Matter of: American Van Services, Inc. - Reconsideration File: B-249834.2 Date: September 3, 1993

B-249834.2: Sep 3, 1993

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PROCUREMENT Payment/Discharge Shipment Damages Repairs Carrier's speculation that repair firm on whose estimates carrier's liability for loss/damage to household goods was based is inexperienced does not prove that the estimates or the agency's calculation of the carrier's liability was unreasonable. PROCUREMENT Payment/Discharge Shipment Damages Evidence sufficiency Carrier is not relieved of liability for loss/damage to a shipment of household goods simply because the agency did not inspect the shipment before settling with the member and setting off against the carrier. Agency inspection is intended to protect the government. The carrier still must establish that it was not liable. This amount was set off by the Air Force to recover damages to a retired service member's household goods.

Matter of: American Van Services, Inc. - Reconsideration File: B-249834.2 Date: September 3, 1993

PROCUREMENT Payment/Discharge Shipment Damages Evidence sufficiency The evidence reasonably necessary to establish the measure of in-transit damage to an item of household goods depends on the nature of the item and other facts, and may include the shipper's opinion on the value of loss and damage. PROCUREMENT Payment/Discharge Shipment Damages Repairs Carrier's speculation that repair firm on whose estimates carrier's liability for loss/damage to household goods was based is inexperienced does not prove that the estimates or the agency's calculation of the carrier's liability was unreasonable. PROCUREMENT Payment/Discharge Shipment Damages Evidence sufficiency Carrier is not relieved of liability for loss/damage to a shipment of household goods simply because the agency did not inspect the shipment before settling with the member and setting off against the carrier. Agency inspection is intended to protect the government, not the carrier, which has its own inspection right and opportunity, and the carrier still must establish that it was not liable.

DECISION American Van Services, Inc., requests reconsideration of our decision American Van Services, Inc., B-249834, Feb. 11, 1993, which modified our Claims Group's disallowance of the carrier's claim for a refund of $1,097.77. This amount was set off by the Air Force to recover damages to a retired service member's household goods. We deny American's request.

American obtained the goods for delivery from a nontemporary storage contractor in July 1988, and delivered them shortly thereafter. American disputes its liability for several lost or damaged items with respect to which we affirmed its liability in our previous decision.[1]

In requesting reconsideration, American first argues that the shipper's proof of value for damages to some items was inadequate. American refers to Item 5i of the then-applicable Military Traffic Management Command domestic rate solicitation, which provided that the "[c]arrier may, at its option, require proof of loss or damage claimed." American suggests that much of the damage valuation is based on the shipper's opinion, and points out that, for example, it asked for but was not provided the brand name, model, year of manufacture, or size for a punctured lamp shade.

Item 5i and other portions of item 5 were intended to reflect existing law. Under the law, the shipper establishes a prima facie case of liability against a carrier by offering evidence that an item was tendered to the carrier; that the carrier either did not deliver it or delivered it in a more damaged condition; and the amount of the loss or damage. The burden of proof then shifts to the carrier to show that the loss or damage was caused by an excepted condition relieving it of liability. See item 5d(7). The carrier also must show that it was not negligent. See generally, Missouri Pacific Railroad Co. v. Elmore & Stahl, 377 U.S. 134, 138 (1964).

The evidence reasonably necessary to prove value varies with the nature of the item and other facts. The courts recognize that actual value to the owner of a lost or damaged item (excluding fanciful or sentimental value) is a significant consideration in assessing damages to household goods and other personal property because the used household goods market, to the extent that it exists at all, may not adequately reflect the value of a household or personal item to its owner. Ownership of the property qualifies the owner to give his estimate of what his actual loss was, for evaluation in assessing the measure of damages. See DeSpirito v. Bristol County Water Co., 102 R.I. 50, 227 A.2d 782, 34 A.L.R. 3d 809 (1967); see also Annotation, Valuation Of Wearing Apparel Or Household Goods Kept By Owner for Personal Use, In Action For Loss or Conversion Of, Or Injury To, Such Property, 34 A.L.R. 3d 816 (1970).

Recovery against a carrier generally is initiated only after considering a member's claim against the government, which typically is evaluated using prices from catalogs, information from local merchants, repair estimates, and the shipper's opinion. See Air Force Regulation 112-1, para. 6-2 (1983). Here, the Air Force adjudicator corroborated the shipper's valuation with objective data and his own judgment; we see nothing unreasonable in his decision. American may not be satisfied with the proof provided, but that does not change the fact that the carrier must establish that the agency's assessment of liability was wrong.

American also notes that the record contains no evidence about the experience of the furniture company on whose repair estimates the Air Force relied. While such experience is relevant, American still must establish the unreasonableness of the government's assessment by clear and convincing evidence; a general allegation that the repair estimator lacks experience, by itself, is not sufficient. See Paul Arpin Van Lines, Inc., B-213841, Sept. 18, 1984. If American had a question about the repairman's experience, it could have contacted the firm and sought information about that experience; there is no evidence here that American attempted to do so.

American complains that the Air Force did not inspect the damages. However, while Service regulations[2] anticipate that officials will inspect some incidents of carrier loss or damage, such inspection is incidental to the shipper's claim against the government; is intended to protect the government, not carriers; and is not a precondition for settlement. We are aware of no contractual requirement for an inspection before set-off, for a carrier's protection. As we pointed out in the initial decision, American had the right to inspect the damaged shipment but failed to do so.

Finally, American reargues its positions on improper packing, notice of damage, and other issues. We will deny a request for reconsideration, however, where as here it essentially only restates arguments in the original request for review, and presents no evidence demonstrating an error in fact or law in the prior decision. See Eck Miller Transportation Corp., B-245385.2, May 20, 1992.

American's request for reconsideration is denied.

1. A full description of the items in dispute (along with American's position on its liability for each) is contained in the initial decision.

2. Air Force Regulation 112-1, para. 6-23.