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B-193007, NOVEMBER 9, 1978

B-193007 Nov 09, 1978
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DIGEST: CARRIER'S DELIVERY OF SEVERAL ITEMS ON A FREE ASTRAY BASIS AT ONE DESTINATION DOES NOT IN THIS CASE EXPLAIN SHORTAGE OF A DIFFERENT ITEM AT ANOTHER DESTINATION AND IS NOT ENOUGH TO REBUT THE PRESUMPTION THAT THE SHORTAGE WAS DUE TO CARRIER NEGLIGENCE. THE AMOUNT CLAIMED WAS COLLECTED BY ADMINISTRATIVE SETOFF FROM ST. K-5811485 WAS DESCRIBED AS ONE CRATE "MACHINES NOI SU LTL IN CRATES. WEIGHT 260 POUNDS" AND WAS TO BE DELIVERED TO MOUNTAIN HOME. THE PLACE WHERE ANOTHER OF THE SIX SHIPMENTS WAS DELIVERED. DEMAND WAS MADE ON ST. K-5811485 WAS DELIVERED TO IT IN GOOD CONDITION BY THE NATIONAL GUARD. THAT IT WAS NOT DELIVERED AT MOUNTAIN HOME AND THAT IT CONTAINED A PIECE OF MACHINERY VALUED AT $1.

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B-193007, NOVEMBER 9, 1978

DIGEST: CARRIER'S DELIVERY OF SEVERAL ITEMS ON A FREE ASTRAY BASIS AT ONE DESTINATION DOES NOT IN THIS CASE EXPLAIN SHORTAGE OF A DIFFERENT ITEM AT ANOTHER DESTINATION AND IS NOT ENOUGH TO REBUT THE PRESUMPTION THAT THE SHORTAGE WAS DUE TO CARRIER NEGLIGENCE.

ST. JOHNSBURY TRUCKING CO., INC.:

ST. JOHNSBURY TRUCKING CO., INC. (ST. JOHNSBURY), REQUESTS A REVIEW OF OUR CLAIMS DIVISION'S SETTLEMENT CERTIFICATE DATED SEPTEMBER 1, 1978 (CLAIM NO. Z-160356(1)), IN WHICH THE DIVISION DISALLOWED ST. JOHNSBURY'S CLAIM FOR $1,077. 4 C.F.R. 30.1(B) (1978). THE AMOUNT CLAIMED WAS COLLECTED BY ADMINISTRATIVE SETOFF FROM ST. JOHNSBURY TO LIQUIDATE THE GOVERNMENT'S CLAIM FOR THE VALUE OF ONE CRATE LOST FROM A SHIPMENT TENDERED TO ST. JOHNSBURY ON GOVERNMENT BILL OF LADING (GBL) NO. K-5811485 FOR TRANSPORTATION FROM BURLINGTON, VERMONT, TO MOUNTAIN HOME AIR FORCE BASE, IDAHO (MOUNTAIN HOME), IN APRIL 1975.

ON APRIL 24, 1975, ST. JOHNSBURY PICKED UP SIX SHIPMENTS UNDER SIX DIFFERENT GBLS AT THE VERMONT AIR NATIONAL GUARD (NATIONAL GUARD) IN BURLINGTON, VERMONT. THE SHIPMENT ON GBL NO. K-5811485 WAS DESCRIBED AS ONE CRATE "MACHINES NOI SU LTL IN CRATES, TCN (TRANSPORTATION CONTROL NUMBER) FE 4897 5027 0339, WEIGHT 260 POUNDS" AND WAS TO BE DELIVERED TO MOUNTAIN HOME. MOUNTAIN HOME NEVER RECEIVED THE SHIPMENT AND FILED A DISCREPANCY IN SHIPMENT CONFIRMATION ON JUNE 16, 1975, AND A DISCREPANCY IN SHIPMENT REPORT ON JULY 10, 1975. THE AIR FORCE ATTEMPTED BUT FAILED TO LOCATE THE MISSING SHIPMENT IN BOTH THE NATIONAL GUARD STATION AND THE DEFENSE CONSTRUCTION SUPPLY CENTER (SUPPLY CENTER) IN COLUMBUS, OHIO, THE PLACE WHERE ANOTHER OF THE SIX SHIPMENTS WAS DELIVERED. ON JANUARY 5, 1976, DEMAND WAS MADE ON ST. JOHNSBURY FOR $1,077 IN DAMAGES, AND ON JUNE 3, 1976, AFTER IT REFUSED TO REFUND, THE GOVERNMENT SET OFF THAT AMOUNT FROM MONEY OTHERWISE DUE ST. JOHNSBURY.

