B-159553, DEC. 20, 1966

B-159553: Dec 20, 1966

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TO DON MCADEN COMPANY: WE HAVE CONSIDERED YOUR LETTER OF AUGUST 26. THE STATEMENT RECITES THAT IT IS MADE UNDER OATH. THE FACTS ALLEGED ARE APPARENTLY INTENDED TO EXCULPATE THE CARRIER FROM LIABILITY ON THE GROUND THAT THE DAMAGE WAS THE FAULT OF THE SHIPPER OR ATTRIBUTABLE TO THE INHERENT VICE OF THE GOODS. THESE ALLEGATIONS GO TO THE PREPARATION OF THE LETTUCE FOR SHIPMENT AND TO THE CHARACTER OF THE PRODUCT IN THE STATE THAT IT WAS TENDERED FOR SHIPMENT. WHICH WAS WATER-SOAKED WHEN CUT. YOU INDICATE THAT THE HEADS WERE INDIVIDUALLY WRAPPED IN CELLOPHANE IN THE FIELD. THAT YOUR MECHANICALLY REFRIGERATED VANS WERE INSPECTED PRIOR TO LOADING AND FOUND TO BE OPERATING PROPERLY. THAT AT EACH CHANGE OF SHIFT THE LOAD TEMPERATURES WERE CHECKED.

B-159553, DEC. 20, 1966

TO DON MCADEN COMPANY:

WE HAVE CONSIDERED YOUR LETTER OF AUGUST 26, 1966, FURNISHING A STATEMENT OF THE CIRCUMSTANCES SURROUNDING THE REJECTION IN MAY 1965 OF TWO TRUCKLOADS OF LETTUCE, TRANSPORTED UNDER COMMERCIAL BILLS OF LADING CONVERTED TO GOVERNMENT BILLS OF LADING C-170377 AND C-170378. THE STATEMENT RECITES THAT IT IS MADE UNDER OATH; HOWEVER, IT DOES NOT BEAR AN OFFICIAL SEAL OR ATTESTATION BY A NOTARY PUBLIC OR OTHER OFFICIAL AUTHORIZED TO WITNESS THE TAKING OF AN OATH.

THE FACTS ALLEGED ARE APPARENTLY INTENDED TO EXCULPATE THE CARRIER FROM LIABILITY ON THE GROUND THAT THE DAMAGE WAS THE FAULT OF THE SHIPPER OR ATTRIBUTABLE TO THE INHERENT VICE OF THE GOODS. THESE ALLEGATIONS GO TO THE PREPARATION OF THE LETTUCE FOR SHIPMENT AND TO THE CHARACTER OF THE PRODUCT IN THE STATE THAT IT WAS TENDERED FOR SHIPMENT. YOU ALLEGE THAT EXTREMELY WET WEATHER PREVAILED PRIOR TO HARVESTING THIS LETTUCE, WHICH WAS WATER-SOAKED WHEN CUT. YOU INDICATE THAT THE HEADS WERE INDIVIDUALLY WRAPPED IN CELLOPHANE IN THE FIELD, SEALING IN THE WATER; THAT THE VACUUM COOLING PROCESS EMPLOYED TO REDUCE THE LETTUCE TEMPERATURE TO THE DESIRED DEGREE OF COLDNESS PRIOR TO LOADING COULD NOT EXTRACT MOISTURE FROM THE WRAPPED HEADS; THAT YOUR MECHANICALLY REFRIGERATED VANS WERE INSPECTED PRIOR TO LOADING AND FOUND TO BE OPERATING PROPERLY; THAT EN ROUTE TO DESTINATION, THEY OPERATED AROUND THE CLOCK, THE TWO EXPERIENCED DRIVERS IN CHARGE ALTERNATING WITH THEIR HELPERS IN FIVE-HOUR SHIFTS; THAT AT EACH CHANGE OF SHIFT THE LOAD TEMPERATURES WERE CHECKED, AND THAT THEY WERE ALSO CHECKED AT YOUR GORDONVILLE TERMINAL WHERE THEY WERE BETWEEN 35 AND 37 DEGREES.

AS INSTRUCTED IN THE COVERING COMMERCIAL BILLS OF LADING, PLANT GROWERS VACUUM COOL COMPANY BILLS OF LADING A-7554 AND A-7555, THE VEHICLES WERE PLACED FOR UNLOADING AT THE BROOKLYN ARMY TERMINAL AT 8:00 A.M., MAY 12, 1965, AND THE DOORS OPENED FOR INSPECTION. YOUR DRIVERS REPORTED TO YOU THAT THE TEMPERATURES WERE THEN 36 TO 38 DEGREES; INSPECTION WAS MADE AND THE INSPECTORS DEPARTED, LEAVING THE VAN DOORS OPEN BUT FAILING TO DIRECT THAT THE UNLOADING PROCEED. THE DRIVERS EVENTUALLY CLOSED THE DOORS; IN THE AFTERNOON AND TWO TRUCKLOADS WERE REJECTED BY THE ARMY. THE DRIVERS APPRISED YOU OF THE SITUATION; YOU ASCERTAINED THAT THE REJECTION RESULTED FROM DAMAGE DUE TO HIGH TEMPERATURES; YOU THEN PROCEEDED TO NEW YORK CITY TO DISPOSE OF THE LETTUCE, WHICH YOU SOLD AS SALVAGE FOR $5,328.27.

