B-139352, FEB. 18, 1960

B-139352, FEB. 18, 1960

TO ASSOCIATED TRANSPORT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 2, 1959, AND PREVIOUS CORRESPONDENCE, CONCERNING YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION OF MAY 22, 1959, B-139352, IN WHICH WE SUSTAINED THE FINDING OF THE ADMINISTRATIVE OFFICE THAT YOUR COMPANY WAS LIABLE FOR $4,154.73 AS DAMAGES SUSTAINED IN CONNECTION WITH THE MOVEMENT OF THREE AIRCRAFT ENGINES UNDER GOVERNMENT BILL OF LADING AF-5985500, DATED SEPTEMBER 18, 1956.

THESE AIRCRAFT ENGINES WERE LOADED INTO THE NOSE OF YOUR TRAILER AT ORIGIN BY PERSONNEL OF THE CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, AND WERE MOUNTED UPON SPECIALLY DESIGNED AIR TRANSPORT DOLLIES WHICH, IN TURN, WERE MOUNTED ON SWIVEL-TYPE CASTER ROLLERS. THE ENGINES WERE BLOCKED IN PLACE BY EMPTY ACETYLENE GAS CYLINDERS WHICH COMPRISED A PART OF ANOTHER GOVERNMENT SHIPMENT CONSIGNED FROM CHARLESTON TO OLMSTED AIR FORCE BASE, MIDDLETOWN, PENNSYLVANIA, UNDER A SEPARATE BILL OF LADING. YOUR DRIVER DID NOT HAVE THE OPPORTUNITY TO INSPECT THE LOADING AT ORIGIN BEFORE THE TRAILER WAS SEALED.

UPON ARRIVAL OF THE TRAILER AT MIDDLETOWN THE SEAL WAS BROKEN BY GOVERNMENT PERSONNEL AND YOUR DRIVER, OSCAR WALL, OPENED THE TRAILER DOORS. THE ACETYLENE CYLINDERS WHICH APPARENTLY WERE USED TO BRACE AND BLOCK THE ENGINES WERE UNLOADED BY THE GOVERNMENT AT THIS POINT, LEAVING THE ENGINES IN THE TRAILER TO BE TRANSPORTED TO MARIETTA, PENNSYLVANIA.

AFTER REMOVAL OF THE CYLINDERS, YOUR DRIVER CLOSED THE TRAILER DOORS AND SET OUT TO DELIVER THE ENGINES TO THE BILL OF LADING DESTINATION, MARIETTA, PENNSYLVANIA. THREE CITY BLOCKS AWAY FROM OLMSTED AIR FORCE BASE, YOUR DRIVER REPORTED THAT HE HEARD A TERRIFIC NOISE AND FELT A JOLT AND, AFTER STOPPING, DISCOVERED THAT ONE ENGINE HAD ROLLED TO THE BACK OF THE TRAILER AND HAD PUNCHED A HOLE IN THE TRAILER DOOR. HE REPORTED FURTHER THAT HE ATTEMPTED TO BRACE THE ENGINES WITH THE LIMITED FACILITIES AT HAND AND THEN PROCEEDED ON TO DESTINATION. HOWEVER, UPON ARRIVAL AT MARIETTA THE SHIPMENT WAS IMMEDIATELY RECONSIGNED BACK TO OLMSTED AIR FORCE BASE, WHERE THE DAMAGE TO THE THREE ENGINES WAS NOTED UPON UNLOADING. THE ENGINES WERE SUBSEQUENTLY REPAIRED AT A TOTAL COST OF $4,154.73, OF WHICH $3,494.43 REPRESENTED THE COST OF OVERHAUL, $308.58 THE COST TO REPLACE DAMAGED PARTS, AND $351.72 THE COST OF TRANSPORTATION TO AND FROM THE PLACE OF REPAIR AND OLMSTED AIR FORCE BASE.

IN OUR DECISION OF MAY 22, 1959, WE HELD THAT YOUR DRIVER WAS NEGLIGENT IN NOT EXAMINING THE SHIPMENT OF ENGINES AFTER PARTIAL UNLOADING OF THE TRAILER AT OLMSTED AIR FORCE BASE, AND THAT IF HE HAD MADE SUCH AN EXAMINATION THE IMPROPER LOADING WOULD HAVE BEEN READILY APPARENT THROUGH ORDINARY OBSERVATION. THE LAW IS WELL SETTLED THAT IF THE SHIPPER'S IMPROPER LOADING IS APPARENT TO THE CARRIER, THE CARRIER IS LIABLE FOR DAMAGES OCCASIONED BY THE IMPROPER LOADING NOTWITHSTANDING THE SHIPPER'S NEGLIGENCE. UNITED STATES V. SAVAGE TRUCK LINE, 209 F.2D 442, CERTIORARI DENIED, 347 U.S. 952. SEE PARTICULARLY, POWERS V. SIATS, 70 N.W.2D 344 (1955).