THE CARRIER DOES NOT DISPUTE THE FACTS THAT THE SHIPMENT OF ONE CRATE OR CARTON ON GBL NO. K-5811485 WAS DELIVERED TO IT IN GOOD CONDITION BY THE NATIONAL GUARD, THAT IT WAS NOT DELIVERED AT MOUNTAIN HOME AND THAT IT CONTAINED A PIECE OF MACHINERY VALUED AT $1,077. THESE FACTS ESTABLISH A PRIMA FACIE CASE OF CARRIER LIABILITY FOR THE LOSS OF THE CRATE. MISSOURI PACIFIC R.R. V. ELMORE & STAHL, 377 U.S. 134 (1964). ST. JOHNSBURY CONTENDS, HOWEVER, THAT IT IS NOT LIABLE FOR THE LOST CRATE BECAUSE IT DELIVERED THE CRATE TO THE SUPPLY CENTER IN OHIO.

ST. JOHNSBURY ALLEGES THAT ON APRIL 24, 1975, IT PICKED UP FROM THE NATIONAL GUARD SIX SHIPMENTS ON SIX GBLS. FOUR OF THE SIX SHIPMENTS CONTAINED A TOTAL OF 13 PIECES OR CARTONS OF FREIGHT. OF THESE 13, ONE CARTON WAS TO BE TRANSPORTED TO MCCLELLAN AIR FORCE BASE, CALIFORNIA (MCCLELLAN), UNDER GBL NO. K-5811480; SEVEN CARTONS (ACTUALLY SIX CARTONS AND ONE TUBE) WERE DESTINED TO THE SUPPLY CENTER IN OHIO UNDER GBL NO. K- 5811482; FOUR CARTONS WERE TO BE TRANSPORTED TO ROBINS AIR FORCE BASE, GEORGIA (ROBINS), UNDER GBL NO, K-5811483; AND ONE CARTON WAS TO BE TRANSPORTED TO MOUNTAIN HOME UNDER GBL NO. K-5811485. ST. JOHNSBURY ALLEGES THAT THE SIX CARTONS TRANSPORTED UNDER GBL NOS. K 5811480 (ONE CARTON), K-5811483 (FOUR CARTONS) AND K-5811485 (ONE CARTON) DID NOT HAVE THE CONSIGNEES' NAMES STENCILLED ON THEM; THEY WEIGHED A TOTAL OF 675 POUNDS.

THE CARRIER STATES THAT ON APRIL 25, 1975, IT TRANSFERRED TO INTERSTATE MOTOR FREIGHT, ITS CONNECTING CARRIER, THE SEVEN CARTONS DESCRIBED ON GBL NO. K-5811482 AND THAT THOSE SEVEN CARTONS, WEIGHING A TOTAL OF 253 POUNDS, WERE DELIVERED WITHOUT EXCEPTION TO THE SUPPLY CENTER IN OHIO. (THE RECORD CONTAINS A COPY OF INTERSTATE'S DELIVERY RECEIPT AND A COPY OF THE ORIGINAL GBL; NEITHER SHOW ANY EXCEPTIONS AT DELIVERY.)

ON APRIL 29, 1975, ST. JOHNSBURY DISCOVERED AT ITS BOSTON TERMINAL SIX CARTONS CLEARLY MARKED FOR THE SUPPLY CENTER IN OHIO. IT STATES THAT THEY SHOULD HAVE BEEN DELIVERED ON GBL NO. K-5811482 AND THAT IT CHECKED WITH INTERSTATE, WHO STATED THAT THE SHIPMENT OF SEVEN CARTONS DELIVERED WITHOUT EXCEPTION TO THE SUPPLY CENTER UNDER GBL NO. K 5811482 ACTUALLY INCLUDED THE SIX CARTONS THAT DID NOT HAVE THE CONSIGNEES' NAMES STENCILLED ON THEM, INSTEAD OF THE SIX CARTONS (OF THE SEVEN PIECES) SHOWN ON THAT GBL. ONE OF THESE CARTONS, ST. JOHNSBURY CLAIMS, WAS THE ONE DESTINED TO MOUNTAIN HOME. (OTHER THAN ST. JOHNSBURY'S STATEMENT, NOTHING IN THE RECORD SUPPORTS THESE FACTS.)

