B-148514, MAY 9, 1962

B-148514, MAY 9, 1962

TO HALL'S MOTOR TRANSIT COMPANY:

BY YOUR LETTER OF FEBRUARY 19, 1962, HALL'S CLAIM NO. 4990-60, YOU PROTEST THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF $312.33. THIS AMOUNT WAS RECOVERED BY ADMINISTRATIVE DEDUCTION TO REIMBURSE THE GOVERNMENT FOR THE COST OF REPAIRING NINE AIR COMPRESSORS DAMAGED DURING SHIPMENT FROM BROOKLEY AIR FORCE BASE, ALABAMA, TO MARIETTA AIR FORCE STATION, PENNSYLVANIA, ON GOVERNMENT BILL OF LADING NO. AF 9714201, DATED JUNE 13, 1959.

OUR RECORD INDICATES THAT THE DAMAGED FREIGHT WAS PART OF A SHIPMENT CONSISTING OF 25 CRATES OF COMPRESSORS TENDERED TO BAGGETT TRANSPORTATION COMPANY, INC., FOR TRANSPORTATION VIA THAT LINE AND THE MASON AND DIXON LINE AND CONNECTIONS TO DESTINATION WHERE IT WAS DELIVERED BY YOUR COMPANY ON JUNE 23, 1959.

THE SHIPMENT WAS LOADED BY THE SHIPPER AND UNLOADED BY THE CONSIGNEE, BUT AN ADMINISTRATIVE REPORT STATES THAT THE LOADING WAS PERFORMED IN THE PRESENCE OF A REPRESENTATIVE OF THE ORIGIN CARRIER. THE 25 ITEMS WERE CRATED ON 2X4 SKIDS AND STACKED THREE HIGH IN HALL'S TRAILER NO. 2869, WITHOUT BRACING. WHEN THE SHIPMENT ARRIVED AT DESTINATION NINE COMPRESSORS WERE DAMAGED, ONE WITH A CRACKED CYLINDER HEAD, ONE WITH FAN DAMAGE, AND THE REMAINING ITEMS WITH FUEL LINES BENT. A CLEAR RECEIPT WAS GIVEN TO THE CARRIER ON DELIVERY. HOWEVER, THE REVERSE OF THE GOVERNMENT BILL OF LADING WAS ANNOTATED AS FOLLOWS:

"NINE (9) EACH COMPRESSOR, AIR DAMAGED WHEN RECEIVED. COST OF REPAIR UNDETERMINED, WILL BE STATED WHEN DEVELOPED BY SURVEY ACTION.'

THE REPORT OF DAMAGED OR IMPROPER SHIPMENT, ISSUED BY THE MARIETTA AIR FORCE STATION, INDICATES THAT THE DAMAGE WAS DUE TO SHIFTING AND ROUGH HANDLING. IN CHECKING THE BOXES IN WHICH THE COMPRESSORS WERE SHIPPED 10 WERE FOUND TO BE DAMAGED BECAUSE OF SHIFTING AND NAILS AND FOUR BOLTS HOLDING THE COMPRESSOR IN PLACE PULLED OUT, DUE TO THE EXCESS IN WEIGHT, RESULTING IN DAMAGE. THE CRATES DROPPED OFF THE SKIDS ON 7/8 INCH BOARD NAILED ACROSS THE 2X4 SKIDS. THE IN-CHECKER'S DISCREPANCY STATEMENT, DATED JUNE 23, 1959, INDICATES THAT UNLOADING BEGAN AT 1:30 P.M. (1330 HOURS) ON JUNE 23 AND WAS COMPLETED AT 2:30 P.M. (1430 HOURS). THE STATEMENT IS ANNOTATED:

"CONCEALED DAMAGE

BOTTOMS IN BAD CONDITION ON TEN BXS.

BXS. STACKED 3 HIGH IN TRAILER LOAD SHIFTED.

SKIDS WERE NOT ON TOP OF BOXES.'

ON THE DAY FOLLOWING UNLOADING, JUNE 24 AT 2:00 P.M. (1400 HOURS), THE OVER, SHORT AND DAMAGE CLERK FOR HALL'S MOTOR TRANSIT COMPANY WAS NOTIFIED OF THE DAMAGE BY THE INBOUND CARGO MOVEMENT UNIT SUPERVISOR.

