B-198906.OM, OCT 20, 1980

B-198906.OM: Oct 20, 1980

Additional Materials:

Contact:

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

 

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

PRECIS-UNAVAILABLE CHANDLER TRAILER CONVOY INC.: ATTACHED ARE A LETTER OF MAY 19. WAS 70 FEET LONG AND FOR 8 FEET OF ITS LENGTH IT WAS 12 FEET WIDE WHEN ITS LIVING ROOM TILT-OUT WAS EXTENDED AND ASSEMBLED AFTER TRANSPORTATION. THE MOBILE HOME WAS TRANSPORTED 554 MILES AND UPON DELIVERY ON AUGUST 12. CHANDLER WAS PAID $753.20 FOR THE LINE-HAUL TRANSPORTATION AND $237.50 FOR BLOCKING AND UNBLOCKING. WAS ALLOWED BY THE ARMY UNDER AUTHORITY OF 31 U.S.C. 241 AND CHAPTER 11 OF ARMY REGULATION 27 20. THE BASIS FOR THE AMOUNT OF THE ARMY'S CLAIM WAS THE REPAIRMAN'S COST ESTIMATE. WHICH WAS PRESENTED BY THE MEMBER IN SUPPORT OF HIS CLAIM AGAINST THE GOVERNMENT UNDER THE CLAIMS ACT. HOURS OF LABOR AND LABOR COSTS ARE AS FOLLOWS: COST OF HOURS OF COST OF DESCRIPTION OF WORK PARTS LABOR LABOR FN1 1.

B-198906.OM, OCT 20, 1980

PRECIS-UNAVAILABLE

CHANDLER TRAILER CONVOY INC.:

ATTACHED ARE A LETTER OF MAY 19, 1980, OF CHANDLER TRAILER CONVOY INC. (CHANDLER) AND FILE 77-03-10-0876 OF THE U. S. ARMY CLAIMS SERVICE. CHANDLER HAS FILED A CLAIM TO RECOVER $1,827.30 THAT HAD BEEN SET OFF BY THE ARMY CLAIMS SERVICE TO SATISFY ITS CLAIM AGAINST CHANDLER. THE CLAIM AROSE BECAUSE OF DAMAGE TO A MOBILE HOME BELONGING TO STAFF SERGEANT CHARLES E. LITTLES WHICH ALLEGEDLY OCCURRED DURING TRANSPORTATION FROM MYRTLE BEACH, SOUTH CAROLINA, TO FORT RUCKER, ALABAMA, OR DURING PERFORMANCE OF ADDITIONAL SERVICES AT DESTINATION.

THE RECORD SHOWS THAT ON AUGUST 10, 1977, THE GOVERNMENT TENDERED A 1974 MOBILE HOME TO CHANDLER ON GOVERNMENT BILL OF LADING (GBL) M 0883432. WAS 70 FEET LONG AND FOR 8 FEET OF ITS LENGTH IT WAS 12 FEET WIDE WHEN ITS LIVING ROOM TILT-OUT WAS EXTENDED AND ASSEMBLED AFTER TRANSPORTATION.

THE GBL INDICATES THAT WHEN CHANDLER'S DRIVER RECEIVED THE UNIT HE COMPLETED A PRE-MOVE INSPECTION RECORD INDICATING THAT HE INSPECTED MAJOR COMPONENTS OF THE UNIT AND FOUND NO EXISTING DAMAGE TO THE EXTERIOR OR INTERIOR. THE MOBILE HOME WAS TRANSPORTED 554 MILES AND UPON DELIVERY ON AUGUST 12, 1977, CHANDLER'S DRIVER EXTENDED AND ASSEMBLED THE TILT-OUT ROOM AND BLOCKED THE UNIT; THE MEMBER SIGNED THE GBL WITHOUT EXCEPTION. FOR THESE SERVICES, CHANDLER WAS PAID $753.20 FOR THE LINE-HAUL TRANSPORTATION AND $237.50 FOR BLOCKING AND UNBLOCKING, AMONG OTHER CHARGES.

