B-166664, JAN. 13, 1970

B-166664: Jan 13, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHERE GOODS (DRUMS OF ACID) WERE LOADED BY SHIPPER AS SPECIFIED BY CARRIER DRIVER BECAUSE OTHER CARGO PICK UP WAS TO BE MADE AT ANOTHER LOCATION AND NO EXCEPTION TO CONDITION WAS TAKEN BY CARRIER. THEREFORE CLAIM REPRESENTING PAYMENTS TO OTHER SHIPPERS FOR CONTAMINATION AND FREIGHT IS NOT FOR ALLOWANCE. SINCE CONTRACT OF TRANSPORTATION WAS NOT COMPLETED. CARRIER IS NOT ENTITLED TO FREIGHT CHARGE. WERE LOADED IN THE FRONT END OF THE TRAILER. THE TRAILER WAS THEN DISPATCHED TO ANOTHER AREA OF THE TRACY DEPOT AND 1. 098 POUNDS OF GENERAL FREIGHT WERE LOADED FOR DELIVERY TO GLASGOW AIR FORCE BASE. THE TRAILER WAS THEN RETURNED TO YOUR TERMINAL AT STOCKTON AND THE LOADING CHART SHOWS THAT APPROXIMATELY 14.

B-166664, JAN. 13, 1970

TRANSPORTATION--PROPERTY DAMAGED IN TRANSIT--LIABILITY DECISION TO RINGSBY SYSTEM CONCERNING CLAIM OF IDEAL TRAILER 96 INCIDENT TO TRANSPORTATION OF DRUMS OF ACID FROM TRACY DEPOT TO JACKSONVILLE, FLORIDA UNDER GOVERNMENT BILL OF LADING. WHERE GOODS (DRUMS OF ACID) WERE LOADED BY SHIPPER AS SPECIFIED BY CARRIER DRIVER BECAUSE OTHER CARGO PICK UP WAS TO BE MADE AT ANOTHER LOCATION AND NO EXCEPTION TO CONDITION WAS TAKEN BY CARRIER, BUT EN ROUTE ENTIRE LOAD BECAME CONTAMINATED BY ACID FUMES, RECORD ESTABLISHES DELIVERY TO CARRIER IN GOOD CONDITION AND THAT GOODS BECAME DEFECTIVE WHILE IN POSSESSION OF CARRIER. THEREFORE CLAIM REPRESENTING PAYMENTS TO OTHER SHIPPERS FOR CONTAMINATION AND FREIGHT IS NOT FOR ALLOWANCE. SINCE CONTRACT OF TRANSPORTATION WAS NOT COMPLETED, CARRIER IS NOT ENTITLED TO FREIGHT CHARGE.

TO THE RINGSBY SYSTEM:

SUBJECT: IDEAL TRAILER 96

LOSS AND DAMAGE, U. S. GOVERNMENT PROPERTY, JULY 1966

WE REFER TO THE FILE PERTAINING TO THE LOSS AND DAMAGE THAT OCCURRED IN CONNECTION WITH A SHIPMENT OF 100 DRUMS OF ACID, WEIGHING 16,500 POUNDS, LOADED IN IDEAL TRAILER 96 AT THE TRACY DEFENSE DEPOT, CALIFORNIA, UNDER GOVERNMENT BILL OF LADINGNO. C-8780112 ON JULY 15, 1966.

THE RECORD SHOWS THAT THE 100 DRUMS OF ACID, DESTINED TO JACKSONVILLE, FLORIDA, WERE LOADED IN THE FRONT END OF THE TRAILER, WITH AN UNDETERMINED NUMBER OF DRUMS BEING TOP-LOADED ON THE FIRST LAYER OF DRUMS. THE TRAILER WAS THEN DISPATCHED TO ANOTHER AREA OF THE TRACY DEPOT AND 1,098 POUNDS OF GENERAL FREIGHT WERE LOADED FOR DELIVERY TO GLASGOW AIR FORCE BASE, MONTANA, UNDER BILL OF LADING NO. C-8779849. THE TRAILER WAS THEN RETURNED TO YOUR TERMINAL AT STOCKTON AND THE LOADING CHART SHOWS THAT APPROXIMATELY 14,000 POUNDS OF GENERAL FREIGHT WERE ADDED TO THE TRAILER FOR DESTINATIONS EAST AND NORTH OF SALT LAKE CITY AND OGDEN, UTAH.