YOUR UNSWORN ACCOUNT, REPORTING TELEPHONE CONVERSATIONS AND STATEMENTS MADE TO YOU BY YOUR DRIVERS AND OTHERS, IS NOT ACCOMPANIED BY EVIDENCE TO ESTABLISH THE WEATHER ALLEGEDLY EXISTING AT ORIGIN, BY EXTRACTS FROM THE DRIVERS' LOGS REPORTING TEMPERATURES EN ROUTE, OR BY AFFIDAVITS OF YOUR DRIVERS AND OTHER PARTIES HAVING KNOWLEDGE OF THE MATTER.

FROM THE SALVAGE PROCEEDS, $5,328.27, YOU PROPOSE TO SET OFF THE UNPAID FREIGHT CHARGES, $2.950, $400 DEMURRAGE AND $300 EXPENSES INCURRED IN DISPOSITION OF THE LETTUCE. THE BALANCE $1,678.27, YOU WOULD PAY OVER IN FULL SATISFACTION OF THE GOVERNMENT'S CLAIM FOR $7,642.80, THE INVOICE VALUE OF THE LETTUCE. THE EFFECT OF THIS PROPOSAL, IF ACCEPTED, WOULD BE TO RELIVE THE CARRIER OF ALL LIABILITY AND MAKE IT WHOLE AS TO UNPAID FREIGHT, DEMURRAGE AND EXPENSES, WHILE LEAVING THE GOVERNMENT OUT OF POCKET IN THE AMOUNT OF $5,964.53 ($7,642.80 LESS $1.678.27). TO THIS WE CANNOT ACCEDE.

UNDER SECTION 20 (11) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11), MADE APPLICABLE TO MOTOR CARRIERS UNDER 49 U.S.C. 319, A SHIPPER MAKES OUT A PRIMA FACIE CASE OF CARRIER LIABILITY FOR DAMAGE TO ITS GOODS UPON A SHOWING OF GOOD ORDER DELIVERY TO THE CARRIER AND ARRIVAL AT DESTINATION DAMAGED. IT IS THEN INCUMBENT UPON THE CARRIER TO PROVE LACK OF NEGLIGENCE ON ITS PART AND THAT THE PROXIMATE CAUSE OF THE DAMAGE WAS ONE OF THE EXCEPTED COMMON LAW PERILS: ACT OF GOD, THE PUBLIC ENEMY, THE SHIPPER HIMSELF, OR THE PUBLIC AUTHORITY, OR THE INHERENT NATURE OR VICE OF THE GOODS. AND THE RULE IS THE SAME EVEN WHEN THE GOODS SHIPPED ARE PERISHABLE. SEE MISSOURI PACIFIC RAILROAD COMPANY V. ELMORE AND STAHL, 377 U.S. 134 (1964), WHERE THE SHIPMENT CONSISTED OF FRESH MELONS.

YOUR DRIVERS, CLARENCE HUFFMAN AND MILTON UNDERWOOD, SIGNED BILLS OF LADING A-7554 AND A-7555, EVIDENCING RECEIPT OF PERISHABLE PROPERTY "IN GOOD ORDER AND CONDITION" AND UNDERTOOK TO DELIVER IT TO DESTINATION IN THE SAME GOOD ORDER AND CONDITION, HAVING TRANSPORTED IT UNDER REFRIGERATION AT THE TEMPERATURES SPECIFIED. SEE PARAGRAPH 2 OF THE CONTRACT TERMS AND CONDITIONS ON THE REVERSE OF THE BILLS OF LADING. PRINTED DIRECTIONS ON THE FACE OF THE COMMERCIAL BILLS OF LADING DIRECTED THAT THE UNITS BE COOLED TO 33 DEGREES AND TEMPERATURES MAINTAINED AT 33 TO 36 DEGREES. YOU REPORT THAT THE TEMPERATURES WERE BETWEEN 35 AND 37 DEGREES WHEN THE UNITS WERE EXAMINED AT THE GORDONVILLE TERMINAL AND THAT THEY WERE 36 TO 38 DEGREES WHEN FIRST OPENED AT DESTINATION.