INTERSTATE DELIVERED SIX CARTONS TO THE SUPPLY CENTER ON APRIL 29, 1975, ON A FREE ASTRAY BASIS (CONFIRMED BY THE RECORD BUT NO EVIDENCE SHOWS THAT THEY WERE THE SIX CORRECTLY MARKED CARTONS) BUT WAS UNABLE TO RETRIEVE THE SIX INCORRECTLY MARKED CARTONS FROM THE CENTER. ST. JOHNSBURY STATES THAT SINCE 13 CARTONS RECEIVED FROM THE NATIONAL GUARD AS FOUR SEPARATE SHIPMENTS MOVING ON FOUR SEPARATE GBLS (BUT DESTINED TO FOUR DIFFERENT LOCATIONS) WERE DELIVERED TO THE SUPPLY CENTER IN OHIO, IT SHOULD BE RELIEVED OF LIABILITY FOR THE SHIPMENT NOT RECEIVED AT MOUNTAIN HOME.

THERE ARE FACTUAL DISCREPANCIES IN ST. JOHNSBURY'S DEFENSE.

THE SHIPMENT TRANSPORTED TO THE SUPPLY CENTER IN OHIO UNDER GBL NO. K- 5811482 CONSISTED OF SEVEN PIECES (ACTUALLY SIX CARTONS AND ONE TUBE), WEIGHING A TOTAL OF 253 POUNDS. IF, AS CONTENDED, THE SIX UNMARKED PIECES HAD BEEN SUBSTITUTED FOR THE SIX CARTONS OF THE SEVEN PIECES, THE SHIPMENT ON THAT GBL WOULD HAVE WEIGHED OVER 675 POUNDS. YET, INTERSTATE'S DELIVERY RECEIPT AND THE GBL DO NOT SHOW THAT ANY EXCEPTIONS WERE TAKEN AT TIME OF DELIVERY.

ALSO, IF THE SIX UNMARKED PIECES HAD BEEN SUBSTITUTED FOR SIX OF THE SEVEN PIECES DELIVERED ON GBL NO. K-5811482, THE SIX OF THE SEVEN PIECES WOULD HAVE BEEN THE SIX CORRECTLY MARKED PIECES DISCOVERED IN BOSTON AND DELIVERED BY INTERSTATE ON A FREE ASTRAY BASIS. HOWEVER, THE FREE ASTRAY SHIPMENT WEIGHED 200 POUNDS WHILE THE SIX CARTONS IN THE SEVEN-PIECE SHIPMENT DESCRIBED ON GBL NO. K-5811482 WEIGHED A TOTAL OF 242 POUNDS. FURTHERMORE, THE DELIVERY RECEIPT FOR THE FREE ASTRAY SHIPMENT DESCRIBES THE SHIPMENT AS "6 PC EXHAUST POT COOLERS HEAT EXC" WHICH IS NOT ENTIRELY CONSISTENT WITH THE DESCRIPTION OF SIX OF THE SEVEN PIECES EARLIER DELIVERED ON GBL NO. K-5811482.

ONCE A SHIPPER HAS PROVED A PRIMA FACIE CASE, THE BURDEN OF PROOF SHIFTS TO THE CARRIER AND REMAINS THERE. SUPER SERVICE MOTOR FREIGHT CO. V. UNITED STATES, 350 F.2D 541, 543 (6TH CIR. 1965). SEE, ALSO, 4 C.F.R. 31.7 (1978). THE ALLEGATIONS BY ST. JOHNSBURY THAT THE ITEMS DELIVERED TO THE SUPPLY CENTER IN OHIO ACCOUNT FOR THE SHORTAGE OF THE ITEM DESTINED TO MOUNTAIN HOME IS NOT ENOUGH IN THIS CASE TO REBUT THE PRESUMPTION THAT THE SHORTAGE WAS DUE TO THE NEGLIGENCE OF THE CARRIERS. SEE B-190147, NOVEMBER 15, 1977.