IN YOUR PRESENT PROTEST YOU STATE:

"* * * WE HAVE REFERRED THIS MATTER THROUGH THE CHAIN OF COMMAND FROM THE LOCAL DEPOT THRU TO YOUR DEPARTMENT AND IT SEEMS WE GET THE SAME ANSWER FROM EVERYONE THAT IT HAS BEEN REVIEWED BY HIGHER AUTHORITIES AND THAT EVERYONE IS REQUIRED TO ACCEPT THE ADMINISTRATIVE STATEMENTS. IT WOULD THEREFORE APPEAR THAT THE EVIDENCE WHICH IS PRESENTED IS NOT TAKEN INTO CONSIDERATION BUT ONLY THE ORIGINATING ADMINISTRATIVE OFFICES LETTER.'

THE PRINCIPAL OBJECTIONS TO LIABILITY FOR THE FULL EXTENT OF THE DAMAGE, AS SET FORTH IN YOUR PREVIOUS LETTERS, WERE THAT THE DAMAGE MIGHT HAVE OCCURRED DURING FORK LIFT OPERATION BY SHIPPER AT ORIGIN OR AFTER DELIVERY AT DESTINATION, SINCE A CLEAR RECEIPT WAS GIVEN TO THE CARRIER, AND ALSO THAT THE DAMAGE, IF IT OCCURRED DURING TRANSIT, WAS CAUSED BY IMPROPER LOADING WHICH WAS PERFORMED BY THE SHIPPER, AND WAS NOT A RESULT OF THE CARRIER'S NEGLIGENCE.

AS A GENERAL RULE, THE SHIPPER BEARS THE INITIAL BURDEN OF PROVING DELIVERY OF GOODS TO THE CARRIER, AN UNDERTAKING BY THE CARRIER TO TRANSPORT THE GOODS, AND A FAILURE BY THE CARRIER TO PERFORM THE DUTY OF DELIVERING THE SAME QUANTITY OR QUALITY OF GOODS AT DESTINATION. MERCHANT SHIPPERS ASSOCIATION V. KELLOGG EXP. AND DRAYING CO., 170P.2D 823; PALMER V. GILLARDE, 38 N.E.2D 352; GULF, C AND S.F.RY. V. GALBRAITH, 39 S.W.2D 91; RAILWAY EXPRESS AGENCY V. ANDERSON, 45 SO.2D 168; SKYLAND HOSIERY CO. V. AMER.TY.EXP., 114 S.E. 823; JOSEPH TOKER CO. V. LEHIGH V.R., 97 A.2D 598; AND GOLDBERG V. NEW YORK, N.H. AND H.R., 153 ATL. 802. THE BILL OF LADING, AS CONTRACT OF CARRIAGE AND RECEIPT OF GOODS INDICATING ACCEPTANCE BY THE ORIGIN CARRIER IN "APPARENT GOOD ORDER AND CONDITION" BUT HEARING A NOTATION OF DAMAGE ON DELIVERY AT DESTINATION, CONSTITUTES WEIGHTY AND PRIMA FACIE EVIDENCE OF THESE ELEMENTS. GULF, C AND S.F.RY. V. GALBRAITH, SUPRA; FIRST NATIONAL BANK V. MO.PAC.RY., 278 S.W. 1075; SO.RY.CO. V. NORTHWESTERN FRUIT EXCHANGE, 98 SO. 382; IDEAL PLUMBING AND HEAT CO. V. NEW YORK, N.H. AND H.R., 124 A.2D 908; SILVER LINING V. SHEIN, 117 A.2D 182, 184; BERESIN V. PA.R.CO., 176 ALT. 774; JOSEPH TOKER CO. V. LEHIGH V.R., 97 ALT.2D 598, AND GOLDBERG V. NEW YORK, N.H. AND H.R., 153 ALT. 812.

