B-165788, JAN. 6, 1969

B-165788: Jan 6, 1969

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WHICH WE WILL CONSIDER AS A REQUEST FOR REVIEW OF OUR TRANSPORTATION DIVISION'S LETTER OF APRIL 4. THE SHIPMENT WAS DELIVERED AT DESTINATION BY RYDER ON JUNE 8. SHOWS THAT IT WAS DELIVERED ONE CARTON SHORT. IS ANNOTATED TO INDICATE THE SHORTAGE. ITS DOCUMENT VOUCHER NUMBER WAS FB-4608-6105-L041. IT ALSO ESTABLISHES A PRIMA FACIE CASE OF CARRIER LIABILITY AND PLACES ON THE CARRIER THE BURDEN OF SHOWING BY A PREPONDERANCE OF THE EVIDENCE THAT THE MISSING BOX WAS NOT GIVEN TO THE ORIGIN CARRIER OR THAT THE LOSS WAS EXCLUSIVELY CAUSED BY ONE OF THE EXCEPTIONS TO THE CARRIER'S COMMON LAW LIABILITY. THE CARRIER'S BURDEN IN THIS RESPECT IS A SUBSTANTIAL RIGHT OF THE SHIPPER AND CAN BE OVERCOME ONLY BY CONVINCING PROOF TO THE CONTRARY.

B-165788, JAN. 6, 1969

TO RYDER TRUCK LINES, INC.:

WE REFER TO YOUR LETTER OF OCTOBER 30, 1968, FILE 6-52630-J, TO OUR TRANSPORTATION DIVISION (AND TO YOUR PREVIOUS LETTERS BEARING THE SAME FILE REFERENCE), WHICH WE WILL CONSIDER AS A REQUEST FOR REVIEW OF OUR TRANSPORTATION DIVISION'S LETTER OF APRIL 4, 1968, FILE T-SR-013784 EPD. IN THE APRIL 4 LETTER, THE TRANSPORTATION DIVISION DISALLOWED YOUR CLAIM FOR $260, AN AMOUNT THE GOVERNMENT WITHHELD FROM MONEY OTHERWISE DUE YOU TO SATISFY ITS CLAIM AGAINST YOU FOR THE VALUE OF GOVERNMENT PROPERTY APPARENTLY LOST WHILE IN YOUR POSSESSION FOR TRANSPORTATION UNDER GOVERNMENT BILL OF LADING NO. A-7787935.

THE BILL OF LADING SHOWS THAT ON JUNE 1, 1966, AT NORFOLK, VIRGINIA, THE ORIGIN CARRIER, PILOT FREIGHT CARRIERS, INC., ACKNOWLEDGED RECEIPT OF A LESS-THAN-TRUCKLOAD SHIPMENT CONSISTING OF FIVE BOXES OF GOVERNMENT PROPERTY DESCRIBED AS "1 BOX RADIO RECEIVING OR TRANSMITTING SETS, 180 POUNDS, VOUCHER NO. FB4608-6105-L059"; AND "4 BOXES ELECTRICAL APPLIANCES OR INSTRUMENTS," WEIGHING A TOTAL OF 224 POUNDS,"VOUCHER FB4608-6105-L041" FOR TRANSPORTATION TO BARKSDALE AIR FORCE BASE, LOUISIANA. THE SHIPMENT WAS DELIVERED AT DESTINATION BY RYDER ON JUNE 8, 1966, BUT THE BACK OF THE BILL OF LADING, IN THE REPORT OF LOSS, DAMAGE, OR SHRINKAGE, SHOWS THAT IT WAS DELIVERED ONE CARTON SHORT. IN ADDITION, YOUR FREIGHT BILL, PRO NO. 121-559844, IS ANNOTATED TO INDICATE THE SHORTAGE. THE MISSING BOX CONTAINED A CRYSTAL UNIT TEST SET WEIGHING 56 POUNDS AND VALUED AT $260. ITS DOCUMENT VOUCHER NUMBER WAS FB-4608-6105-L041.

