B-166882, NOV. 18, 1969

B-166882: Nov 18, 1969

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DAMAGES EN ROUTE CONCERNING TWO SHIPMENTS OF MEMBERS' HOUSETRAILERS WHICH WERE DAMAGED EN ROUTE. 072.41 AND $402.27 AS UNEARNED FREIGHT CHARGES ON TWO SHIPMENTS IS DEMANDED FROM CARRIER SINCE GBL CONTRACT PROVISION FOR DELIVERY "IN LIKE GOOD ORDER AND CONDITION" SUPPORT POSITION DELIVERY IN IRREPARABLE CONDITION IS AND CONDITION" SUPPORT POSITION DELIVERY IN IRREPARABLE CONDITION IS IN EFFECT NO DELIVERY AT ALL. WAS TRANSPORTED FROM SEDRO WOOLEY. WHILE EN ROUTE THE HOUSETRAILER WAS IN A "WINDSTORM" ACCIDENT REQUIRING TEMPORARY REPAIRS. THEN IT WAS DELIVERED TO JACKSONVILLE. THAT THE TRAILER WAS "DESTROYED.'. THE TRAILER WAS NOT USED TO LIVE IN OR AS A TRADE-IN BY SGT. WAS SCHEDULED TO BE MOVED FROM SAULT STE.

B-166882, NOV. 18, 1969

HOUSEHOLD EFFECTS--HOUSE TRAILER SHIPMENTS--DAMAGES EN ROUTE CONCERNING TWO SHIPMENTS OF MEMBERS' HOUSETRAILERS WHICH WERE DAMAGED EN ROUTE, CONSIGNEES SIGNING CERTIFICATE OF DELIVERY ON GOVERNMENT BILLS OF LADING WITH ONE NOTING "DESTROYED" ON BACK OF GBL AND OTHER BILLS OF LADING WITH ONE NOTING "DESTROYED" ON BACK OF GBL AND OTHER INDICATING "TOTAL LOSS" ON CARRIER'S GBL, AND CARRIER MAKING REIMBURSEMENT OF HOUSETRAILERS' VALUE, REFUND OF $2,072.41 AND $402.27 AS UNEARNED FREIGHT CHARGES ON TWO SHIPMENTS IS DEMANDED FROM CARRIER SINCE GBL CONTRACT PROVISION FOR DELIVERY "IN LIKE GOOD ORDER AND CONDITION" SUPPORT POSITION DELIVERY IN IRREPARABLE CONDITION IS AND CONDITION" SUPPORT POSITION DELIVERY IN IRREPARABLE CONDITION IS IN EFFECT NO DELIVERY AT ALL, GBL CANNOT BE "PROPERLY" ACCOMPLISHED, AND EXECUTED CONSIGNEE'S CERTIFICATE OF DELIVERY MUST BE CONSIDERED WITH EVIDENCE OF ACTUAL CONDITION OF PROPERTY DELIVERED.

TO NATIONAL TRAILER CONVOY, INC.:

YOUR LETTERS OF SEPTEMBER 9, 1968, REQUEST REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN CONNECTION WITH THE TRANSPORTATION OF TWO SHIPMENTS OF HOUSETRAILERS. YOUR COMPANY HAS BEEN ASKED TO REFUND $2,072.41 AND $402.27 AS UNEARNED FREIGHT CHARGES ON THE TWO SHIPMENTS.

THE FIRST HOUSETRAILER, BELONGING TO AND CONTAINING PERSONAL EFFECTS OF SGT. F. P. BERAN, WAS TRANSPORTED FROM SEDRO WOOLEY, WASHINGTON, TO CAMP LEJEUNE, NORTH CAROLINA, UNDER GOVERNMENT BILL OF LADING (GBL) A 6242431, SIGNED BY YOUR AGENT ON MAY 9, 1967. WHILE EN ROUTE THE HOUSETRAILER WAS IN A "WINDSTORM" ACCIDENT REQUIRING TEMPORARY REPAIRS, AND THEN IT WAS DELIVERED TO JACKSONVILLE, NORTH CAROLINA. SGT. BERAN SIGNED THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BL; HE INDICATED ON THE BACK OF THE GBL, UNDER REPORT OF LOSS, DAMAGE, OR SHRINKAGE, THAT THE TRAILER WAS "DESTROYED.' AFTER ARRIVAL AT JACKSONVILLE, THE TRAILER WAS NOT USED TO LIVE IN OR AS A TRADE-IN BY SGT. BERAN, AND YOU DETERMINED AT JACKSONVILLE THAT THE COST TO REPAIR THE DAMAGE WOULD EXCEED ITS VALUE. THEREUPON YOU PAID SGT. BERAN THE VALUE OF THE TRAILER ($3,450), REALIZED FOR YOURSELF $792 AS NET SALVAGE PROCEEDS, AND COLLECTED $2,072.41 FREIGHT CHARGES.

