Matter of: Ogden Transfer & Storage Co. File: B-248182 Date: September 8, 1992

B-248182: Sep 8, 1992

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PROCUREMENT Payment/Discharge Shipment Carrier liability Burden of proof PROCUREMENT Payment/Discharge Shipment Damages Carrier liability Presumptions Damage to goods that passed through the hands of several bailees is presumed to have occurred in the hands of the last one. PROCUREMENT Payment/Discharge Shipment Carrier liability Burden of proof To escape liability for damage on the grounds that goods were improperly packed by the shipper or his agent. A carrier must show not only that the goods were improperly packed but also that the improper packing was the sole cause of damage. PROCUREMENT Payment/Discharge Shipment Damages Notification Failure to notify a carrier of damage to a shipper's goods within 75 days of delivery creates a rebuttable presumption that the carrier is not responsible for the damage.

Matter of: Ogden Transfer & Storage Co. File: B-248182 Date: September 8, 1992

PROCUREMENT Payment/Discharge Shipment Carrier liability Burden of proof PROCUREMENT Payment/Discharge Shipment Damages Carrier liability Presumptions Damage to goods that passed through the hands of several bailees is presumed to have occurred in the hands of the last one, who then has the burden of proving that the damage did not occur while in its custody. PROCUREMENT Payment/Discharge Shipment Carrier liability Burden of proof To escape liability for damage on the grounds that goods were improperly packed by the shipper or his agent, a carrier must show not only that the goods were improperly packed but also that the improper packing was the sole cause of damage. PROCUREMENT Payment/Discharge Shipment Damages Notification Failure to notify a carrier of damage to a shipper's goods within 75 days of delivery creates a rebuttable presumption that the carrier is not responsible for the damage.

DECISION

Ogden Transfer & Storage Co. requests review of a settlement by our Claims Group concerning Ogden's claim for sums set off by the Air Force for loss and damage to a member's household goods. [1] We affirm the Claims Group's settlement, [2] but we find Ogden entitled to an additional $140.77 for items that were not involved in that analysis.

Ogden's primary objection to the settlement is that it is being held liable for loss/damage to goods that were moved several times while in non-temporary storage, with Ogden's participation having been limited to delivering the goods to the member. It is well-established, however, that damage to goods that have passed through the hands of several bailees is presumed to have occurred while the goods were in the custody of the last one. See Air Land Forwarders, B-247425, June 26, 1992. The burden is on the last bailee to show that the damage or loss did not occur while the items were in its custody, or resulted from an excepted cause. Id.

For purposes of this decision, we have defined the lost/damaged items by seven groups. [3]

(1) Ogden was held liable for damage to the top of a wicker basket (item 3Y, $50), and to a chair (item 57Y, $60). However, the record includes a rider executed when the shipment left a warehouse that describes the basket as already damaged on top and the chair as substantially damaged. The only additional damage after pick-up by Ogden appears to have been the loss of two casters, for which Ogden has offered $10. In view of the rider, Ogden should only be held liable for the casters, and therefore is entitled to a refund of $100.

(2) Ogden complains that it was held liable ($68.40) for two lampshades the member claimed were missing from inventory item 3R, a carton labeled as containing books and which Ogden says was too small to contain lampshades. The inventory, however, includes an item 003R, "lampshade," annotated as missing. Since this evidently is the carton in issue, Ogden's claim for reimbursement is denied.

(3) Ogden was charged for a light (item 55R, $8.76) and a model (item 184R, $18.02) that the Air Force Claim Analysis Chart notes appeared to have been poorly packed. Since Ogden did not pack the items, it claims this notation is sufficient to show that it is not liable for the damage.

In order to escape liability, Ogden bears the burden of proving that faulty packing by another party was the sole cause of damage to the goods. McNamara-Lunz Vans and Warehouses, Inc., 57 Comp.Gen. 415 (1978); Cartwright Van Lines, Inc., B-192785, Oct. 11, 1979. We have held that a notation on a Claim Analysis Chart is sufficient to show improper packing; however, additional evidence that the carton was delivered in good condition, thus showing that the carrier handled it carefully, is necessary to show that improper packing was the sole cause of damage. 46 Comp.Gen. 740 (1967); Cartwright Van Lines, Inc., supra. Ogden has not presented such evidence here.

(4) Ogden was held liable for a piece missing from a figurine (item 60R, $85.10) (a violin from a porcelain clown), which the carrier claims should have been found in the package if it had broken off in transit; since there is no indication in the record that it was found, Ogden argues that the missing piece must not have been tendered. We do not agree. The piece appears to have been an integral part of the item, and we do not think its apparent absence from the carton establishes that it was not tendered with the figurine.

(5) Ogden was held liable for extensive damage to a silver service set (item 58R, $273.75). Ogden claims that there is no proof of damage because there is no estimate for repairs, and complains that the set was repaired before the government inspection was made.

We have held that a paid repair bill is adequate evidence of the measure of damages. Ryder Truck Lines, B-213839, Aug. 29, 1984. Further, repair before government inspection does not relieve a carrier of liability. In this respect, we note that Ogden itself waived its right to inspect. Pursuant to the Military-Industry Memorandum of Understanding, that right is deemed waived after the passage of 45 days after the timely dispatch of notice of the damage. The silver service set was repaired well beyond that period.

(6) Ogden claims it was not timely notified of damage to a game table chair (item 53Y), and a framed picture (item 128R), for which the carrier was held liable in the amounts of $20 and $20.77, respectively.

Ogden is entitled to a refund. Under the Military-Industry Memorandum of Understanding, the carrier is to be notified of any damages within 75 days of the date of delivery. If no such notice is dispatched, the damage is presumed not to have occurred while the goods were in the carrier's possession. Our review of the record discloses no notification to Ogden of the damage to these items within the required timeframe.

(7) Finally, Ogden complains that even though the Claims Group relieved Ogden of liability for the loss of a motorbike (item 181Y), it only recommended a refund of $344.47, half the amount set off by the Air Force. Our review, however, shows that although the Air Force initially set off the larger amount, as the full value of the motorbike, it later decided the value should have been depreciated by 50 percent and reduced the set-off accordingly.

In sum, we find Ogden entitled to a refund of $140.77, representing $100 total for the wicker basket and the chair, and $40.77 total for the game table chair and the framed picture.

Date: To: Director, Claims Group/GGD - Sharon Green From: General Counsel - James F. Hinchman

Subject: Ogden Transfer & Storage Co. (Z-2867032) (B-248182)

Returned is Claims File Z-2867032 and a copy of our decision affirming your settlement, but finding the carrier entitled to an additional refund.

1. Ogden delivered the shipment pursuant to Government Bill of Lading QP-783,361.

2. The Claims Group found Ogden entitled to a refund of $359.41 from the set-off of $5,885.75.

3. The Claims Group did not consider the first and sixth groups. Our findings for the other five groups are consistent with the Claims Group's settlement.