UPON ARRIVAL AT DENVER, ON JULY 19, 1966, THE ROCKY MOUNTAIN ARSENAL WAS CONTACTED FOR ASSISTANCE BECAUSE, WHEN THE TRAILER DOORS WERE OPENED, WHITE SMOKE WAS EMITTED. INSPECTION BY ROCKY MOUNTAIN ARSENAL PERSONNEL SHOWED THAT THE ENTIRE LOAD WAS CONTAMINATED BY ACID FUMES OR ACID ESCAPING FROM LEAKING DRUMS. THE INSPECTOR FOUND APPROXIMATELY 14 DRUMS IN THE TOP LOAD WITH SEVERAL DRUMS LYING ON THEIR SIDES. THIRTY-TWO OF THE DRUMS WERE OFF-LOADED AND 17 DRUMS WERE FOUND TO BE LEAKING. THE ENTIRE SHIPMENT OF DRUMS WAS THEN OFF LOADED AND PLACED IN A HOLD AREA. THE RECORD IS NOT CLEAR AS TO WHETHER THE DRUMS WERE HELD AT RINGSBY'S TERMINAL OR IN A HOLD AREA AT THE ROCKY MOUNTAIN ARSENAL. INFORMATION AS TO WHERE THE DRUMS WERE HELD SEEMS MATERIAL TO THIS CASE, SINCE THE U.S. ARMY FINANCE CENTER ADVISES THAT AT THE CARRIER'S REQUEST THE ENTIRE SHIPMENT OF ACID WAS BURIED DUE TO LEAKAGE OF ALL CONTAINERS.

YOUR LETTER OF JULY 8, 1969, SHOWS THAT DUE TO CONTEMINATION TO THE CONTENTS OF THE TRAILER, YOU PAID CLAIMS OF $903.41 TO OTHER SHIPPERS; $436.64 IS SAID TO HAVE BEEN RECOVERED FROM YOUR COMPANY FOR DAMAGE TO GOVERNMENT PROPERTY SHIPPED UNDER BILL OF LADING NO. C-87798449. THUS THE TOTAL DAMAGES DUE TO CONTAMINATION ARE $1,340.05. IN ADDITION TO THIS AMOUNT YOU CLAIM YOU ARE DUE $773.85, THE FREIGHT CHARGES ON THE 16,500 POUNDS OF ACID FROM TRACY TO DENVER. YOUR RIGHT TO RECOVER FROM THE GOVERNMENT DEPENDS UPON WHETHER THE LOSS WAS DUE TO THE FAULT OF THE SHIPPER OR TO SOME UNEXPLAINED OCCURRENCE WHILE THE GOVERNMENT PROPERTY WAS IN THE CARRIER'S POSSESSION.

IT IS YOUR CONTENTION THAT THE DRUMS IN WHICH THE ACID WAS LOADED WERE FAULTY AND COULD NOT SAFELY CONTAIN THEIR CONTENTS; ALSO, YOU SAY THAT THE DRUMS WERE NOT MARKED IN ACCORDANCE WITH INTERSTATE COMMERCE COMMISSION (I.C.C.) REQUIREMENTS. YOU FURTHER STATE THAT THE LADING WAS LOADED TOO HIGH IN THE TRAILER BY THE GOVERNMENT PERSONNEL AT TRACY. HOWEVER, THERE IS CONSIDERABLE DOUBT THAT GOVERNMENT PERSONNEL WERE RESPONSIBLE FOR THE CONDITIONS RESULTING IN THE LOSS AND DAMAGE.