ON AUGUST 18, 1977, THE TRANSPORTATION OFFICER AT FORT RUCKER, BASED ON AN INSPECTION OF THE MOBILE HOME ON AUGUST 17 (5 DAYS AFTER DELIVERY), GAVE NOTICE TO CHANDLER OF THE FOLLOWING DISCREPANCIES:

1. TILT-OUT ROOM IMPROPERLY ASSEMBLED - FLOOR AND SIDES NOT EVEN WITH MAIN UNIT, LEAVING GAPS AROUND ROOF AND SIDES; 2. SPRING BRACKETS BENT AND BOLTS MISSING ON RIGHT AND LEFT SIDES; 3. SUPPORTS BENT UNDER TILT-OUT ROOM; 4. METAL SPLIT ON SIDE OF TILT-OUT ROOM; 5. FRAME DENTED AND BENT; 6. SCREEN DOOR FRAME WARPED; 7. VACUUM OPERATED DOOR CLOSER DETACHED; 8. MOLDING BROKEN ON INSIDE OF TRAILER.

BASED ON A CONTRACTOR'S ESTIMATE OF THE COST TO REPAIR THE UNIT THE MEMBER FILED A CLAIM WITH THE ARMY FOR $1,827.30 UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. 240-243 (1976). ON SEPTEMBER 21, 1977, THE ENTIRE AMOUNT CLAIMED, $1,827.30, WAS ALLOWED BY THE ARMY UNDER AUTHORITY OF 31 U.S.C. 241 AND CHAPTER 11 OF ARMY REGULATION 27 20, AS DAMAGE TO PERSONAL PROPERTY INCIDENT TO THE CLAIMANT'S SERVICE. AS SUBROGEE, THE ARMY FILED A CLAIM (NO. 77-03-10-0876) FOR THE SAME AMOUNT AGAINST CHANDLER FOR DAMAGE TO THE MOBILE HOME.

THE BASIS FOR THE AMOUNT OF THE ARMY'S CLAIM WAS THE REPAIRMAN'S COST ESTIMATE, WHICH WAS PRESENTED BY THE MEMBER IN SUPPORT OF HIS CLAIM AGAINST THE GOVERNMENT UNDER THE CLAIMS ACT. IN ABBREVIATED FORM, THE DESCRIPTION OF REPAIR WORK, THE COST OF PARTS, HOURS OF LABOR AND LABOR COSTS ARE AS FOLLOWS:

COST OF HOURS OF COST OF

DESCRIPTION OF WORK PARTS LABOR LABOR FN1

1. REMOVE AND REPLACE 3 AXLES AND WHEELS - 8 $100

2. REMOVE AND REPLACE 3 SETS OF SPRINGS - 4 50

3. REPLACE EQUALIZER BRACKETS $ 20 4 50

4. REALIGN AND TRUE AXLES AND SPRINGS - 4 50

5. REPLACE ONE 48" X 72" SHEET OF METAL 16.80 3 37.50

6. REPLACE 36' FLASHING AROUND TILT-OUT 72 4 50

7. REPLACE DOOR COMBINATIONS 175 4 50

8. REPLACE OUTRIGGERS UNDER TILT-OUT 15 3 37.50

9. REPLACE TILT-OUT CEILING 67.50 8 100

10. REPLACE TILT-OUT FLOOR HINGES 24 3 37.50

11. REPLACE BOTTOM OUTSIDE CORNERS OF TILT-OUT 16 3 37.50

12. REPLACE INSIDE TRIM AROUND TILT-OUT 60 6 75

13. REPAIR PANELS -4 50

14. REPAIR WINDOW MOLDING - 2 25

15. WINDOW - 3 37.50

16. REMOVE AND REPLACE TILT-OUT FLOOR - 8 100

17. REPLACE 12' OF TRIM AND COLUMN 45 4 50

18. PULL OUT AND RETURN TILT-OUT FOR REPAIRS 250 - -

19. REPAIR SEWER PIPE 20 4 50

20. JACK UP AND LEVEL TRAILER - 5 62.50

TOTALS COMPUTED BY REPAIRMAN: PARTS $ 709.72 FN2

LABOR 1,075

TAX 42.58

TOTAL $1,827.30

CHANDLER DENIED LIABILITY, IN EFFECT, CONTENDING THAT THE REPAIRS SUPPORTING THE MEMBER'S CLAIM AGAINST THE ARMY WERE NOT THE RESULT OF DAMAGE CAUSED BY THE CARRIER, AND IF THE REPAIRS WERE NECESSARY, THEY RESULTED FROM DEFICIENT DESIGN OF THE UNIT AND THE TILT-OUT ROOM. IN THE ABSENCE OF PAYMENT, THE ARMY DEDUCTED $1,827.30 IN FEBRUARY 1980, FROM MONIES OTHERWISE DUE CHANDLER. WHEN THE ARMY DENIED CHANDLER'S CLAIM FOR REFUND THE CLAIM WAS PRESENTED HERE UNDER 31 C.F.R. PART 30.

CHANDLER CONTENDS THAT IT HAD NO ACCIDENT WITH THE UNIT AND DISCLAIMS ANY RESPONSIBILITY FOR DESIGN DEFECTS, VIZ., WITH THE AXLES, WHEELS, SPRINGS AND FRAME. AS TO THE TILT-OUT ROOM, IT ASSERTS THAT DESIGN DEFECTS INHIBIT SATISFACTORY EXTENSION AND REASSEMBLY AFTER TRANSPORTATION. VIEW OF ITS OPINION THAT THE CLAIM IS GROUNDLESS, CHANDLER REQUESTS THAT THIS OFFICE CONDUCT AN INVESTIGATION OF THE MATTER. FURTHER, THE CARRIER QUESTIONS VALIDITY OF THE CLAIM IN THAT NOTICE OF DAMAGE WAS NOT GIVEN UNTIL SEVERAL DAYS AFTER DELIVERY.

WITH RESPECT TO CHANDLER'S ASSERTION THAT NO DISCREPANCY WAS NOTED UNTIL AFTER ITS DRIVER DEPARTED, WE POINT OUT THAT UNDER THE TERMS AND CONDITIONS GOVERNING THE USE OF GBLS, AS SET FORTH IN 41 C.F.R. 101 41.302.3, USUAL COMMERCIAL NOTICE REQUIREMENTS ARE WAIVED; INSTEAD, THE CARRIER IS ENTITLED TO PROMPT NOTICE OF LOSS OR DAMAGE; A CONCEPT GOVERNED BY DUE PROCESS DICTATES OF FUNDAMENTAL FAIRNESS. SEE B-189152, JULY 8, 1977; WE BELIEVE THAT UNDER THE CIRCUMSTANCES, CHANDLER RECEIVED PROMPT NOTICE. THE RECORD INDICATES THAT DELIVERY WAS COMPLETED DURING DARKNESS, AN INSPECTION WAS MADE 5 DAYS LATER, AND NOTICE OF DAMAGE WAS DISPATCHED WITHIN 6 DAYS OF DELIVERY.

IN REGARD TO CHANDLER'S RECOMMENDATION THAT GAO DISPATCH ITS EMPLOYEES TO INVESTIGATE THE ALLEGED DAMAGE TO THE MOBILE HOME, WE POINT OUT THAT CLAIMS ARE CONSIDERED UNDER PART 30 OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS ON THE BASIS OF THE WRITTEN RECORD ONLY, AND NOT ON THE BASIS OF PERSONAL INVESTIGATIONS. SEE B-196686, JANUARY 17, 1980; SEE ALSO 48 COMP.GEN. 638 (1969).

CRUCIAL TO RESOLUTION OF THE CLAIM IS THE DISTINCTION IN THE STANDARDS BY WHICH THE GOVERNMENT'S LIABILITY IS DETERMINED FOR LOSS AND DAMAGE TO PERSONAL PROPERTY INCIDENT TO SERVICE UNDER 31 U.S.C. 241, AND THE CARRIER'S LIABILITY UNDER SECTION 20(11) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20(11), MADE APPLICABLE TO MOTOR COMMON CARRIERS UNDER 49 U.S.C. 319. SEE B-189152, JULY 8, 1977.

