B-178161, JUL 31, 1973, 53 COMP GEN 61

B-178161, JUL 31, 1973, 53 COMP GEN 61

PROPERTY - PRIVATE - DAMAGE, LOSS, ETC. - CARRIER'S LIABILITY - ARTICLES OF HIGH V. EXTRAORDINARY VALUE A CLAIM ACQUIRED BY ASSIGNMENT PURSUANT TO THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT, 31 U.S.C. 240, AGAINST A CARRIER FOR THE LOSS OF ANTIQUE IMARI AND KUTANI JAPANESE PORCELAINS IN THE TRANSIT OF AN AIR FORCE OFFICER'S HOUSEHOLD GOODS PROPERLY WAS RECOVERED BY SETOFF AGAINST THE CARRIER WHO HAS DENIED LIABILITY BECAUSE THE PORCELAINS WERE NOT DECLARED TO HAVE EXTRAORDINARY VALUE; THE LOSS WAS NOT LISTED AT THE TIME OF DELIVERY; AND THE SHIPMENT BEING THE ONLY ONE IN THE VAN IT COULD NOT HAVE BEEN MISDELIVERED. HOWEVER, ALTHOUGH OF HIGH VALUE, ANTIQUE PORCELAINS ARE NOT ARTICLES OF EXTRAORDINARY VALUE AND SINCE THE VALUATION PLACED ON THE SHIPMENT WAS INTENDED TO INCLUDE THE PORCELAINS, A SEPARATE BILL OF LADING LISTING WAS NOT REQUIRED; THE CLEAR DELIVERY RECEIPT MAY BE REBUTTED BY PAROL EVIDENCE; AND THE CARRIER'S RECEIPT OF MORE GOODS AT ORIGIN THAN DELIVERED ESTABLISHES A PRIMA FACIE CASE OF LOSS IN TRANSIT.

TO ALLIED VAN LINES, INC., JULY 31, 1973:

IN YOUR LETTER OF SEPTEMBER 27, 1972, TO OUR TRANSPORTATION AND CLAIMS DIVISION, YOU CLAIM REFUND OF $10,000 SET OFF BY THE DEPARTMENT OF THE ARMY TO RECOVER THE VALUE OF CERTAIN PROPERTY LOST IN TRANSIT FROM A SHIPMENT OF HOUSEHOLD GOODS OWNED AND SHIPPED BY CAPTAIN RUTH C. SHEW, UNITED STATES AIR FORCE (RET.).

ON JULY 15, 1970, THE SHIPMENT OF HOUSEHOLD GOODS, WEIGHING 9,900 POUNDS, WAS TENDERED TO YOUR AGENTS, GREATER SOUTHWEST WAREHOUSES - VICTORY VAN & STORAGE, FOR TRANSPORTATION FROM WILLINGBORO, NEW JERSEY, TO SARASOTA, FLORIDA, UNDER GOVERNMENT BILL OF LADING NO. F-0773689, SUBJECT TO THE TERMS OF MILITARY RATE TENDER (MRT) 1-E. A VALUATION OF $35,000 WAS DECLARED AND NOTED ON THE FACE OF THE BILL OF LADING AND OTHER DOCUMENTS. THE SHIPMENT MOVED TO LAKELAND, FLORIDA, AND ON JULY 21, 1970, WAS PLACED IN TEMPORARY STORAGE AT YARNALL WAREHOUSE AND TRANSFER CO., YOUR AGENT.

THE SHIPMENT WAS DELIVERED TO CAPTAIN SHEW AT SARASOTA, FLORIDA, ON SEPTEMBER 15, 1970. ON UNLOADING, CAPTAIN SHEW QUESTIONED THE ABSENCE OF TWO PACKAGES, BUT ON BEING ASSURED BY THE UNLOADERS THAT THE TWO PACKAGES HAD BEEN UNLOADED, CAPTAIN SHEW EXECUTED A CLEAN RECEIPT, EXCEPT FOR SOME DAMAGES.

