B-190147, MAY 31, 1978

B-190147, MAY 31, 1978

PRIOR DECISION IS AFFIRMED WHERE ON RECONSIDERATION CARRIER FAILS TO PROVIDE PLAIN AND CONVINCING PROOF THAT AGENCY'S REPORT DENYING RECEIPT OF MISSING ITEMS IS IN ERROR AND BY SO FAILING IS UNABLE TO OVERCOME GOVERNMENT'S PRIMA FACIE CASE OF CARRIER LIABILITY.

PACIFIC INTERMOUNTAIN EXPRESS CO. - REQUEST FOR RECONSIDERATION:

BY LETTER DATED NOVEMBER 30, 1977, PACIFIC INTERMOUNTAIN EXPRESS CO. (PIE) REQUESTS A RECONSIDERATION OF OUR DECISION OF B-190147, NOVEMEBR 15, 1977, SUSTAINING OUR CLAIMS DIVISION'S SETTLEMENT DATED AUGUST 3 3, 1977, IN WHICH THE DIVISION DISALLOWED PIE'S CLAIM FOR $1,622.51. THE AMOUNT CLAIMED WAS COLLECTED BY ADMINISTRATIVE SETOFF FROM CENTRAL STORAGE & TRANSFER CO., INC. (CENTRAL), TO LIQUIDATE THE GOVERNMENT'S CLAIM FOR UNEARNED FREIGHT CHARGES AND THE LOSS OF THREE CARTONS OF AUTOMOBILE TRANSMISSIONS FROM A SHIPMENT OF MISCELLANEOUS FREIGHT TENDERED TO PIE AND DELIVERED BY CENTRAL UNDER GOVERNMENT BILL OF LADING NO. H-0953128. PIE REIMBURSED CENTRAL FOR DEDUCTION AND AS A SUBROGEE PRESENTED THE CLAIM.

IN OUR DECISION OF NOVEMBER 15, 1977, WE NOTED THAT PIE DID NOT DISPUTE THE FACT THAT A PRIMA FACIE CASE OF CARRIER LIABILITY HAD BEEN ESTABLISHED BY THE SHIPPER, THE DEPARTMENT OF THE ARMY, BY PROOF THAT A STATED QUANTITY OF GOODS WAS DELIVERED IN GOOD CONDITION TO THE CARRIER AT ORIGIN, THAT A LESSER QUANTITY WAS DELIVERED AT DESTINATION, AND THAT THE DAMAGES WERE $1,622.51. MISSOURI PACIFIC R.R. V. ELMORE & STAHL, 377 U.S. 134 (1964). INSTEAD, PIE SOUGHT TO EXPLAIN THIS SHORTAGE IN THE SHIPMENT FROM TOOELE ARMY DEPOT, TOOELE, UTAH, TO THE NEW CUMBERLAND ARMY DEPOT IN NEW CUMBERLAND, PENNSYLVANIA, BY POINTING OUT THAT ANOTHER SHIPMENT HAD BEEN PICKED UP AT TOOELE ARMY DEPOT ON THE SAME DATE, BUT CONSIGNED TO THE MILITARY OCEAN TERMINAL (MOT), BAYONNE, NEW JERSEY. PIE CONTENDED THAT AFTER DELIVERING THIS SHIPMENT TO MOT WITHOUT EXCEPTION, IT THEN DELIVERED THREE ARTICLES TO MOT AT A LATER DATE ON A FREE ASTRAY BASIS AS AN APPARENT OVERAGE ON THE ORIGINAL SHIPMENT. IT WAS THESE ITEMS THAT PIE ALLEGED WERE THE THREE MISSING TRANSMISSIONS.

THE RECORD INDICATES THAT BESIDES THE THREE ARTICLES DELIVERED TO MOT ON A FREE ASTRAY BASIS, PIE'S AGENT ALSO HAD DELIVERED ONE EXTRA ITEM WITH THE ORIGINAL SHIPMENT. HOWEVER, MOT'S REVIEW OF ITS INTERNAL DOCUMENTS SHOWED THAT NONE OF THESE FOUR ARTICLES WERE AUTOMOBILE TRANSMISSIONS. THUS, WE HELD THAT THE OBVIOUS DISCREPANCY AT MOT DID NOT LEAD TO THE CONCLUSION THAT THE THREE MISSING CARTONS OF TRANSMISSIONS CONSIGNED TO THE NEW CUMBERLAND DEPOT WERE DELIVERED TO MOT BY ERROR. CONSEQUENTLY, WE ACCEPTED MOT'S STATEMENT OF FACT IN THIS MATTER IN LIGHT OF PIE'S FAILURE TO FURNISH "CLEAR AND CONVINCING" PROOF TO THE CONTRARY. 48 COMP.GEN. 638, 644 (1969).