THE EXCEPTION ON THE BILL OF LADING, TOGETHER WITH OTHER EVIDENCE OF RECORD, ESTABLISHES THE ACTUAL RECEIPT OF FIVE BOXES BY THE ORIGIN CARRIER AND THE ACTUAL DELIVERY OF ONLY FOUR BOXES AT DESTINATION. IT ALSO ESTABLISHES A PRIMA FACIE CASE OF CARRIER LIABILITY AND PLACES ON THE CARRIER THE BURDEN OF SHOWING BY A PREPONDERANCE OF THE EVIDENCE THAT THE MISSING BOX WAS NOT GIVEN TO THE ORIGIN CARRIER OR THAT THE LOSS WAS EXCLUSIVELY CAUSED BY ONE OF THE EXCEPTIONS TO THE CARRIER'S COMMON LAW LIABILITY. MISSOURI PACIFIC RAILROAD CO. V ELMORE AND STAHL, 377 U.S. 134 (1964). THE CARRIER'S BURDEN IN THIS RESPECT IS A SUBSTANTIAL RIGHT OF THE SHIPPER AND CAN BE OVERCOME ONLY BY CONVINCING PROOF TO THE CONTRARY. KUPFERMANN V UNITED STATES, 227 F.2D 348 (1955).

YOU SEEM TO AGREE THAT THE SHIPMENT UNDER GOVERNMENT BILL OF LADING NO. A -7787935 CHECKED ONE CARTON SHORT; HOWEVER, TO REBUT THE GOVERNMENT'S PRIMA FACIE CASE YOU RELY ON THE DETAILS OF A SHIPMENT MOVING FROM THE SAME ORIGIN AND ON OR ABOUT THE SAME DAY UNDER GOVERNMENT BILL OF LADING NO. A-7787933.

THIS BILL OF LADING AND BILL OF LADING NO. A-7787935 WERE PREPARED ON MAY 27, 1966, BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA. BILL OF LADING NO. A-7787933 SHOWS THAT THE ORIGIN CARRIER, PILOT FREIGHT CARRIERS, INC., ACKNOWLEDGED RECEIPT OF SEVEN BOXES OF MISCELLANEOUS FREIGHT, WEIGHING A TOTAL OF 636 POUNDS, FOR TRANSPORTATION TO ENGLAND AIR FORCE BASE, LOUISIANA. INCLUDED IN THE SHIPMENT WERE TWO BOXES OF RADIO RECEIVING AND TRANSMITTING SETS, EACH WEIGHING 180 POUNDS. THE BILL OF LADING SHOWS THAT THE INVOICE/SHIPPING DOCUMENT VOUCHER NUMBER FOR THE RADIO SETS WAS FB-4805-6105-L058. THIS SHIPMENT, WHICH APPARENTLY WAS INTERLINED WITH RYDER, WAS DELIVERED BY RED BALL MOTOR FREIGHT, INC., ONE CARTON SHORT, BUT THE INCHECKER AT ENGLAND AIR FORCE BASE FAILED TO NOTE THE SHORTAGE ON THE CARRIER'S DELIVERY RECEIPT, PRO NO. 30-233768; HE DID, HOWEVER, NOTE THE SHORTAGE ON HISINCHECKER'S TALLY SHEET. THE MISSING ITEM WAS IDENTIFIED AS A RADIO RECEIVER WEIGHING 180 POUNDS AND HAVING A DOCUMENT NUMBER ENDING IN 58. SOME TWO MONTHS LATER, A RADIO RECEIVER WEIGHING 180 POUNDS WAS DELIVERED BY RED BALL TO ENGLAND AIR FORCE BASE ON ITS PRO NO. 61-140553 WHICH HAS ON ITS FACE THE TYPEWRITTEN NUMBER 4805-6105-L058. THE INCHECKER SHOWED ON HIS SHIPPER'S TALLY THAT THE DOCUMENT NO. WAS FB- 4805-6105 L058.

IN LETTERS TO THE TRANSPORTATION DIVISION, FINANCE CENTER, UNITED STATES ARMY, TO THE TRANSPORTATION LOSS AND DAMAGE DIVISION, DEPARTMENT OF THE AIR FORCE AND TO OUR TRANSPORTATION DIVISION, YOU HAVE URGED THAT THE CLEAR DELIVERY RECEIPT (PRO NO. 30-233768) GIVEN TO RED BALL INDICATES THAT SEVEN BOXES OF MISCELLANEOUS FREIGHT WERE DELIVERED TO ENGLAND AIR FORCE BASE ON GOVERNMENT BILL OF LADING NO. A-7787933, AND THAT THE RADIO RECEIVER DELIVERED BY RED BALL ON ITS PRO NO. 61-140553 IS ACTUALLY AN OVERAGE ON THE SHIPMENT MOVING UNDER BILL OF LADING NO. A-7787933 AND IS THE CRYSTAL UNIT TEST SET CHECKED SHORT UPON DELIVERY OF THE SHIPMENT COVERED BY BILL OF LADING NO. A-7787935.