ON DECEMBER 9, 1970, A CLAIM FOR $12,699 WAS SUBMITTED TO YARNALL WAREHOUSE & TRANSFER, INC., FOR THE DAMAGED AND MISSING ARTICLES. THE CARRIER REPAIRED THE DAMAGED FURNITURE AND OTHER REPAIRABLE ITEMS, AND OFFERED $97.50 IN SETTLEMENT OF MISSING ITEMS, EXCLUDING THE TWO PACKAGES, WHICH CONTAINED ANTIQUE IMARI AND KUTANI JAPANESE PORCELAINS VALUED IN THE AGGREGATE AT $11,000 OR AT $50 FOR EACH OF 100 PIECES OF IMARI AND AT $60 FOR EACH OF THE 100 PIECES OF KUTANI PORCELAIN.

CAPTAIN SHEW REFUSED THE SETTLEMENT; SHE THEN FILED A CLAIM AGAINST THE GOVERNMENT UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, AS AMENDED, 31 U.S.C. 240. THIS CLAIM WAS SETTLED FOR $10,000 AND THE SETTLEMENT OPERATED AS AN ASSIGNMENT TO THE GOVERNMENT OF CAPTAIN SHEW'S CLAIM AGAINST THE CARRIER. ON THE DENIAL BY THE CARRIER OF THE GOVERNMENT'S CLAIM FOR $10,000, THE AMOUNT WAS RECOVERED BY SETOFF. THIS CLAIM FOLLOWED.

YOU DENY LIABILITY FOR THE TWO PACKAGES OF PORCELAIN FOR THESE REASONS: (1) THE PORCELAINS ARE ALLEGED TO CONSTITUTE ARTICLES OF EXTRAORDINARY VALUE, BUT WERE NOT DECLARED AS SUCH ON THE COVERING BILL OF LADING AS REQUIRED BY THE TARIFF AND THE COMMERCIAL BILL OF LADING; (2) THE LOSS WAS NOT LISTED AT THE TIME OF DELIVERY; AND (3) YOUR INVESTIGATION ALLEGEDLY ESTABLISHES THAT NO LOSS OCCURRED SINCE TRACING AT ORIGIN, WHILE IN TRANSIT, AND WHILE STORED WAS NEGATIVE, AND YOU ALLEGE THAT MISDELIVERY IS ELIMINATED SINCE NO OTHER SHIPMENTS WERE ON THE VAN.

THE SHIPMENT MOVED UNDER THE PROVISIONS OF MRT 1-E. SECTION I, UNDER "GOVERNING REGULATIONS," PROVIDES:

EXCEPT AS OTHERWISE PROVIDED FOR HEREIN, RULES AND REGULATIONS GOVERNING APPLICATION OF THIS TARIFF WILL BE AS PROVIDED IN CARRIER'S PUBLISHED TARIFF ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. ***.

IN ITEM 1 OF MRT 1-E THE LIMITATION OF THE CARRIER LIABILITY IS SET FORTH. SUBPARAGRAPH (F) OF THAT ITEM PROVIDES:

THE CARRIER SHALL BE LIABLE, ONLY TO THE EXTENT OF HIS STATED LIABILITY, FOR SMALL ITEMS OF EXTRAORDINARY VALUE SUCH AS EXPENSIVE CAMERAS, WATCHES, JEWELRY AND FURS.

THE CARRIER'S STATED LIABILITY FOR ARTICLES OF EXTRAORDINARY VALUE IS NOT FURTHER SET FORTH IN MRT 1-E, BUT IS SET FORTH IN ALLIED VAN LINES TARIFF 139-C, MF-I.C.C. 143, THE PUBLISHED TARIFF REFERRED TO IN SECTION 1 OF MRT 1-E RULE 12 OF THAT TARIFF IS TITLED "PERISHABLE ARTICLES OR ARTICLES OF EXTRAORDINARY VALUE," AND PARAGRAPH (A) READS:

(A) THE CARRIER WILL NOT ASSUME ANY LIABILITY WHATSOEVER FOR: DOCUMENTS, CURRENCY, MONEY, CREDIT CARDS, JEWELRY, WATCHES, PRECIOUS STONES, OR ARTICLES OF EXTRAORDINARY VALUE INCLUDING ACCOUNTS, BILLS, DEEDS, EVIDENCE OF DEBT, SECURITIES, NOTES, POSTAGE STAMPS, STAMP COLLECTIONS, % TRADING STAMPS, REVENUE STAMPS, LETTERS OR PACKETS OF LETTERS, ARTICLES OF PECULIARLY INHERENT VALUE, PRECIOUS METALS OR ARTICLES MANUFACTURED THEREFROM WHICH ARE NOT SPECIFICALLY LISTED ON THE BILL OF LADING.