THE SECOND HOUSETRAILER, BELONGING TO JAMES K. LITTLE OF THE U.S. COAST GUARD AND CONTAINING HIS PERSONAL EFFECTS, WAS SCHEDULED TO BE MOVED FROM SAULT STE. MARIE, MICHIGAN, TO CHILLICOTHE, ILLINOIS, UNDER GBL B- 7961821, SIGNED BY YOUR AGENT ON SEPTEMBER 19, 1966. IT WAS DAMAGED EN ROUTE BUT DELIVERED TO PEORIA, ILLINOIS. MRS. LITTLE SIGNED THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE GBL, BUT AN EXCEPTION ON THE BACK OF YOUR ORIGINAL COMBINATION FREIGHT BILL AND BILL OF LADING NO. 70878 (PAYOR'S COPY - (1) (, SIGNED BY MR. AND MRS. LITTLE AND YOUR DRIVER, INDICATED THE TRAILER WAS A "TOTAL LOSS.' THE RECORD DOES NOT INDICATE WHETHER THE TRAILER WAS BRIEFLY USED TO LIVE IN OR AS A TRADE IN FOR A NEW TRAILER BY THE LITTLES AFTER DELIVERY AT PEORIA, BUT IT REASONABLY MAY BE ASSUMED THAT IT WAS USED FOR NEITHER PURPOSE SINCE IT WAS DESCRIBED AS A "TOTAL LOSS.' YOU PAID THE BOOK VALUE OF THE TRAILER TO THE LITTLES, AND COLLECTED $402.27 FREIGHT CHARGES.

YOU ALLEGE THAT SO LONG AS FREIGHT TRANSPORTED UNDER A GBL CONTRACT IS ACTUALLY DELIVERED TO THE CONSIGNEE, REGARDLESS OF ITS CONDITION, AND RECEIPTED FOR ON THE CONSIGNEE'S CERTIFICATE OF DELIVERY, THE CONTRACT CONDITION PRECEDENT TO RECOVERY OF FREIGHT CHARGES HAS BEEN PERFORMED, THE GBL HAS BEEN "PROPERLY ACCOMPLISHED," AND FREIGHT CHARGES EARNED; YOU SAY THAT OUR REFUSAL TO PAY FREIGHT CHARGES WOULD UNJUSTLY ENRICH THE SHIPPER AND BREACH THE GBL CONTRACT. IT SHOULD BE NOTED THAT THE CONSIGNEE'S CERTIFICATE OF DELIVERY INDICATES THAT THE PROPERTY DESCRIBED WAS RECEIVED IN APPARENT GOOD ORDER AND CONDITION,"EXCEPT AS NOTED ON THE REVERSE" OF THE GBL. ADDITIONALLY, THE RECITATIONS ON A DOCUMENT SUCH AS THE GBL ARE ONLY PRIMA FACIE CORRECT AND ARE SUBJECT TO REBUTTAL ON THE BASIS OF THE ACTUAL FACTS.

UNDER THE GBL CONTRACT IN WHICH YOUR COMPANY PARTICIPATED THE CARRIERS AGREED TO DELIVER THE GOODS ACCEPTED FOR TRANSPORTATION "IN LIKE GOOD ORDER AND CONDITION" TO THE CONSIGNEE. DELIVERY OF ENTIRELY UNUSABLE HOUSETRAILERS WAS THE EQUIVALENT OF A COMPLETE FAILURE OF DELIVERY AS PROMISED UNDER THE TERMS OF THE GBL CONTRACT; THE CONSIGNEES WERE IN NO BETTER POSITION THAN IF THEY HAD REJECTED THE SHIPMENTS AND THE WRECKED TRAILERS CONSTITUTED JUNK HAVING ONLY A SALVAGE VALUE.