A DISCREPANCY IN SHIPMENT REPORT WAS SENT TO THE SUPPLY CENTER IN OHIO, ALONG WITH A LETTER FROM THE DEPARTMENT OF THE AIR FORCE ACCOUNTING AND FINANCE CENTER REQUESTING ASSISTANCE IN LOCATING THE ITEM NOT DELIVERED TO MOUNTAIN HOME. THE SUPPLY CENTER CHECKED ITS STORAGE AREA AND RECORDS OF ALL SHIPMENTS RECEIVED BETWEEN JANUARY AND JULY 1975 AND ADVISED THAT IT HAD NO RECORD OF THE MISSING ITEM. WE ACCEPT THIS STATEMENT OF FACT FURNISHED BY THE SUPPLY CENTER IN THE ABSENCE OF "PLAIN AND CONVINCING" PROOF TO THE CONTRARY. 48 COMP.GEN. 638, 644 (1969).

ST. JOHNSBURY ASKED US TO DETERMINE WHETHER A DISCREPANCY IN SHIPMENT REPORT WAS EVER FILED ON THE SHIPMENT OF ONE CARTON TO MCCLELLAN UNDER GBL NO. K-5811480 AND ON THE SHIPMENT OF FIVE CARTONS TO ROBINS UNDER GBL NO. K-5811485, TWO OF THE THREE SHIPMENTS ALLEGEDLY DELIVERED IN ERROR TO THE SUPPLY CENTER IN OHIO. WE WERE INFORMED BY THE NATIONAL GUARD THAT DISCREPANCY REPORTS HAD BEEN FILED ON THE TWO SHIPMENTS BUT THAT THE ONE ON THE SHIPMENT TO ROBINS HAD BEEN CANCELLED (PERHAPS INDICATING DELIVERY TO THE CORRECT DESTINATION) WHILE THE ONE ON THE SHIPMENT TO MCCLELLAN REMAINS IN EFFECT. THIS INFORMATION HAS NO DIRECT BEARING ON THE ITEM NOT DELIVERED AT MOUNTAIN HOME BUT DOES SHOW THAT IF THE SUPPLY CENTER IN OHIO HAD RECEIVED THAT ITEM, IT PROBABLY WOULD HAVE FORWARDED IT TO THE CORRECT DESTINATION.

IN ITS REQUEST FOR REVIEW, ST. JOHNSBURY IN EFFECT ALSO QUESTIONS THE LEGALITY OF THE GOVERNMENT'S SETOFF BY REFERRING TO THE DISTRICT COURT RULING IN GARRETT FREIGHT LINES V. UNITED STATES, USDC D. UTAH NO. NC-75- 5, AUGUST 16, 1976. HOWEVER, THE DISTRICT COURT RULING WAS OVERTURNED BY THE TENTH CIRCUIT COURT OF APPEALS. AMONG OTHER THINGS, THE COURT OF APPEALS STATED THAT " . . . THE GOVERNMENT HAD A RIGHT TO WITHHOLD PAYMENTS TO GARRETT PREPARATORY TO ASSERTING ITS RIGHT OF SETOFF IN THIS LITIGATION." GARRETT FREIGHT LINES, INC. V. UNITED STATES, CIVIL NO. 76-2078 (10TH CIR., JUNE 21, 1978).

ST. JOHNSBURY ALSO REQUESTS INFORMATION CONCERNING OTHER MEASURES TO OBTAIN RELIEF. IF THE CARRIER HAS FACTS AND CIRCUMSTANCES NOT PREVIOUSLY CONSIDERED, IT MAY REQUEST THE COMPTROLLER GENERAL TO RECONSIDER THIS DECISION. 31 COMP.GEN. 75 (1951). THE CARRIER MAY ALSO BRING AN ACTION IN A DISTRICT COURT, 28 U.S.C. 1346(A) (1976), OR IN THE UNITED STATES COURT OF CLAIMS. 28 U.S.C. 1491 (1976).

OUR CLAIMS DIVISION'S SETTLEMENT CERTIFICATE DATED SEPTEMBER 1, 1978, IS NOT OTHERWISE SHOWN TO BE ERRONEOUS AND IS SUSTAINED.

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