B-139352, MAY 22, 1959

B-139352, MAY 22, 1959

PRECIS-UNAVAILABLE

ASSOCIATED TRANSPORT, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 29, 1958, AND APRIL 1, 1959, FILE T-S1, RELATIVE TO THE MATTER OF YOUR REPORTED INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $4,154.73, REPRESENTING THE COST OF REPAIRING THREE AIRCRAFT ENGINES, RADIAL TYPE, WHICH WERE DAMAGED WHILE BEING TRANSPORTED BY YOU FROM CHARLESTON, SOUTH CAROLINA, TO MARIETTA, PENNSYLVANIA, AND THENCE TO THE OLMSTED AIR FORCE BASE, MIDDLETOWN, PENNSYLVANIA, UNDER GOVERNMENT BILL OF LADING NO. AF 5985500, DATED SEPTEMBER 18, 1956.

OUR RECORDS SHOW THAT THE THREE AIRCRAFT ENGINES HERE INVOLVED WERE LOADED ABOARD YOUR TRAILER BY PERSONNEL OF THE CHARLESTON AIR FORCE BASE, SOUTH CAROLINA; ALSO, THAT THE SAID ENGINES WERE MOUNTED UPON SPECIALLY DESIGNED AIR TRANSPORT FRAMES, OTHERWISE KNOWN AS "DOLLIES," WHICH, IN TURN, WERE MOUNTED ON SWIVEL-TYPE CASTER ROLLERS. FURTHER, THE RECORD SHOWS THAT THESE ENGINES ORIGINALLY WERE BLOCKED BY THE SHIPPER'S UTILIZATION OF EMPTY ACETYLENE GAS CYLINDERS WHICH COMPRISED A PART OF ANOTHER SHIPMENT CONSIGNED FROM CHARLESTON (ORIGIN) TO THE OLMSTED AIR FORCE BASE UNDER A SEPARATE BILL OF LADING. THE TRAILER WAS SEALED BY THE SHIPPER AT ORIGIN. THE DRIVER OF THE CONVEYANCE WAS NOT PRESENT TO INSPECT THE LOADING OF THE TRAILER PRIOR TO APPLICATION OF THE SEAL THERETO. UPON ARRIVAL OF THE TRAILER AT THE OLMSTED AIR FORCE BASE (MIDDLETOWN) THE SEAL WAS BROKEN AND THE ACETYLENE CYLINDERS WHICH FORMERLY HAD BRACED THE ENGINES WERE UNLOADED, LEAVING THEM WITHOUT ADEQUATE BLOCKING AND THUS FREE TO SHIFT OR ROLL ABOUT WHEN THE TRAILER WAS IN MOTION.

SHORTLY AFTER LEAVING THE OLMSTED AIR FORCE BASE, REPORTEDLY AFTER TRAVELING ABOUT THREE CITY BLOCKS, THE DRIVER BECAME AWARE THAT THE CARGO WAS LOOSE AND UNCHECKED IN THE TRAILER, WHEREUPON HE ATTEMPTED TO BRACE THE ENGINES WITH THE LIMITED FACILITIES AT HAND, AND THEN PROCEEDED TO DESTINATION, THE MARIETTA AIR FORCE BASE. HOWEVER, UPON ARRIVAL OF THE CARGO AT MARIETTA, IT IMMEDIATELY WAS RECONSIGNED BACK TO THE OLMSTED AIR FORCE BASE, WHERE THE DAMAGE TO THE ENGINES FIRST WAS DISCOVERED.

THE DAMAGED ENGINES THEREAFTER WERE REPAIRED UNDER SEPARATE CONTRACT AT A COST TO THE GOVERNMENT OF $4,154.73. THE DEPARTMENT OF THE AIR FORCE PROPOSES TO HOLD YOU ACCOUNTABLE FOR THIS DAMAGE, BUT YOU CONTEND GENERALLY THAT A CARRIER IS NOT RESPONSIBLE FOR THE DAMAGE CAUSED BY THE IMPROPER OR INADEQUATE BLOCKING AND BRACING METHODS EMPLOYED BY THE SHIPPER. FURTHER, YOU CONTEND THAT INASMUCH AS THE GOVERNMENT UNDERTOOK THE LOADING AND BRACING OF THIS SHIPMENT, THESE FUNCTIONS SHOULD HAVE BEEN ACCOMPLISHED IN SUCH A MANNER AS WOULD HAVE ASSURED THE SAFE ARRIVAL OF THE ENGINES AT THEIR SCHEDULED POINT OF ULTIMATE DESTINATION, MARIETTA, PENNSYLVANIA.