ONCE A SHIPPER HAS PROVEN A PRIMA FACIE CASE OF CARRIER LIABILITY, THE BURDEN OF PROOF SHIFTS TO THE CARRIER AND REMAINS THERE. SUPER SERVICE MOTOR FREIGHT CO. V. UNITED STATES, 350 F.2D 541 (6TH CIR. 1965). LIGHT OF THIS RULE, WE CONCLUDED THAT THE MERE ALLEGATIONS BY PIE THAT THE OVERAGE OF ITEMS DELIVERED TO MOT ACCOUNTED FOR THE LATER SHORTAGE OF DIFFERENT ITEMS AT THE NEW CUMBERLAND ARMY DEPOT WERE NOT SUFFICIENT TO REBUT THE PRESUMPTION THAT THE SHORTAGE WAS DUE TO THE NEGLIGENCE OF THE CARRIERS. THUS, WE SUSTAINED THE DISALLOWANCE OF PIE'S CLAIM.

IN ITS REQUEST FOR RECONSIDERATION, PIE ASSERTS THAT IT IS BEING PENALIZED FOR FOLLOWING GOVERNMENT PROCEDURES FOR DEALING WITH OVERAGES OF MERCHANDISE. THAT IS, BY FOLLOWING THE INSTRUCTIONS TO DELIVER ANY OVERAGES OF MERCHANDISE FOR LATER IDENTIFICATION AND APPLICATION BY THE GOVERNMENT AGENCY INVOLVED, PIE LOSES ANY OPPORTUNITY TO IDENTIFY THE MERCHANDISE ITSELF AND MUST THEREFORE RELY ON THE GOVERNMENT'S UNILATERAL DETERMINATION WHICH IN TURN OFTEN RESULTS IN A SETOFF AGAINST THE CARRIER FOR A SHORTAGE WITHOUT THE IDENTITY OF THE OVERAGE EVEN BEING DISCLOSED. PIE CONTENDS, THEREFORE, THAT WHEN IT IS BEING CHARGED WITH A SHORTAGE AND THERE HAS BEEN AN OVERAGE ON ANOTHER SHIPMENT PICKED UP ON THE SAME DAY AND AT THE SAME ORIGIN, IT HAS A RIGHT TO BE PROVIDED WITH THE PROPER IDENTIFICATION AND APPLICATION OF THAT OVERAGE BEFORE BEING HELD LIABLE FOR THE SHORTAGE.

IT IS WELL RECOGNIZED THAT THE GOVERNMENT HAS THE RIGHT OF SETOFF AS A MEANS OF COLLECTING ITS CLAIM AGAINST A CARRIER FOR LOSS OR DAMAGE. SEE UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234 (1947); BURLINGTON NORTHERN, INC. V. UNITED STATES, 462 F.2D 526 (CT.CL. 1972). ADDITION, WE HAVE HELD THAT IN ORDER TO REBUT THE FACTS PRESENTED IN SUPPORT OF THE GOVERNMENT'S CLAIM THE CARRIER MUST PRODUCE PLAIN AND CONVINCING PROOF THAT THE ADMINISTRATIVE REPORT IS IN ERROR. 48 COMP. GEN. 638, 644, SUPRA; B-181871, FEBRUARY 11, 1977.

THE FACT THAT PIE HAS BEEN UNABLE TO DETERMINE INDEPENDENTLY THE IDENTITY OF THE OVERAGE IN QUESTION DOES NOT RELIEVE IT OF THE BURDEN OF OVERCOMING THE GOVERNMENT'S PRIMA FACIE CASE. MOREOVER, THE FACTUAL REPORT FURNISHED BY MOT WHICH IS BASED ON A REVIEW OF ITS INTERNAL DOCUMENTS (AND WHICH RECENTLY WAS AFFIRMED BY THAT INSTALLATION) MUST BE ACCEPTED IN GOOD FAITH UNLESS SHOWN BY PLAIN AND CONVINCING PROOF TO BE IN ERROR.

IN ITS REQUEST FOR RECONSIDERATION, PIE HAS NOT PROVIDED ANY PROOF THAT MOT'S REPORT IS IN ERROR, BUT ONLY HAS QUESTIONED GENERALLY THE GOVERNMENT'S PROCEDURES FOR DEALING WITH AN OVERAGE. THUS, LACKING PLAIN AND CONVINCING PROOF TO THE CONTRARY, WE MUST ACCEPT AS ACCURATE THE STATEMENT OF FACTS FURNISHED BY MOT AND CONCLUDE THAT PIE HAS FAILED TO REBUT THE PRESUMPTION THAT THE SHORTAGE WAS DUE TO THE NEGLIGENCE OF THE CARRIERS OR TO ONE OF THE EXCEPTIONS TO ITS COMMON CARRIER LIABILITY.

OUR DECISION OF B-190147, NOVEMBER 15, 1977, IS THEREFORE AFFIRMED.