VALUABLE ANTIQUE PORCELAINS ARE NOT AMONG THE ITEMS OF EXTRAORDINARY VALUE SPECIFICALLY LISTED, NOR IS THE PHRASE "ARTICLES OF EXTRAORDINARY VALUE" FURTHER DEFINED IN EITHER MRT 1-E OR ALLIED'S TARIFF 139-C.

HISTORICALLY, COMMON CARRIERS OF GENERAL FREIGHT WERE NOT EQUIPPED FOR AND DID NOT CHOOSE TO CARRY ARTICLES OF UNUSUAL OR EXTRAORDINARY VALUE. SUCH FREIGHT WAS HANDLED BY CONTRACT ARMORED VEHICLE CARRIERS, OR BY THE EXPRESS AND HOUSEHOLD GOODS CARRIERS. WHEN THE COMMON CARRIERS IN INTERSTATE COMMERCE CAME UNDER FEDERAL REGULATION THESE PRACTICES WERE RECOGNIZED AND ARTICLES OF UNUSUAL VALUE WERE EXPRESSLY EXCLUDED FROM THE CERTIFICATES OF COMMON CARRIERS OF GENERAL FREIGHT, BUT WERE INCLUDED IN THE OPERATING AUTHORITY OF HOUSEHOLD GOODS CARRIERS. IN THIS CONNECTION, ARTICLES OF EXTRAORDINARY VALUE WERE EXCLUDED IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION (NMFC). RULE 3 OF NMFC 15, MF-I.C.C. 2, PROVIDED:

PROPERTY OF EXTRAORDINARY VALUE NOT ACCEPTED - SEC. 1. UNLESS OTHERWISE PROVIDED, THE FOLLOWING PROPERTY WILL NOT BE ACCEPTED FOR SHIPMENT NOR AS PREMIUMS ACCOMPANYING OTHER ARTICLES:

BANK BILLS, OR CURRENCY OTHER THAN COIN ***; DEEDS, DRAFTS, NOTES OR VALUABLE PAPERS OF ANY KIND; JEWELRY; POSTAGE STAMPS: LETTERS WITH OR WITHOUT POSTAGE STAMPS AFFIXED, ***; PRECIOUS METALS OR ARTICLES MANUFACTURED THEREFROM; PRECIOUS STONES; OR REVENUE STAMPS ***.

AGAIN ANTIQUE PORCELAINS ARE NOT INCLUDED IN THIS DESCRIPTIVE DEFINITION OF ARTICLES OF EXTRAORDINARY VALUE.

TECHNOLOGICAL DEVELOPMENTS IN RECENT YEARS RESULTED IN GENERAL FREIGHT HAVING PER POUND VALUES GREATER THAN ARTICLES PREVIOUSLY LISTED AS BEING OF EXTRAORDINARY VALUE. THE INTERSTATE COMMERCE COMMISSION WAS, THEREFORE, CALLED UPON TO INTERPRET THE EXCLUSION PROVISION IN THE OPERATING AUTHORITY CERTIFICATES OF COMMON CARRIERS OF GENERAL FREIGHT.

IN NAVAJO FREIGHT LINES, INC., EXTENSION-SILVER, 95 M.C.C. 551 (1964), THE INTERSTATE COMMERCE COMMISSION, CONSIDERING THE CARRIAGE OF SILVER BULLION BY A COMMON CARRIER OF GENERAL COMMODITIES, HELD THAT BECAUSE OF HIGH VALUE, COUPLED WITH NEGOTIABILITY AND EXCHANGEABILITY IN CHANNELS OF COMMERCE, SILVER BULLION WAS AN ARTICLE OF UNUSUAL VALUE WITHIN THE RESTRICTION IN THE OPERATING AUTHORITY OF MOTOR COMMON CARRIERS OF GENERAL COMMODITIES. FOLLOWING THAT DECISION, IN GARRETT FREIGHT LINES, INC. - MODIFICATIONS, 106 M.C.C. 390 (1968), THE COMMISSION SAID, AT PAGE 395, "*** FOR PURPOSES OF TRANSPORTATION CLASSIFICATION THE TERM 'UNUSUAL VALUE' CLEARLY WAS NEVER INTENDED TO BE SYNONYMOUS WITH THE TERM 'HIGH VALUE,'" AND HELD, AT PAGE 398:

*** THAT THE LIMITATION "ARTICLES OF UNUSUAL VALUE" EMBRACES THE CONCEPT OF BOTH SERVICE AND VALUE ***. THE VALUE INVOLVED IS AN "INTRINSIC VALUE" BASED UPON RARITY, HIGH MONETARY VALUE (BOTH IN PERMANENCE AND MARKETABILITY), AND LEGAL USAGE OR NEGOTIABILITY IN CHANNELS OF COMMERCE

ALTHOUGH OF HIGH VALUE, IT DOES NOT APPEAR AND HAS NOT BEEN SHOWN THAT ANTIQUE PORCELAINS HAVE EVER BEEN LISTED IN THE CATEGORY OF ARTICLES OF EXTRAORDINARY VALUE OR POSSESS THE NEGOTIABILITY AND EXCHANGEABILITY IN THE CHANNELS OF COMMERCE WITHIN THE DEFINITION OF THE INTERSTATE COMMERCE COMMISSION. THEREFORE, THE ANTIQUE IMARI AND KUTANI PORCELAINS HAVE NOT BEEN SHOWN TO BE ARTICLES OF EXTRAORDINARY VALUE. AND THE PROVISION REQUIRING SEPARATE LISTING ON THE BILL OF LADING DOES NOT APPLY. APPARENTLY, YOUR AGENT AT ORIGIN WAS ALSO OF THE OPINION THAT THE ANTIQUE JAPANESE PROCELAINS DID NOT CONSTITUTE ARTICLES OF EXTRAORDINARY VALUE, SINCE CAPTAIN SHEW HAS STATED THAT ON INQUIRY YOUR AGENT ADVISED HER THAT THE DECLARED VALUATION OF $35,000 ON THE SHIPMENT WAS SUFFICIENT AND THAT NOTHING MORE WAS NECESSARY.

FURTHERMORE, IN RAILWAY EXPRESS AGENCY, INC. V. HUEBER, 191 S.W.2D 710 (1945), A PROVISION IN A UNIFORM EXPRESS RECEIPT, SIMILAR TO RULE 12 OF ALLIED'S TARIFF WHICH EXCLUDED CARRIER LIABILITY FOR ARTICLES OF EXTRAORDINARY VALUE UNLESS ENUMERATED, WAS HELD INVALID UNDER THE CARMACK AMENDMENT, 49 U.S.C. 20(11).

ALTHOUGH CAPTAIN SHEW GAVE A CLEAR RECEIPT ON DELIVERY AT DESTINATION, A RECEIPT, LIKE OTHER EVIDENCE, MAY BE EXPLAINED BY PAROL EVIDENCE. MEARS V. RAILROAD CO., 52 A. 610 (1902). THE RECORD SHOWS THAT THE SHORTAGE OF TWO PACKAGES WAS IN FACT NOTED BY CAPTAIN SHEW ON DELIVERY, BUT THAT THE CLEAR RECEIPT WAS EXECUTED ON THE REPRESENTATION BY YOUR AGENTS UNLOADING THE GOODS THAT THE TWO PACKAGES HAD BEEN DELIVERED. CAPTAIN SHEW SUBSEQUENTLY FOUND, HOWEVER, THAT THE TWO PACKAGES HAD NOT IN FACT BEEN DELIVERED.

THE RECORD SHOWS THAT THE CARRIER RECEIVED MORE GOODS AT ORIGIN THAN WERE DELIVERED AT DESTINATION, THEREBY ESTABLISHING A PRIMA FACIE CASE OF CARRIER LIABILITY FOR LOSS IN TRANSIT. GALVESTON, H. & S. A. RY. V. WALLACE, 223 U.S. 481, 492 (1911); GULF, C. & S. F. RY. V. GALBRAITH, 39 S.W.2D 91, 93 (1931). ALTHOUGH YOU ALLEGE THAT YOUR INVESTIGATION FAILED TO SHOW THE OCCURRENCE OF A LOSS AT ANY STAGE OF THE SHIPMENT, NO EVIDENCE HAS BEEN PRESENTED IN REBUTTAL OF THE PRIMA FACIE CASE MADE, OR TO SHOW THAT ANY LOSS WAS THE RESULT OF AN EXCEPTED CAUSE.

ACCORDINGLY, YOUR CLAIM IS DISALLOWED.