IT IS AGREED THAT GOVERNMENT EMPLOYEES LOADED THE ACID INTO THE TRAILER AT TRACY. THEN THE VEHICLE WAS MOVED TO ANOTHER LOCATION WITHIN THE DEPOT AREA, PRESUMABLY BY YOUR DRIVER. AFTER THE SECOND PICK-UP, YOUR DRIVER TOOK THE TRAILER INTO YOUR TERMINAL AT STOCKTON. DURING THE TIME OF THE LOADING OF THE ACID AT TRACY, THE TIME OF THE SECOND PICK-UP, AND ON THE RUN INTO STOCKTON, THE DRIVER HAD AMPLE OPPORTUNITY TO INSPECT THE PHYSICAL ASPECTS OF THE LOAD; IF THE TOP LOADING OF THE 14 OR MORE DRUMS REPRESENTED AN UNSAFE LOAD, OR IF THE DRUMS WERE WET, OR OTHERWISE SHOWED SIGNS OF LEAKING, IT WAS HIS DUTY, AS YOUR AGENT, TO INFORM THE SHIPPER OF THE CONDITIONS AND EITHER TO REJECT THE SHIPMENT OR TO REQUIRE TRACY TO RESTORE THE LOAD. IN THE ALTERNATIVE, YOUR DOCK SUPERVISOR AT STOCKTON COULD HAVE NOTED THE CONDITION OF THE LOAD AND REQUESTED INSTRUCTIONS FROM TRACY.

IN THIS CONNECTION, YOUR ACCIDENT REPORT TO THE I.C.C; DATED JULY 25, 1966, STATES THAT THE DRUMS WERE "PLACED 2 HIGH IN TRAILER WITH FREIGHT ALL KINDS PLACED AROUND ACID FOR BRACING." SINCE THIS TRAILER WAS OPENED AND OTHER FREIGHT LOADED THEREIN, YOUR EMPLOYEES OR AGENTS HAD AMPLE OPPORTUNITY TO NOTE THE CONDITION OF THIS LOADING. AS IT LATER DEVELOPED, THE DRUMS (OR AT LEAST SOME OF THEM) IN THE TOP LOAD FELL OVER AND ROLLED AROUND FOR AN INDEFINITE PERIOD OF TIME. YOUR DOCK SUPERVISOR AT STOCKTON HAD THE DUTY TO SAFELY BRACE THIS LOAD. WE DO NOT BELIEVE, IN THESE CIRCUMSTANCES, THAT THE SHIPPER WAS AT FAULT IF THIS LOAD WAS NOT SAFE, SINCE VISUAL INSPECTION BY YOUR AGENTS SHOULD HAVE RESULTED IN DETECTING THIS DEFECT, FAILING WHICH YOUR COMPANY MUST BEAR THE CONSEQUENCES. SEE UNITED STATES V. SAVAGE TRUCK LINES 209 F. 2D 442 (1953).

CONCERNING THE CHARACTER OF THE CONTAINERS, IN YOUR LETTER DATED JULY 28, 1966, TO TONY COLUMBO, TRAFFIC MANAGER AT DEFENSE DEPOT, TRACY, YOU STATE THAT NOT ALL THE OUTSIDE STEEL OVERPACKS, OR OUTER CONTAINERS, CARRIED THE I.C.C. SPECIFICATION NUMBER 6-D, AS REQUIRED BY APPLICABLE TARIFFS. YOU ALSO SAY THAT YOU DID NOT FIND THE I.C.C. SPECIFICATION NOTATION ON THE INNER POLYETHYLENE CONTAINERS AND THAT YOU ONLY FOUND THE WORDS "DELAWARE BARREL" ON THE SCREW OF THE BUNGS.