ALCOA STEAMSHIP CO., INC. V UNITED STATES, 338 U.S. 421 (1949); STRICKLAND TRANSPORTATION CO., INC. V UNITED STATES, 223 F.2D 466 (1955); AND NATIONAL TRAILER CONVOY, INC. V UNITED STATES, 345 F.2D 573 (1965), HOLD THAT THE GBL CANNOT BE PROPERLY ACCOMPLISHED UNTIL THERE HAS BEEN AN ACTUAL RECEIPT OF THE FREIGHT BY THE CONSIGNEE AT DESTINATION, AND ALCOA STEAMSHIP CO., INC. AND STRICKLAND TRANSPORTATION CO., INC., HOLD THAT EVEN THOUGH THE CONSIGNEE HAS SIGNED THE CONSIGNEE'S CERTIFICATE OF DELIVERY, THAT IS NOT IN ITSELF AN ACCEPTANCE OF FREIGHT AND PROPER ACCOMPLISHMENT OF THE GBL.

AS MENTIONED IN PREVIOUS CORRESPONDENCE WITH YOUR COMPANY, CASES INVOLVING COMMERCIAL BILLS OF LADING INDICATE THAT DELIVERY DOES NOT HAVE TO BE ACCEPTED OR FREIGHT CHARGES PAID FOR ECONOMICALLY VALUELESS GOODS. THE WILLDOMINO, 300 F.5 (3RD CIR. 1924), CERTIORARI GRANTED 266 U.S. 597, CERTIORARI DISMISSED 270 U.S. 641; JEFFERSON MACARONI CO. V PENNSYLVANIA R. CO., 154 A. 188 (1931).

THE PRINCIPLE OF THESE CASES AND THE SIGNIFICANCE OF THE GBL CONTRACT PROVISION FOR DELIVERY OF THE PROPERTY CONCERNED "IN LIKE GOOD ORDER AND CONDITION" SUPPORT THE POSITION THAT DELIVERY OF FREIGHT IN AN IRREPARABLE CONDITION IS IN EFFECT NO DELIVERY AT ALL. IN SUCH CIRCUMSTANCES THE GBL CANNOT BE "PROPERLY" ACCOMPLISHED, AND THE EXECUTED CONSIGNEE'S CERTIFICATE OF DELIVERY MUST BE CONSIDERED WITH THE EVIDENCE OF THE ACTUAL CONDITION OF THE PROPERTY DELIVERED.

NATIONAL TRAILER CONVOY, INC. AND STRICKLAND TRANSPORTATION CO., INC., INDICATE THAT EQUITABLE PRINCIPLES SUCH AS UNJUST ENRICHMENT ARE NOT INVOLVED IN THESE FREIGHT CHARGE CASES WHICH STRICTLY RELATE TO CONSTRUCTION OF THE GBL CONTRACT. ALTHOUGH YOU CORRECTLY POINT OUT THAT W.A. STACKPOLE MOTOR TRANSPORTATION, INC. V MALDEN SPINNING AND DYEING COMPANY, 263 F.2D 47, 52 (1ST CIR. 1958), STATES THAT "ACCEPTANCE OF DELIVERY OF DAMAGED GOODS AND PAYMENT OF TRANSPORTATION COSTS THEREON CONSTITUTES ACCEPTANCE OF THE SERVICE PROFFERED BY THE CARRIER AND AMOUNTS TO A WAIVER BY THE SHIPPER OF ANY RIGHT HE MIGHT HAVE TO RECOVER FREIGHT," WE DO NOT BELIEVE THE CASE CONTROLLING BECAUSE THE FREIGHT INVOLVED IN THAT CASE WAS NOT ECONOMICALLY VALUELESS, ACTUALLY BEING REPAIRED AND PUT INTO OPERATION, AND THE FREIGHT DID NOT MOVE UNDER A GBL CONTRACT.

ACCORDINGLY, YOUR COMPANY IS NOT ENTITLED TO THE $2,072.41 FREIGHT YOU RECEIVED UNDER GBL A-6242431 AND $402.27 UNDER GBL B-7961821. REFUND OF THOSE AMOUNTS SHOULD BE MADE WITHIN 60 DAYS TO AVOID COLLECTION BY OTHER MEANS.