ONCE A PRIMA FACIE CASE OF DAMAGE IN TRANSIT HAS BEEN ESTABLISHED, THE CARRIER IS OBLIGED TO PROVE BY AFFIRMATIVE EVIDENCE EITHER THAT THE SHIPMENT WAS DELIVERED AT DESTINATION IN THE SAME ORDER AND CONDITION AS RECEIVED AT ORIGIN, OR THAT THE DAMAGE, IF IT OCCURRED IN TRANSIT, WAS THE RESULT OF ONE OF THE EXCEPTED CAUSES. THOMPSON V. JAMES G. MCCARRICK CO., 205 F.2D 897; RICHARDS MACHINERY CO. V. MCNAMARA MOTOR EXPRESS, 97 N.W.2D 396; GULF, C. AND S.F.RY. V. GALBRAITH, SUPRA; TEX.-ARIZ. MOTOR FREIGHT V. BENNETT, 324 S.W.2D 32, THE CONCURRING OPINION; FIRST NATIONAL BANK V. NO.PAC.RY., 278 S.W. 1075; SO.RY.CO. V. N.W. FRUIT EXCHANGE, 98 SO. 382; SPANN V. ALABAMA AND V.R. CO., 74 SO. 141; GOLDBERG V. NEW YORK, N.H. AND H.R., 153 ATL. 812. SEE ALSO: PALMER V. GILLARDE, 38 N.E.2D 352, 358. REBUTTAL OF THE PRIMA FACIE CASE YOU SUGGEST THAT THE DAMAGE MIGHT HAVE OCCURRED AT ORIGIN OR AFTER DELIVERY AT DESTINATION. HOWEVER, THE SUGGESTION THAT THE DAMAGE MIGHT HAVE OCCURRED DURING FORK LIFT OPERATION BY THE SHIPPER WHILE LOADING IS REBUTTED BY THE ORIGIN CARRIER'S ACCEPTANCE OF THE SHIPMENT IN GOOD ORDER AND CONDITION, AS EVIDENCED BY THE BILL OF LADING, AND THIS EVIDENCE IS SUPPORTED BY AN ADMINISTRATIVE REPORT DATED AUGUST 14, 1959, TO THE EFFECT THAT THE MATERIAL WAS IN SERVICEABLE CONDITION PRIOR TO, DURING, AND AFTER LOADING. FURTHERMORE, SUCH CONJECTURE, UNSUPPORTED BY AFFIRMATIVE EVIDENCE, IS NOT SUFFICIENT TO REBUT A PRIMA FACIE CASE MADE BY THE BILL OF LADING. KARABAGUI V. THE SHICKSHINNY, 123 F.SUPP. 99, AFFIRMED 227 F.2D 348; JOSEPH TOKER V. LEHIGH V.R., 97 A.2D 598. THE SUGGESTION THAT THE DAMAGE MIGHT HAVE OCCURRED AFTER DELIVERY IS SUPPORTED ONLY BY THE CLEAR RECEIPT GIVEN TO THE CARRIER ON DELIVERY. HOWEVER, SUCH CLEAR RECEIPT, LIKE THE BILL OF LADING, IS NOT CONCLUSIVE, BUT IS SUBJECT TO REBUTTAL. MEARS V. NEW YORK, N.H. AND H.R., 52 ATL. 610. THE NOTATION OF DAMAGE ON THE REVERSE OF THE BILL OF LADING, SUPPORTED BY THE NOTATION OF DAMAGE ON THE IN-CHECKER'S DISCREPANCY STATEMENT, A BUSINESS RECORD MAINTAINED DURING THE PROCESS OF UNLOADING, STANDS IN CONTRADICTION OF THE CLEAR RECEIPT.

IN ANY EVENT, OUR OFFICE WOULD NOT BE JUSTIFIED IN ALLOWING YOUR CLAIM MERELY ON THE STRENGTH OF THE RECEIPTED DELIVERY FREIGHT BILL, WHICH IS IN CONFLICT WITH THE BILL OF LADING, THE PRINCIPAL SHIPPING DOCUMENT. THIS IS ESPECIALLY SO INASMUCH AS THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE DUTY-BOUND TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE AND TO REJECT ALL CLAIMS OF DOUBTFUL VALIDITY, OR TO WHICH IT IS BELIEVED LEGAL DEFENSES MAY EXIST. CHARLES V. UNITED STATES, 19 CT.CL. 316, 319; LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291.