FOR A SHIPPER TO ESTABLISH A PRIMA FACIE CASE OF CARRIER LIABILITY, THE GOVERNMENT MUST SHOW THAT THE GOODS WERE TENDERED TO THE CARRIER AT ORIGIN IN GOOD CONDITION, RECEIVED FROM THE CARRIER AT DESTINATION IN DAMAGED CONDITION, AND THE AMOUNT OF DAMAGES. B-193432, JUNE 1, 1979.

ALL OF THE DISCREPANCIES STATED ON THE INSPECTION REPORT, WITH THE EXCEPTION OF ONE, MAY ESTABLISH DAMAGED CONDITIONS AT TIME OF DELIVERY BY THE CARRIER. HOWEVER, THE STATEMENT CONCERNING THE CONDITION OF THE TILT- OUT ROOM ESTABLISHES NOTHING AS TO DAMAGE; IT ALLEGES SIMPLY THAT THE TILT -OUT ROOM WAS IMPROPERLY ASSEMBLED. WITH THE ELEMENT OF DAMAGE ABSENT, THIS ITEM HAS NO PLACE IN A LOSS AND DAMAGE CLAIM, BEING MORE IN THE NATURE OF A CLAIM FOR UNEARNED TRANSPORTATION CHARGES. OF THE REMAINING ITEMS OF DAMAGE SHOWN ON THE INSPECTION REPORT, THE COST OF REPAIRS ESTIMATE ESTABLISHES THE QUANTUM OF DAMAGE ONLY AS TO TWO ITEMS. WE FIND THAT WITH THE EXCEPTION OF THE SPRING BRACKETS (WHICH ARE IDENTIFIED AS EQUALIZER BRACKETS ON THE COST ESTIMATE) AND TWO OUTRIGGERS THE ITEMIZED COSTS SHOWN ON THE REPAIR ESTIMATE ARE NOT SHOWN TO BE ATTRIBUTABLE TO THE DAMAGE DESCRIBED ON THE INSPECTION REPORT. WE HELD, IN PART, IN B-190474, OCTOBER 23, 1978, THAT ONLY THOSE COSTS OF REPAIR ATTRIBUTABLE TO THE DAMAGE CAUSED BY THE CARRIER CAN BE CONSIDERED AS THE LATTER'S RESPONSIBILITY. THE REPAIR ESTIMATE SUGGESTS THAT MOST OF THE ITEMS ARE FOR NORMAL MAINTENANCE AFTER TRANSPORTATION, WHICH ARE FOR ALLOWANCE TO THE CARRIER. SEE 55 COMP.GEN. 1209, 1214 (1976).

AS TO THE SPRING BRACKETS ($70) AND OUTRIGGERS ($52.50), THERE APPEARS TO BE A PRIMA FACIE CASE OF LIABILITY. THE ALLEGATION THAT THE UNIT WAS NOT INVOLVED IN AN ACCIDENT, EVEN IF PROVEN, IS INSUFFICIENT TO ESTABLISH AN EXCEPTION TO THE CARRIER'S LIABILITY. SEE 55 COMP.GEN. 1209, 1213, SUPRA. IN THAT DECISION WE HELD THAT THE CARRIER COULD NOT EXEMPT ITSELF FROM LIABILITY FOR DAMAGE TO SPRINGS, FRAME OR OTHER COMPONENTS OF THE UNDERCARRIAGE.

SINCE THE GOVERNMENT CAN NOT ESTABLISH A PRIMA FACIE CASE OF CARRIER LIABILITY FOR DAMAGE TO ANY ITEMS OTHER THAN THE BRACKETS AND OUTRIGGERS, A SETTLEMENT SHOULD BE ISSUED ALLOWING CHANDLER $1,704.80 OF ITS CLAIM FOR $1,827.30.

FN1 BASED ON $12.50 PER HOUR

FN2 ITEMIZED COST OF PARTS DOES NOT RECONCILE WITH TOTAL