES TO INSTANCES IN WHICH THE COMMISSION HAS AUTHORIZED A CARRIER TO ESTABLISH VARIANT RATES FOR THE CARRIAGE OF PROPERTY (OTHER THAN LIVESTOCK) DEPENDENT UPON THE VALUE DECLARED BY THE SHIPPER OR AGREED TO IN WRITING. SUCH PROVISION HAS NO EFFECT ON THE SUBSTANTIVE QUESTION OF LIABILITY AND IS NOT APPLICABLE HERE. RESOLUTE INSURANCE CO. V MORGAN DRIVE-AWAY, INC., 403 S.W.2D 913, 918-919 (1966).

WHILE THERE IS NOTHING IN THE RECORD HERE TO SHOW YOUR CORPORATION, PRIOR TO THE MAKING OF THE REPAIRS, WAS FURNISHED EVIDENCE AS TO THE PROBABLE COST THEREOF, THE DAMAGES WERE ACKNOWLEDGED ON DELIVERY OF THE TRAILER BY YOUR DRIVER WHO INDICATED THEY RESULTED FROM A COLLISION WITH A CAR, WRITTEN NOTICE OF THE DAMAGE WAS GIVEN YOU ON MAY 5, 1966, AND WAS ACKNOWLEDGED ON YOUR BEHALF BY THE GENERAL INSURANCE ADJUSTMENT COMPANY ON MAY 12, 1966. ALSO, ON MAY 20, 1966, YOU WERE ADVISED THAT THE "ACTUAL COST OF REPAIRS IS $397.35.' IN VIEW OF YOUR ACKNOWLEDGED LIABILITY FOR THE REPAIRS, THE NECESSITY ON THE PART OF THE GOVERNMENT FOR IMMEDIATE REPAIRS AND ITS PROMPT NOTICE TO YOU OF THEIR COST, WE DO NOT SEE HOW THE FAILURE TO NOTIFY YOU IN ADVANCE OF THE REPAIRS OF THEIR PROBABLE COST, ALTHOUGH A TECHNICAL FAILURE TO COMPLY WITH ITEM 70 OF THE TENDER, IN ANY WAY AFFECTS YOUR LIABILITY OR PROVIDES ANY PROPER BASIS FOR THE GOVERNMENT'S ACCEPTANCE OF LESS THAN THE FULL AMOUNT OF YOUR LEGAL LIABILITY IN THE MATTER.

YOU FURTHER COMPLAIN THAT YOU HAVE NOT BEEN FURNISHED AN ITEMIZED STATEMENT OF THE CLAIM FOR $397.35. YOU STATE THAT THE ONLY REFERENCE HAS BEEN TO A TOTAL NUMBER OF LABOR HOURS AND TOTAL COST OF MATERIALS AND SUPPLIES, WITHOUT ANY INDICATION OF WHAT DAMAGES WERE REPAIRED.

THE FOLLOWING ITEMIZED STATEMENT OF REPAIR COSTS WAS FURNISHED YOU BY OUR TRANSPORTATION DIVISION IN A LETTER DATED JANUARY 30, 1968.

AS TO THE AMOUNT OF THE DAMAGES, THE COSTS WERE AS FOLLOWS:

DIRECT CIVIL SERVICE LABOR COSTS

63 HOURS $3.56 PER HOUR $224.28

PLUS 30 PERCENT FRINGE BENEFITS 67.28

MATERIAL AND SUPPLIES 18.80

PLUS 8 PERCENT G. A. SURCHARGE (GENERAL ADMINISTRATIVE) 24.83

PLUS 10 PERCENT STATISTICAL COSTS 33.52

MOVING COSTS TO AND FROM REPAIR AREA

5,728 CU. FT. .005 CENT PER CU. FT. 28.64

TOTAL REPAIR COSTS $397.35 THE RECORDS SHOW THAT THE FOREGOING STATEMENT COVERS THE COST OF REPAIRING THE FRAME, FRONT PANEL AND THE CHASSIS OF THE TRAILER. PHOTOGRAPHIC EVIDENCE ON FILE HERE DISCLOSES THERE WAS CONSIDERABLE DAMAGE TO THE FRAME AND TOW-BAR OF THIS TRAILER AS WELL AS TO THE FRONT PANEL. THUS, IN ADDITION TO THE REPAIR TO THE FRONT PANEL AND HITCH WHICH YOU INDICATE YOU BELIEVE COULD BE REPAIRED FOR A TOTAL OF $125, THE REPAIR COSTS INCLUDED REPAIRS MADE TO THE CHASSIS AND COSTS OF MOVING THE TRAILER TO AND FROM THE REPAIR AREA. IF REPAIRS HAD BEEN EFFECTED BY A PRIVATE CONTRACTOR THE TRANSPORTATION CHARGES PROBABLY WOULD HAVE EXCEEDED THE MOVING COSTS INCLUDED IN THE FOREGOING STATEMENT. MOREOVER, INCLUSION OF PROFIT IN ITS REPAIR BILL LIKELY WOULD HAVE INCREASED THE COSTS. THE SUM EXPENDED FOR REPAIRS, $397.35, THUS DOES NOT APPEAR TO BE EXCESSIVE AND AS INDICATED IN THE PRIOR CORRESPONDENCE THE ADMINISTRATIVE OFFICE REPORTS THE REPAIR COSTS OF $397.35 COVER ONLY THE IN-TRANSIT DAMAGE.

SECTION 20 (11), PART I OF THE INTERSTATE COMMERCE ACT, SUPRA, PROVIDES THAT A CARRIER THAT RECEIVES AND TRANSPORTS PROPERTY SHALL BE LIABLE "FOR THE FULL ACTUAL LOSS, DAMAGE, OR INJURY TO SUCH PROPERTY," WHICH THE CARRIER CAUSES OR IS CAUSED BY A CONNECTING CARRIER TO WHICH THE PROPERTY IS DELIVERED. THE LAW IS CONCERNED WITH RESTORATION OF THE CLAIMANT TO THE POSITION HE WOULD HAVE OCCUPIED HAD THERE BEEN NO LOSS OR DAMAGE TO THE SHIPMENT. IN THE CASE OF ATLANTIC COAST LINE RY. CO. V ROE, 118 SO. 155 (1928), THE COURT EMPHASIZES THE FACT THAT THE FEDERAL STATUTES DO NOT PROVIDE FOR THE RECOVERY OF FULL ACTUAL "VALUE," BUT FULL ACTUAL "LOSS," AND THAT THE OWNER OF THE PROPERTY SHALL BE MADE WHOLE BY RECEIVING THE PROPER MONEY EQUIVALENT TO WHAT HE HAS ACTUALLY LOST OR, IN OTHER WORDS, BY BEING RESTORED TO THE POSITION HE WOULD HAVE OCCUPIED HAD THE CARRIER PERFORMED ITS CONTRACT.

THE DISALLOWANCE OF YOUR CLAIM WAS, THEREFORE, PROPER AND IS SUSTAINED.