B-243922, Jul 22, 1991, 91-2 CPD ***

B-243922, Jul 22, 1991, 91-2 CPD ***

PROCUREMENT - Payment/Discharge - Shipment - Carrier liability - Burden of proof DIGEST: Record does not establish a prima facie case of carrier liability for a damaged violin where the violin was not listed on the inventory of household goods, and there is no other evidence in the record to show that the item was tendered to the carrier for shipment, its condition before it allegedly was shipped, or that the damage was of the sort that likely occurred during transit.

Sentry Household Shipping, Inc.:

The Air Force appeals a February 8, 1991, settlement of our Claims Group denying set-off of $200 against Sentry Household Shipping, Inc. The Air Force objects to the Claims Group's conclusion that the carrier was not liable for damage to a violin, which the shipper reported upon delivery of his household goods. We reverse the Claims Group's action.

Sentry did not list the violin on the inventory of items it prepared when picking up the goods from the shipper. The Claims Group found that while delivery of the violin was evidence of its tender to the carrier, no evidence had been produced to show that the violin was tendered to the carrier in better condition than when it was delivered. The Claims Group concluded that the record thus failed to establish a prima facie case of carrier liability.

In its appeal, the Air Force points out that Sentry was responsible for preparing the inventory list, so that the failure to list the violin, and thus its condition at tender, was the carrier's own error. The Air Force argues that it is unfair to permit a carrier to avoid liability for damage by simply not listing an item on the inventory.

We agree with the Air Force. A carrier is presumed liable for loss or damage to goods where the shipper shows: 1) that the goods were delivered to the carrier in a certain condition; 2) that the property was delivered by the carrier in a more damaged condition; and 3) the amount of loss or damage. Paul Arpin Van Lines, Inc., B-205084, June 2, 1982. This presumption that damage was caused by the carrier during transportation reflects a policy of allocating the burden of proof to the party in a better position to know the true circumstances and facts. See Chandler Trailer Convoy, Inc. - Reconsideration, B-193432, Sept. 13, 1979.

Sentry obviously was tendered the violin, since the company delivered it. It is only because Sentry did not list the violin on the inventory that one cannot tell from that document the item's condition at tender. Sentry had listed the item, the carrier's liability, or lack of it, for any damage would be clear: unless Sentry had taken exception to the item's condition, the carrier would be liable. See Air Force Regulation 112-1, para. 6-56.

In sum, the violin was tendered to the carrier for shipment, as established by its delivery; the carrier did not list the item on the inventory, so that there is no record of exception to its condition at tender; and the violin was delivered damaged. In these circumstances, we believe the general presumption of carrier liability for in-transit damages applies. In this connection, we note that when notified of the damage Sentry did not inspect the violin to ascertain the nature of the damage and whether, in Sentry's view, it likely did not occur during shipment.

The Claims Group's decision is reversed.