APPARENTLY THE WORDS "DELAWARE BARREL" REFER TO THE MANUFACTURER OF THESE CONTAINERS, WHICH IS THE DELAWARE BARREL AND DRUM COMPANY OF WILMINGTON, DELAWARE. THAT COMPANY IS NOW A PART OF THE DELAWARE PLASTICS DIVISION, CONTAINER CORPORATION OF AMERICA, WILMINGTON, DELAWARE. WHILE, OBVIOUSLY, THIS CORPORATION CANNOT DEFINITELY CONFIRM THAT THOSE PARTICULAR DRUMS, MANUFACTURED BY PREDECESSOR, WERE SO MARKED, IT IS UNDERSTOOD THAT THE PRACTICE IN THE MANUFACTURE OF CONTAINERS OF THIS TYPE IS ALWAYS TO CONFORM TO I.C.C. SPECIFICATIONS, AND THAT MARKINGS OF I.C.C. SPECIFICATIONS ARE PLACED NEAR THE BOTTOM OF BOTH THE INNER AND OUTER CONTAINERS.

IN THIS CONNECTION, YOUR LETTER OF JULY 28, 1966, DID NOT STATE HOW MANY DRUMS YOU INSPECTED AND HOW MANY OF THOSE INSPECTED DID NOT CONTAIN THE I.C.C. SPECIFICATION NUMBER. ALSO IN YOUR REPORT TO THE I.C.C. YOU INDICATE THAT THE PACKAGES WERE MARKED WITH THE I.C.C. SPECIFICATION NO. 6 -D. MOREOVER, IT WOULD SEEM THAT IF THERE WAS A "WHITE POWDERY RESIDUE" OVER THE ENTIRE LOAD, AS THE ROCKY MOUNTAIN ARSENAL INSPECTION REPORT (JULY 19, 1966) STATES, THE MARKINGS ON THE CONTAINERS MAY HAVE BEEN BURNT OFF OR OBLITERATED.

AT THE POINT OF ORIGIN THE DRUMS WERE IN APPARENT GOOD ORDER AND CONDITION; THE TRACY DEPOT ON JUNE 28, 1967, ADVISED THE ARMY FINANCE CENTER THAT THE DRUMS WERE HAND-LOADED. IT SEEMS CERTAIN THAT IF THE DRUMS WERE LEAKING AT THAT TIME THE FREIGHT HANDLERS WOULD HAVE NOTICED THAT CONDITION, AS WOULD YOUR DRIVER WHEN ASKED FOR LOADING INSTRUCTIONS. AS TO THIS POINT, THE DEPOT STATED THAT IT IS THE POLICY OF THE DEPOT TO LOAD CARGO AS SPECIFIED BY THE DRIVER, AND THAT THIS IS OF EXTREME IMPORTANCE WHEN THE TRUCK IS SCHEDULED FOR MORE THAN ONE PICK-UP. WHEN THE TRAILER ARRIVED AT YOUR STOCKTON TERMINAL, YOUR COMPANY AGAIN HAD AN OPPORTUNITY TO NOTE ANY LEAKING DRUMS, BUT NO EXCEPTION WAS TAKEN TO THE LOAD; YOUR REPRESENTATIVE SIGNED THE BILL OF LADING WITHOUT EXCEPTION. THIS THEN, ESTABLISHES A CASE OF DELIVERY OF GOODS TO THE CARRIER IN GOOD ORDER AND CONDITION, AND THAT THE GOODS BECAME DEFECTIVE WHILE IN THE POSSESSION AND CONTROL OF THE CARRIER.

IT SHOULD BE OBSERVED, ALSO, THAT THE TRAILER INVOLVED MADE A STOP AT SALT LAKE CITY, UTAH, WHERE A SUBSTANTIAL PORTION OF THE LOAD WAS REMOVED AND THE TRAILER WENT FORWARD WITHOUT OTHER FREIGHT BEING LOADED AT THAT POINT. APPARENTLY THE ONLY SHIPMENTS REMAINING IN THE TRAILER AFTER THE SALT LAKE CITY STOP WERE THE ACID AND THE OTHER SHIPMENTS FOUND CONTAMINATED AT DENVER. IF THE DRUMS WERE LEAKING AT SALT LAKE CITY, THE LEAKAGE SHOULD HAVE BEEN DETECTED THERE. IN OTHER WORDS, THE ACID WAS TRANSPORTED 20 MILES FROM TRACY DEPOT TO STOCKTON, THEN 705 MILES TO SALT LAKE CITY WITHOUT ANY REPORTED SIGN OF DETERIORATION; APPARENTLY, THEN, THE ACTUAL DAMAGE INCIDENT, OR THE CAUSE OF THE DAMAGE, OCCURRED SOMEWHERE BETWEEN SALT LAKE CITY AND DENVER.

