B-235558.5, Apr 29, 1991, 91-1 CPD ***

B-235558.5, Apr 29, 1991, 91-1 CPD ***

PROCUREMENT - Payment/Discharge - Shipment - Carrier liability - Burden of proof DIGEST: 1. Shipper's claim for loss of comic books is denied, except for one carton marked "comics," where the record does not establish that the comics were tendered to the carrier. PROCUREMENT - Payment/Discharge - Shipment - Carrier liability - Amount determination 2.Contractual liability of carrier to government is not limited to the amount the government pays the shipper for loss or damage.

Fogarty Van Lines:

Fogarty Van Lines appeals the Air Force's set off from money due the carrier of $10,000 for loss and damage to a shipment of household goods belonging to Sgt. Gregory A. Wyatt. The shipper had submitted a claim for $24,100.86, which the Air Force approved in the amount of $3,313: the allowed maximum of $3,000 for the loss of comic books allegedly contained in four missing cartons, and $313 for other damage. The Air Force then set off $10,000 from funds due Fogarty, which it determined was the maximum amount of carrier liability for this shipment ($1.25 per pound x 8,000 pounds net weight); the agency intends to give the excess over $3,313 to Sgt. Wyatt.

In appealing this action, Fogarty not only disputes liability for most of the allegedly lost comics, but maintains that the Air Force is without authority to hold the carrier liable for more than the actual amount paid to the shipper for his loss. Fogarty also appeals the agency's use of 8,000 pounds as the weight of this shipment in computing maximum liability inasmuch as the actual net weight of the shipment was 7,200 pounds.

We hold that set off of $3,628.70 is appropriate on this record.

Sgt. Wyatt's shipment included 13 boxes marked "comics." The statement of loss (Form 1840) he filed notes that, at the time of delivery, four inventory items were listed as missing: item #63, books; item #75, books; item #95, cook books; and item #123, comics. In support of his claim for $24,100.86, Sgt. Wyatt filed a sworn statement asserting that he was a long-time collector of comic books, with a collection estimated to consist of over 10,000 comics, for which he had paid in excess of $25,000. In the statement he asserts that valuable comic books were packed in every carton marked "books" or "cook books," as well as in the cartons marked "comics."

Sgt. Wyatt also says that the comic books originally were segregated for transport in his car but "in the confusion of moving, the books were taken by the carriers and loaded onto the truck without my knowledge"; a number of boxes were open when delivered; and he annotated the loss statement to show that comics were missing from most of the open boxes. In addition to the shipper's statement, the file contains letters from friends, relatives and a comic book dealer to the effect that Sgt. Wyatt had a collection of comic books.

In our view, the record does not establish that all the allegedly lost comics were tendered to the carrier, which is the first element in establishing a prima facie case of carrier liability for lost household goods. See Aalmode Transportation Corp., B-240350, Dec. 18, 1990. Sgt. Wyatt's assertion that comic books were packed in every box marked books, comics or cook books is offset by the inventory's specificity in listing books of various sorts: 16 cartons of books; 13 of comics; 1 of cook books; 1 of coloring books; and 1 of books and papers. Also, Sgt. Wyatt does not explain why, in light of his desire to transport the collection himself, he allowed comics to be packed with other books and papers since this increased the number of cartons he would have to haul personally by at least 17 boxes (16/books and 1/cook books). Further, the shipper's statement that boxes were open at time of delivery and so listed on the loss statement is not supported by any language to that effect on that form.

All in all, we do not find Sgt. Wyatt's statement to be persuasive on the issue of the tender of comic books beyond the 13 boxes marked "comics" including, for purposes of his claim, inventory item #123. Thus, while the shipper may well have been a collector of comic books, and tendered comic books to the carrier, the record supports the loss of only one tendered carton of comic books.

The Air Force determined that inventory item #123 contained 140 comic books, which the Air Force found had a then-current value of $3,122.70. The government's payment to the shipper is limited to $3,000, since that is the maximum payment for collections allowed by agency regulations. addition, our Claims Group has determined that the shipper has established a prima facie case for other damage listed to the shipment in the amount of $506, which is $193 more than originally determined for such damage. In sum, a prima facie case for carrier liability in the amount $3,628.70 ($3,122.70 + $506) has been established.

Fogarty also argues that the government's right to recover from the carrier for the loss of comics is limited by the amount initially paid to Sgt. Wyatt on his claim. In the context of the amount originally set-off by the Air Force-- $10,000-- this argument involved more than $6,000; in light of our conclusion above, it involves only $122.70.

We addressed this same issue in American Ensign Van Lines, Inc., B-224827.4, Nov. 21, 1990. We pointed out that a member's claim against the government for loss or damage to personal property shipped incident to service is made pursuant to the Military Personnel and Civilian Employees' Claims Act of 1964, as amended, 31 U.S.C. Sec. 3721. The government's right to recover from the carrier, however, arises from a contract with the firm. We said that there was no legal basis to alter the terms of the contract to limit the obligation to which the carrier agreed based on agency limitations on member recovery from the government under the 1964 Claims Act.

Fogarty's appeal of the setoff of $10,000 therefore is sustained to the extent of $6,371.30 ($10,000 - $3,628.70). The weight issue raised by Fogarty thus need not be addressed, since the proper set-off amount of $3,628.70 is less than Fogarty's maximum liability amount however computed.