BOTH THE VANS AND THE LETTUCE WERE INSPECTED AT ORIGIN BY A GOVERNMENT INSPECTOR DURING THE PERIOD FROM 3:00 P.M. TO 5:25 P.M. ON MAY 6, 1965. UNITED STATES DEPARTMENT OF AGRICULTURE AND CALIFORNIA DEPARTMENT OF AGRICULTURE INSPECTION CERTIFICATES A-125888 AND A 125892 SHOW THAT THE VAN TEMPERATURES WERE 20 DEGREES, THE CORE TEMPERATURES RANGED FROM 32 TO 36 DEGREES AND THE LEAF TEMPERATURES FROM 32 TO 35 DEGREES. THE LETTUCE GRADED U.S. NO. 1, 74 TO 81 PERCENT HARD AND FIRM, WITH A MAXIMUM OF 1 PERCENT DECAY AND WITH THE PERCENTAGE OF DEFECTS BEING WITHIN ACCEPTED TOLERANCES. INSPECTION CERTIFICATES I-88892 AND I-88893, REPORTING THE DEPARTMENT OF AGRICULTURE INSPECTION AT DESTINATION ON THE AFTERNOON OF MAY 12 SHOW THAT THE TEMPERATURE OF THE LETTUCE INSIDE THE REAR DOORS OF ONE VAN WAS 41 DEGREES AT THE TOP AND 40 DEGREES AT THE BOTTOM, OF THE OTHER, 40 DEGREES AT THE TOP AND 38 DEGREES AT THE BOTTOM.

THE PRODUCT MET THE QUALITY REQUIREMENTS, AVERAGING 68 TO 71 PERCENT HARD AND FIRM AND 25 TO 28 PERCENT FAIRLY FIRM, BUT FAILED TO GRADE U.S. NO. 1 BECAUSE OF ITS CONDITION. THE CONDITION OF THE LETTUCE IN EACH VAN WAS REPORTED AS FOLLOWS:

"HEADS OR PORTION OF HEADS FREE FROM DECAY OR OTHER CONDITION DEFECTS ARE FRESH AND CRISP. WRAPPER LEAVES: NO DECAY AFFECTING WRAPPER LEAVES ONLY. HEAD LEAVES: AVERAGE 5 PERCENT DAMAGE BY TIPBURN. 1 TO 5 DECAYED HEADS PER CRATE AVERAGE 11 PERCENT BACTERIAL SOFT ROT IN VARIOUS STAGES AFFECTING 3 LEAVES TO 3/4 OF HEAD.'

"HEADS OR PORTION OF HEADS FREE FROM DECAY OR OTHER CONDITION DEFECTS ARE FRESH AND CRISP. WRAPPER LEAVES: NO DECAY AFFECTING WRAPPER LEAVES ONLY. HEAD LEAVES: 1 TO 8 DECAYED HEADS PER CRATE AVERAGE 17 PERCENT BACTERIAL SOFT ROT IN VARIOUS STAGES AFFECTING FROM 3 LEAVES TO 3/4 OF HEAD.'

THE ORIGIN AND DESTINATION INSPECTION REPORTS ON PRODUCT QUALITY, INDICATING THAT A SUBSTANTIAL PROPORTION OF THE LETTUCE WAS HARD AND FIRM DO NOT SUPPORT THE ALLEGATION THAT THEY WERE WATERLOGGED AT THE TIME OF SHIPMENT. SINCE YOU HAVE OFFERED NO EVIDENCE IN SUPPORT OF YOUR CONTENTION ON THIS POINT, WE CANNOT CONCLUDE EITHER THAT THE SHIPPER WAS NEGLIGENT IN PACKING AND TENDERING LETTUCE CONTAINING A HIGH DEGREE OF MOISTURE OR THAT THE LETTUCE WAS INHERENTLY SUSCEPTIBLE TO THE CONDITIONS FOUND TO EXIST ON ARRIVAL. ON THE CONTRARY, THE GOVERNMENT'S PRIMA FACIE CASE OF LIABILITY HAS NOT BEEN REBUTTED BY ANY EVIDENCE TENDING TO PROVE THAT THE DAMAGE RESULTED FROM A CAUSE EXCUSING YOUR COMPANY FROM LIABILITY.

IN THESE CIRCUMSTANCES YOUR PROPOSAL TO PAY $1,678.27, THE BALANCE OF THE AMOUNT REALIZED FOR SALVAGE AFTER DEDUCTION OF FREIGHT CHARGES, DEMURRAGE AND COSTS, IN FULL SATISFACTION OF THE GOVERNMENT'S CLAIM IS UNACCEPTABLE. ON THE PRESENT RECORD, THE CARRIER IS LIABLE FOR THE INVOICE VALUE OF THE LETTUCE, $7,642.80. HOWEVER, WE ARE WILLING TO CONSIDER A MORE REALISTIC SETTLEMENT OFFER, ACCOMPANIED BY DOCUMENTARY EVIDENCE SUPPORTING YOUR CONTENTIONS, SUCH AS AN AUTHORITATIVE STATEMENT OF WEATHER CONDITIONS AT ORIGIN, VERIFIED EXTRACTS FROM THE DRIVERS' LOG SHOWING TEMPERATURES EN ROUTE, OR AFFIDAVITS OF THE DRIVERS. WE WILL ALLOW YOU SIXTY DAYS MORE FOR THAT PURPOSE BEFORE TAKING FURTHER ACTION TO COLLECT THE GOVERNMENT'S CLAIM FOR $7,642.80.