B-135289, JAN 28, 1959

B-135289, JAN 28, 1959

PRECIS-UNAVAILABLE

RUTHERFORD FREIGHT LINES, INC.:

WE HAVE EXAMINED THE CONTENTIONS RAISED IN YOUR LETTER OF DECEMBER 1, 1958, WHICH REQUESTS REVIEW OF OUR SETTLEMENT (IN CLAIM NO. TK 600499), DATED MAY 6, 1959, DISALLOWING THE CLAIM OF RUTHERFORD FREIGHT LINES, INC., IN CONNECTION WITH THE LOSS OF THIRTY BALES OF SOCKS (SIZE 11) WHICH MOVED, DURING FEBRUARY 1945, FROM JEFFERSONVILLE, INDIANA, TO BELLBLUFF, VIRGINIA, UNDER GOVERNMENT BILL OF LADING NO. WV-6538522.

YOUR LETTER OF JANUARY 11, 1958, NOTED AS BEING "SUPPLEMENTARY" TO YOUR LETTER OF NOVEMBER 8, 1957, WAS CONSIDERED FULLY IN THE SETTLEMENT OF YOUR CLAIM. PORTIONS OF THE DECEMBER 1ST LETTER WHICH RELATE TO THE PROBATIVE SUFFICIENCY OF AFFIDAVITS PREFFERED BY CARRIER EMPLOYEES, UNSUPPORTED STATEMENTS OFFERED IN EXPLANATION OF THE DISPARITY EXISTING BETWEEN CONSIGNEE AND CARRIER COPIES OF DELIVERY RECEIPTS, AND THE UNILATERAL DECLARATION THAT "NO ACTUAL SHORTAGE OCCURRED AT THE HANDS OF THE CARRIER," CONSTITUTE ASSERTIONS WHICH WE BELIEVE WERE MET ADEQUATELY IN PREVIOUS CORRESPONDENCE FROM OUR OFFICE AND THE DEPARTMENT OF THE ARMY. SINCE YOU NOW FURNISH NO ADDITIONAL DOCUMENTARY EVIDENCE IN SUPPORT OF THESE ASSERTIONS AND SINCE OUR RE EXAMINATION OF THE RECORD DISCLOSES NOTHING TO SUGGEST ANY MODIFICATION OF OUR EARLIER SETTLEMENT ACTION, NO USEFUL PURPOSE WOULD BE SERVED IN ANY DETAILED RESTATEMENT OF FACTS ADDUCED FROM THE RECORD AND COMMUNICATED TO YOU PREVIOUSLY. WHERE UNSUPPORTED BY PROBATIVE EVIDENCE, THE PERSONAL VIEWS AND SUPPOSITIONS OF CLAIMANTS CANNOT BE GIVEN ANY CONTROLLING EFFECT, SINCE OUR DETERMINATIONS ARE LIMITED BY, AND PREDICATED UPON, COMPETENT WRITTEN RECORDS.