IN THE CIRCUMSTANCES, UPON THE PRESENT RECORD, WE ARE OF THE VIEW THAT THE CARRIER HAS NOT BROUGHT ITSELF WITHIN THE EXEMPTION FROM LIABILITY ARISING WHERE THE SHIPPER IS AT FAULT; AND THERE IS NO VALID BASIS UPON WHICH THIS OFFICE MAY AUTHORIZE PAYMENT OF YOUR CLAIM FOR $2,113.90, REPRESENTING PAYMENTS MADE TO OTHER SHIPPERS FOR CONTAMINATION OF THEIR GOODS AND FREIGHT ALLEGEDLY DUE ON TWO GOVERNMENT BILLS OF LADING.

THERE REMAINS THE QUESTION OF THE LIABILITY FOR THE VALUE OF THE ACID, WHICH THE CONSIGNEE, THE JACKSONVILLE NAVAL AIR STATION, JACKSONVILLE, FLORIDA, HAS STATED TO BE $1,920. IT HAS BEEN SHOWN THAT THE 100 DRUMS WERE OFF-LOADED AT DENVER, BUT IT IS NOT CLEAR WHETHER THE ACID WAS HELD AT RINGSBY'S FACILITIES OR AT THE ROCKY MOUNTAIN ARSENAL. A LETTER FROM YOU DATED OCTOBER 5, 1966, TO THE JACKSONVILLE NAVAL AIR STATION STATES THAT THE ACID WAS ON HAND AT THE ROCKY MOUNTAIN ARSENAL AT THAT TIME. HOWEVER, AS INDICATED HERETOFORE, THE ARSENAL HAS STATED THAT THE ACID WAS BURIED AT THE REQUEST OF THE CARRIER. THE DATE ON WHICH DISPOSITION WAS MADE OF THE ACID HAS NOT BEEN FURNISHED. IF DISPOSITION OF THE ACID WAS MADE AT YOUR REQUEST, IT SEEMS THAT IT WAS NEVER DELIVERED TO THE GOVERNMENT, BUT WAS UNDER YOUR CONTROL. IF THE ACID WAS HELD AT THE ROCKY MOUNTAIN ARSENAL, IT WAS BEING HELD AT THAT POINT FOR YOUR CONVENIENCE. WE NOTE IN THIS CONNECTION THAT YOUR LETTER OF OCTOBER 5, 1966, REFERRED TO ABOVE, STATES YOU RECEIVED A REQUEST FROM THE ARSENAL FOR DISPOSITION INSTRUCTIONS.

IN ANY EVENT, YOU ARE NOT ENTITLED TO ANY FREIGHT CHARGES FOR THE HAUL TO DENVER, SINCE THE CONTRACT OF TRANSPORTATION WAS NOT COMPLETED AND THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON GOVERNMENT BILL OF LADING NO. C- 8780112 WAS NOT ACCOMPLISHED, WHICH IS A BASIC REQUIREMENT FOR THE PAYMENT OF TRANSPORTATION CHARGES. 45 COMP. GEN. 556 (1966); STRICKLAND TRANSPORTATION CO. V. UNITED STATES, 223 F. 2D 466, 467 (1955).

IN THE ABSENCE OF ANY FURTHER INFORMATION FROM YOUR COMPANY AS TO THE FINAL DISPOSITION OF THE ACID, WE WILL PROCEED TO DEVELOP THE MATTER FULLY WITH THE INTERESTED GOVERNMENT PERSONNEL AND TO MAKE ANY ADJUSTMENTS FOR THE VALUE OF THE ACID THAT MAY BE JUSTIFIED.