IT IS THE GENERAL RULE THAT WHERE THE SHIPPER ASSUMES THE RESPONSIBILITY OF LOADING, HE USUALLY BECOMES LIABLE FOR THE DAMAGE RESULTING FROM LATENT OR CONCEALED DEFECTS WHICH ARE NOT DISCERNIBLE BY ORDINARY OBSERVATION UPON THE PART OF THE CARRIER, OR ITS AGENTS. THIS RULE DOES NOT APPEAR PROPER FOR APPLICATION HERE, HOWEVER, SINCE THE LACK OF THE BRACING OR BLOCKING OF THE SHIPMENT BEYOND OLMSTED SHOULD HAVE BEEN APPARENT TO YOUR SERVANT FROM EVEN A SUPERFICIAL EXAMINATION OF THE CARGO. AND IF, AS ALLEGED BY THE DRIVER, HE NOTICED THAT THE ENGINES WERE SHIFTING ABOUT IN THE TRAILER WHEN ONLY APPROXIMATELY THREE CITY BLOCKS FROM THE OLMSTED AIR FORCE BASE, IT WOULD SEEM THAT THE EXERCISE OF EVEN ORDINARY DILIGENCE UPON HIS PART WOULD HAVE DICTATED THE NECESSITY OF RETURNING TO THAT BASE IN ORDER TO HAVE THE ENGINES MADE SECURE BEFORE PROCEEDING THE ENTIRE DISTANCE TO MARIETTA, PENNSYLVANIA, AND RETURNING AGAIN TO OLMSTED. EVEN IN CASES INVOLVING A SHIPPER'S NEGLIGENCE IN LOADING, THE COURTS HAVE HELD THE CARRIER LIABLE FOR DAMAGES WHERE, AS HERE, THE IMPROPER LOADING WAS APPARENT. SEE IN THIS CONNECTION, UNITED STATES V. SAVAGE TRUCK LINE, INC., 209 F. 2D 442, CERTIORARI DENIED, 347 U. S. 952. FURTHERMORE, THE LAW IS WELL SETTLED THAT IF THE IMPROPER LOADING PERFORMED BY THE SHIPPER ADRESSES ITSELF TO THE ORDINARY OBSERVATION OF THE CARRIER, OR ITS SERVANTS, THE CARRIER WILL BE LIABLE FOR DAMAGES NOTWITHSTANDING THE SHIPPER'S NEGLIGENCE. SEE LEWIS MACHINE COMPANY V. ASTEC LINES, INC., 172 F. 2D 746; MODERN TOOL CORPORATION V. THE PENNSYLVANIA RAILROAD COMPANY, 100 F. SUPP. 595. IN APPLYING THE LAW TO THE CIRCUMSTANCES HERE PRESENT, IT WOULD SEEM THAT HAD YOUR DRIVER EXERCISED EVEN THE ORDINARY PRECAUTION OF EXAMINING THE PRESENT SHIPMENT OF ENGINES AFTER THE PARTIAL UNLOADING OF THE TRAILER AT THE OLMSTED AIR FORCE BASE, HE WOULD HAVE IMMEDIATELY DISCOVERED THAT THE ENGINES WERE NOT BRACED, AND THE RESULTING DAMAGE COULD HAVE BEEN AVOIDED. ACCORDINGLY, IT MUST BE CONCLUDED THAT YOUR DRIVER ACTED NEGLIGENTLY IN THIS MATTER, AND THAT YOU ARE LEGALLY LIABLE FOR THE DAMAGE WHICH RESULTED FROM SUCH NEGLIGENCE.

IT IS REQUESTED THAT YOU MAIL YOUR REMITTANCE FOR $4,154.73 TO THE TRANSPORTATION DIVISION, GENERAL ACCOUNTING OFFICE, WITHIN 30 DAYS, AS OUR RECORDS SHOW THAT NO ACTION HAS BEEN TAKEN BY THE ADMINISTRATIVE OFFICE TOWARDS COLLECTION OF THIS DEBT BEFORE SUBMISSION OF THE RECORD TO OUR TRANSPORTATION DIVISION.

CONCERNING YOUR REQUEST FOR AN INTERVIEW RELATIVE TO THIS MATTER, YOU ARE ADVISED THAT THE PROCEDURE OF OUR OFFICE IS SUCH THAT MATTERS PRESENTED HERE FOR CONSIDERATION ARE SETTLED UPON THE BASIS OF THE WRITTEN RECORD. HOWEVER, THERE WOULD BE NO OBJECTION TO YOUR ARRANGING A MEETING WITH US DURING REGULAR WORKING HOURS ON MONDAY THROUGH FRIDAY, FOR THE PURPOSE OF DISCUSSING THIS CLAIM.