WE FAIL, MOREOVER, TO UNDERSTAND HOW YOUR CONTENTION THAT THE "30 BALES REPRESENTED BY THIS CLAIM WERE ACTUALLY DELIVERED" TO THE CONSIGNEE, IS SUPPORTED, AS ALLEGED, BY THE PARTIALLY QUOTED STATEMENT OF ADDITIONAL FINDINGS CONTAINED IN THE REPORT OF CAPTAIN THOMAS S. LLOYD, SURVEYING OFFICER, RICHMOND GENERAL DEPOT, UNITED STATES ARMY. OUR RECORDS DISCLOSE THAT THE 30 BALES OF HOSIERY HERE INVOLVED, WHICH MOVED DURING FEBRUARY 1945, CONTAINED SIZE 11 SOCKS. IN HIS RECAPITULATION OF THE AVERAGES EXISTING BOTH PRIOR AND SUBSEQUENT TO THE INSTANT MOVEMENT, CAPTAIN LLOYD CONCLUDED THAT AFTER THE INSTANT MOVEMENT OCCURRED "AN AVERAGE OF ONLY 3,963 PAIRS OF SOCKS OF ALL (EXISTED) AS AGAINST AN INCREASE OF 7,200 PAIRS OF SIZE 11 SOCKS THAT WOULD HAVE BEEN SHOWN IN THE INVENTORY HAD THE SHORTAGE OF 30 BALES OF SOCKS BEEN DELIVERED TO THIS DEPOT ON 20 FEBRUARY 1945, IN ACCORDANCE WITH THE CARRIER'S ALLEGATION." THE IMPORT OF YOUR ASSERTION, THEREFORE, IS NOT CLEAR, SINCE CAPTAIN LLOYD'S STATEMENT LOGICALLY SUPPORTS THE GOVERNMENT'S CLAIM, AS THE OFFICER CONCLUDES BY CONTINUING TO RECOMMEND THAT THE CARRIER SHOULD BE HELD LIABLE. THE ADMINISTRATIVE OFFICE CONSISTENTLY MAINTAINS, IN THE VARIOUS LETTERS AND REPORTS IN THIS RECORD, THAT THE MISSING BALES OF SOCKS WERE NEVER RECEIVED AND THAT THE CARRIER HAS NOT ESTABLISHED FREEDOM FROM LIABILITY.

THE ARMY'S REPORT OF LOSS, DAMAGE, OR SHRINKAGE ON THE BACK OF GOVERNMENT BILL OF LADING NO. WV-6538522 AND THE NOTATION "30 TO FOLLOW" CONTAINED IN THE ORIGINAL DELIVERY RECEIPT SIGNED BY YOUR AGENT AND FURNISHED TO THE CONSIGNEE, INDICATE CLEARLY THAT THE MISSING PROPERTY WAS CHECKED SHORT AT BILLED DESTINATION, AND WE HAVE BEEN FURNISHED NOTHING TO JUSTIFY ACCEPTING AS PROVEN THE CONTENTION THAT THE CARRIER MADE GOOD DELIVERY AT A LATER TIME. INSOFAR AS THE TRUCK DRIVER'S AFFIDAVITS ARE CONCERNED, WE CANNOT GIVE THEM CONTROLLING WEIGHT IN THE ABSENCE, AS HERE, OF ANY SUPPORT BY THE ARMY.

THE BILL OF LADING ITSELF CONSTITUTES WEIGHTY AND PRIMA FACIE EVIDENCE OF THE DELIVERY TO THE CARRIER OF THE GOODS IN THE QUANTITY DESCRIBED THEREIN. WHEN COUPLED WITH EVIDENCE THAT THE CARRIER RETURNED GOODS IN LESSER QUANTITY THAN DESCRIBED IN THE BILL OF LADING, THE SHIPPER'S BURDEN OF PROOF HAS BEEN FULLY MET. JOSEPH TOKER CO., INC. V. LEHIGH VALLEY RAILROAD CO., 97 A. 2D 598, 600 (1953); GALVESTON, HARRISBURG AND SAN ANTONIO RAILWAY COMPANY V. WALLACE, 223 U.S. 481 (1912). NOR IS IT INCUMBENT UPON A SHIPPER TO EXPLORE HYPOTHESES OFFERED BY A CARRIER OR INDULGE IN THE NECESSITY OF GOING INTO CIRCUMSTANCES IMPOSSIBLE TO BE UNRAVELLED, SINCE THE LAW PRESUMES AGAINST THE CARRIER. SEE MONTGOMERY WARD AND CO. V. NORTHERN PACIFIC TERMINAL CO., 128 F. SUPP. 475, 493 (1953).

SINCE NO COMPETENT MATTER ESTABLISHING THE INCORRECTNESS OF OUR SETTLEMENT HAS BEEN PRESENTED WITH YOUR REQUEST FOR REVIEW, THE SETTLEMENT IS SUSTAINED.