IN YOUR REQUEST FOR RECONSIDERATION, YOU RELY ON THE STATEMENT OF YOUR DRIVER THAT HE DID NOT GO INSIDE THE TRAILER AT MIDDLETOWN TO INSPECT THE REMAINING LOAD BECAUSE DRIVERS ARE NOT ALLOWED IN TRAILERS AT THAT INSTALLATION. IT IS SUGGESTED ALSO THAT SOME OF THE DAMAGE WAS SUSTAINED IN THE UNLOADING OF THE ENGINES BY GOVERNMENT PERSONNEL AT MIDDLETOWN. FURTHER, YOU CONTEND THAT THE LAW WE CITE TO SUPPORT OUR POSITION IS INAPPLICABLE SINCE THE ENGINES WERE LOADED ORIGINALLY AT CHARLESTON RATHER THAN AT MIDDLETOWN.

THE ADMINISTRATIVE OFFICE, IN A SUPPLEMENTAL REPORT, STATES THAT IT HAS NEVER BEEN THE POLICY OF THE PERSONNEL AT OLMSTED AIR FORCE BASE TO REFUSE DRIVERS PERMISSION TO INSPECT THEIR LOADS AT ANY TIME DURING THE UNLOADING OPERATION AND THAT YOUR DRIVER, OSCAR WALL, WAS NOT DENIED THE RIGHT TO INSPECT HIS LOAD DURING THE OPERATION. WHEN THERE IS A CONFLICT BETWEEN STATEMENTS OF FACT AS REPORTED BY THE ADMINISTRATIVE OFFICE AND THOSE AS REPORTED BY THE CLAIMANT, THE NECESSARY RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT AS CORRECT THE VERSION OF THE ADMINISTRATIVE OFFICE UNLESS THERE IS SUBSTANTIAL EVIDENCE TO THE CONTRARY.

THE AFORESAID ADMINISTRATIVE REPORT FURTHER SHOWS THAT THE GOVERNMENT EMPLOYEE WHO ASSISTED IN UNLOADING THE ENGINES AT MIDDLETOWN STATES THAT THE FIRST THING HE NOTED WAS THAT AN ENGINE WAS AGAINST THE TRAILER DOOR, THE TRAILER DOOR HAD A HOLE IN IT, AND METAL PARTICLES WERE LYING ALL OVER THE TRAILER FLOOR. A MR. LEROY M. THOMPSON, WORK LEADER STOCK HANDLER, ALSO REPORTED THAT YOUR DRIVER TOLD HIM THAT THE ENGINES BUMPED FROM MIDDLETOWN ALL THE WAY TO MARIETTA AND BACK (A DISTANCE OF APPROXIMATELY 28 MILES) AND THAT HE COULD NOT GET HAMMER AND NAILS TO BLOCK THE ENGINES. UNDER THESE CIRCUMSTANCES, A COMPLETE OVERHAUL OF THE ENGINES (AT A COST OF $3,494.43 PLUS $351.72 TRANSPORTATION CHARGES) WOULD HAVE BEEN REQUIRED TO ASSURE SAFE OPERATION, NOTWITHSTANDING--- AS YOU CLAIM--- THE ENGINES WERE LATER "DRAGGED AGAINST THE SIDE OF THE TRAILER" IN UNLOADING.

REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION AS TO THE DRIVING OF MOTOR VEHICLES (49 CFR, 1958 SUPP., 192.1, 192.9 (A) AND (B) (, PROVIDE THAT NO MOTOR VEHICLE SHALL BE DRIVEN IF THE LOAD THEREIN IS SO INADEQUATELY SECURED AS TO PREVENT ITS SAFE OPERATION. THEREFORE, YOUR DRIVER WAS REQUIRED BY LAW TO INSPECT THE REMAINING LOAD AT MIDDLETOWN BEFORE PROCEEDING ON TO MARIETTA. THAT THE ENGINES WERE INADEQUATELY SECURED WOULD SEEM TO HAVE BEEN READILY APPARENT TO YOUR DRIVER THROUGH ORDINARY OBSERVATION (IF HE HAD CHECKED THE LOAD), IRRESPECTIVE OF WHETHER OR NOT THE LOCK PINS WERE IN PLACE IN THE SWIVEL WHEELS OF THE AIR TRANSPORT DOLLIES. HIS AFFIDAVIT REPORTS IN DETAIL HOW THE PALLETS OF CYLINDERS WERE UNLOADED, AND THAT HE CLOSED THE DOOR OF THE TRAILER, WHICH CERTAINLY INDICATES THAT HE HAD AMPLE OPPORTUNITY TO NOTE THAT THE ENGINES WERE NOT PROPERLY BRACED. THE FACT THAT THE ENGINES WERE ORIGINALLY LOADED AT CHARLESTON, SOUTH CAROLINA, DOES NOT APPEAR TO LESSEN IN ANY WAY THE RESPONSIBILITY FOR ENSURING THE SAFETY OF THE LOAD REMAINING IN THE VEHICLE AT MIDDLETOWN, PENNSYLVANIA. WE BELIEVE THAT THE LAW HAS BEEN CORRECTLY APPLIED AND THAT YOUR COMPANY IS LIABLE FOR THE DAMAGES OCCASIONED BY THE NEGLIGENCE OF YOUR DRIVER.

ACCORDINGLY, OUR DECISION OF MAY 22, 1959, IS AFFIRMED, AND YOUR CHECK FOR $4,154.73, MADE PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE," SHOULD BE SENT PROMPTLY TO THE U.S. GENERAL ACCOUNTING OFFICE, TRANSPORTATION DIVISION, WASHINGTON 25, D.C., OTHERWISE, STEPS WILL BE TAKEN TO EFFECT COLLECTION BY OTHER AVAILABLE MEANS.