AS WAS INDICATED IN A LETTER FROM OUR TRANSPORTATION DIVISION, A CLEAR DELIVERY RECEIPT IS NOT CONCLUSIVE OF THE RECORD OF FACTS SHOWN ON IT AT THE TIME IT WAS EXECUTED BUT, LIKE ANY OTHER RECEIPT, MAY BE SHOWN TO HAVE BEEN SIGNED IN ERROR AND TO NOT REPRESENT THE TRUE FACTS. SEE MEARS V NEW YORK, N.H. AND H.R. CO., 52 A. 610 (1902).

TO PROVE THAT THE CLEAR DELIVERY RECEIPT (RED BALL'S PRO NO. 30 233768) WAS GIVEN IN ERROR, THE RECORD CONTAINS THIS EVIDENCE: (1) A STATEMENT FROM ENGLAND AIR FORCE BASE, THE RECEIVING ACTIVITY, THAT THE INCHECKER INADVERTENTLY NEGLECTED TO NOTATE THE SHORTAGE ON THE DELIVERY RECEIPT; (2) INCHECKER SHIPMENT TALLY DATED JUNE 9, 1966, SHOWING THE SHORTAGE OF ONE BOX WEIGHING 180 POUNDS; (3) RED BALL'S DELIVERY RECEIPT, PRO NO. 61- 140553, SHOWING DELIVERY ON AUGUST 4, 1966, OF ONE RADIO RECEIVER WEIGHING 180 POUNDS AND BEARING REFERENCE TO VOUCHER NO. 4805-6105-L058 (BILL OF LADING NO. A-7797933 REFERS TO THE SAME NUMBER); (4) THE CRYSTAL UNIT TEST SET LOST FROM THE SHIPMENT MOVING UNDER BILL OF LADING NO. A-7787935 WEIGHED 56 POUNDS AND THE RADIO SET LATER DELIVERED ON THE SHIPMENT MOVING UNDER BILL OF LADING NO. A-7797933 WEIGHED 180 POUNDS.

WE BELIEVE THAT THIS EVIDENCE SHOWS CLEARLY THAT THE CRYSTAL UNIT TEST SET, WEIGHING 56 POUNDS, AND DOCUMENTED ON VOUCHER FB-4608-6105 L041, WAS NOT DELIVERED TO ENGLAND AIR FORCE BASE AS PART OF THE SHIPMENT THAT MOVED UNDER BILL OF LADING NO. A-7787933, RED BALL'S PRO NO. 30-233768, AND THAT IT WAS NOT LATER DELIVERED AS AN OVERAGE ON RED BALL'S PRO NO. 61-140553. FURTHERMORE, THE RECEIVING RECORDS AT ENGLAND AIR FORCE BASE WERE REVIEWED AND THEY DID NOT INDICATE ANY OVERAGE.

THUS, THE EVIDENCE AND ARGUMENT PRESENTED BY YOU DOES NOT REBUT THE GOVERNMENT'S PRIMA FACIE CASE OF CARRIER LIABILITY FOR THE VALUE OF A CRYSTAL UNIT TEST SET, WEIGHING 56 POUNDS, FOUND TO BE MISSING FROM THE SHIPMENT COVERED BY BILL OF LADING NO. A-7787935 WHICH WAS DELIVERED BY RYDER AT BARKSDALE AIR FORCE BASE ON JUNE 8, 1966.

WE, ACCORDINGLY, SUSTAIN THE DISALLOWANCE OF YOUR CLAIM. UNLESS YOU CAN FURNISH SUBSTANTIAL COUNTERVAILING EVIDENCE, FURTHER APPEAL TO THIS OFFICE WILL SERVE NO USEFUL PURPOSE. THIS DISALLOWANCE, OF COURSE, DOES NOT PRECLUDE FURTHER ACTION BY YOU IN THE COURTS.