YOU HAVE ALSO ASSERTED THE DEFENSE THAT THE LOADING WAS PERFORMED BY THE SHIPPER, FOR WHICH REASON THE CARRIER SHOULD NOT BE HELD LIABLE, AT LEAST IN FULL, FOR THE RESULTED DAMAGE. ONE OF THE RECOGNIZED EXCEPTIONS TO CARRIER LIABILITY IS DAMAGE CAUSED BY THE ACT OF THE SHIPPER, INCLUDING DEFECTIVE PACKING AND LOADING. HOWEVER, OWING TO THE FACT THAT THE CARRIER IS ENTITLED TO REJECT DEFECTIVELY LOADED GOODS TENDERED FOR SHIPMENT, THE RULE SUPPORTED BY THE WEIGHT OF AUTHORITY IS THAT IF THE CARRIER ACCEPTS GOODS WHICH HE KNOWS ARE DEFECTIVELY LOADED OR WHICH, BY THE EXERCISE OF REASONABLE CARE HE COULD HAVE OBSERVED WERE DEFECTIVELY LOADED, HE ASSUMES TO CARRY THE GOODS AS THEY ARE, AND HIS COMMON LAW LIABILITY AS CARRIER ATTACHES, AND HE IS SUBJECT TO ALL THE LIABILITIES USUALLY ATTACHING TO A PROPERLY LOADED SHIPMENT OF THE SAME CHARACTER. GENERAL ELECTRIC V. MORETZ, 270 F.2D 780; UNITED STATES V. SAVAGE TRUCK LINES, 209 F.2D 442, CERTIORARI DENIED 347 U.S. 952; GEHRKE V. AMER.RY.EXP., 240 N.W. 321. THEREFORE, SINCE A REPRESENTATIVE OF THE ORIGIN CARRIER WAS PRESENT DURING THE LOADING AND COULD HAVE REFUSED TO ACCEPT THE SHIPMENT, THE CARRIER WOULD BE LIABLE FOR THE DAMAGE EVEN IF THE EVIDENCE INDICATED THAT THE DAMAGE RESULTED IN PART FROM THE FAILURE TO BRACE THE SHIPMENT.

IN OPPOSITION TO THE REPORT THAT A CARRIER'S REPRESENTATIVE WAS PRESENT DURING THE LOADING, YOU STATE IN YOUR LETTER OF JULY 26, 1960:

" * * * ATTACHED YOU WILL FIND A PHOTOSTATIC COPY OF THE ORIGIN CARRIER'S LETTER TO US STATING THAT THEIR RECORDS INDICATE THE LOADING WAS DONE BY BROOKLEY PERSONAL (SIC) AND NO CARRIER HANDLING WAS PERFORMED AT ANY TIME. THIS DOES NOT SOUND TO ME AS IF A CARRIER REPRESENTATIVE WAS PRESENT AND IT WOULD APPEAR AS IF THIS WAS A SOLID LOAD, LOADED BY THE SHIPPER AND STOWED BY THE SHIPPER.' A COPY OF THE ORIGIN CARRIER'S LETTER IS NOT IN OUR FILE. ASSUMING, HOWEVER, THAT THE LETTER READS AS ALLEGED, THE MERE FACT THAT "LOADING WAS DONE BY BROOKLEY PERSONAL (SIC) AND NO CARRIER HANDLING WAS PERFORMED AT ANY TIME" DOES NOT DENY THAT A CARRIER REPRESENTATIVE WAS PRESENT TO INSPECT THE LOADING, AS REPORTED BY THE ADMINISTRATIVE OFFICE. YOUR CONCLUSION THAT A CARRIER REPRESENTATIVE WAS NOT PRESENT IS MERE CONJECTURE WHICH MAY NOT BE GIVEN CONTROLLING EFFECT IN CONTRADICTION OF AN AFFIRMATIVE REPORT BY THE ADMINISTRATIVE OFFICE.

IN ANY EVENT, SINCE THE SHIPMENT WAS NOT SEALED AND THE CARRIER COULD HAVE INSPECTED THE SHIPMENT AND REJECTED IT IF THE LOADING WAS DEFECTIVE, THE SAME RULE OF CARRIER LIABILITY APPLIES.