B-257502 January 25, 1995

B-257502: Jan 25, 1995

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The Defense Finance & Accounting Service (DFAS) recovered freight charges from your firm because it found that the property was so damaged that recovery of charges was allowable under 49 C.F.R. Each of your letters repeats the same request that DFAS refund the recovered charges because it did not provide documentary evidence proving that each damaged item was irreparably damaged or beyond repair. In that decision we stated that the standard for recovery of freight charges on an item damaged by a carrier is that if an item is beyond repair or renewal. The Army found that the goods were damaged to such an extent that replacement the costs. Our Office will not re-open such a finding without clear and convincing evidence from the carrier that the agency acted unreasonably.

B-257502 January 25, 1995

(no digest)

Ms. Theresa Martin Revenue Control A Olympic Forwarder, Inc. 6605 202nd Street S.W. Lynnwood, WA 98036-5934

Dear Ms. Martin:

We refer to your 12 letters dated May 16, 1994, requesting review of the following claim settlements: Z-2866988-32 (Steven Gooden); Z-2866988-36 (Gene Gladney); Z-2866988-40 (Raul Rodriguez); Z-2866988-43 (Steven Holcombe); Z-2866988-44 (Steven Ehlrich); Z2866988-60 (Charles Garrett); Z-2866988-70 (Ronald Haynes); Z-286698-71 (Ray Johnson); Z-2866988-72 (Jeffrey Shiley); Z-2866988-92 (Peter Loadholt); Z-2866988-97 (Michael Stolle); and Z-2866988-102 (Octavio Perales).

These claims involve damage to the household goods or unaccompanied baggage of service members moving between the United States and a foreign duty assignment. In each case, the Defense Finance & Accounting Service (DFAS) recovered freight charges from your firm because it found that the property was so damaged that recovery of charges was allowable under 49 C.F.R. Sec. 1056.15(b). Each of your letters repeats the same request that DFAS refund the recovered charges because it did not provide documentary evidence proving that each damaged item was irreparably damaged or beyond repair. We affirm all settlements except Z-2866988-60.

The circumstances of each of these claims, except for Z-2866988-60, appear to be indistinguishable from those involved in our decision A Olympic Forwarder. Inc., B-256450, Sept. 16,1994. In that decision we stated that the standard for recovery of freight charges on an item damaged by a carrier is that if an item is beyond repair or renewal, no longer existing in the form tendered to the carrier, or useless for the intended purpose, the freight charges for the item may be recovered from the carrier.

The record in these eleven cases reasonably supports the Army's recoveries of the freight charges. In the adjudication of property damage, the Army found that the goods were damaged to such an extent that replacement the costs, not repair costs, to be used to measure damage. Olympic has not introduced any evidence to the contrary. Our Office will not re-open such a finding without clear and convincing evidence from the carrier that the agency acted unreasonably. See McNamara-Lunz and Warehouses, Inc., 57 Comp.Gen. 415, 419 (1978). We affirm these eleven settlements.

We reverse the settlement Z-2866988-60. DFAS states that the shipment was delivered on October 12,1990, and that it did not dispatch notice of the damage to your firm until January 1991. The time period between these two dates exceeds the 75 days permitted for the reporting of additional damage as an exception to the presumption of clear delivery. Because of this delay, the burden of proof on damages (including the measure of damages) never shifted to your firm for this case.