B-130915, JUN. 6, 1957

B-130915, JUN. 6, 1957

TO KOMINERS AND FORT:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1957, AND PREVIOUS LETTERS PERTAINING TO THE CLAIM OF THE COASTWISE LINE FOR $868.64, REPRESENTING AN AMOUNT DEDUCTED BY THE CIVIL AERONAUTICS ADMINISTRATION IN PARTIAL LIQUIDATION OF THE GOVERNMENT'S CLAIM FOR DAMAGES AMOUNTING TO $948.30 TO A SHIPMENT OF GENERATORS, ENGINES, AND SPARE PARTS, WHICH MOVED FROM SEATTLE, WASHINGTON, TO SEWARD, ALASKA, ON GOVERNMENT BILL OF LADING CCA- 905955 IN JULY 1952.

THE GOVERNMENT BILL OF LADING WAS MARKED FOR DELIVERY TO THE CIVIL AERONAUTICS ADMINISTRATION, CARE OF CHARLES ARCHER, SEWARD, ALASKA, FOR ULTIMATE DELIVERY AT KENAI, ALASKA. THE SHIPMENT WAS RECEIVED AT SEWARD BY THE RESIDENT ENGINEER ON AUGUST 10, 1952, AND A NOTATION APPEARS ON THE REVERSE OF THE BILL OF LADING TO THE EFFECT THAT THE SHIPMENT WAS DAMAGED BY SALT WATER AND OIL AND THAT THE INVOICE VALUE OR COST OF REPAIRS TO THE SHIPMENT WAS $948.30. THE RESIDENT ENGINEER REPORTS THAT NO ATTEMPT WAS MADE BY THE CARRIER TO PROTECT THE SHIPMENT FROM SALT WATER, RAIN WATER, OR SALT-LADEN AIR. MR. ARCHER, WHO WAS UNDER CONTRACT TO TRUCK THE MATERIAL FROM SEWARD TO KENAI, FOR THE GOVERNMENT, REPORTS THAT THE MATERIAL ARRIVED IN SEWARD WITHOUT ANY FORMAL NOTICE TO HIM OF ITS ARRIVAL; THAT IT WAS UNLOADED AND STORED BY THE CARRIER IN THE OPEN ON THE ARMY DOCK, WITHOUT ANY PROTECTION AGAINST THE WEATHER; AND THAT IT NEVER REACHED THE SEWARD FREIGHT WAREHOUSE WHERE INCOMING FREIGHT IS USUALLY DELIVERED.

IN YOUR LETTER OF OCTOBER 18, 1955, YOU ALLEGE THAT DELIVERY TO THE INLAND CARRIER WITHOUT A NOTATION OF EXCEPTIONS RELIEVED THE COASTWISE LINE OF ANY RESPONSIBILITY UNDER THE PROVISIONS OF ITS CONTRACT OF CARRIAGE, AND YOU FURTHER ALLEGE THERE IS EVIDENCE THAT THE GENERATORS WERE NOT PROPERLY PACKAGED IN THE FIRST INSTANCE. INSOFAR AS THE GOVERNMENT BILL OF LADING CONTRACT IS CONCERNED THE INSTANT CARRIER IS NOT RELIEVED OF LIABILITY FOR DAMAGE MERELY BECAUSE IMMEDIATE NOTICE OF DAMAGE IS NOT GIVEN. IN THIS CONNECTION THE CARRIER HAS FURNISHED NO DOCUMENTARY PROOF EVIDENCING A CLEAR DELIVERY OF THE MATERIAL TO THE CONSIGNEE OR ANY OTHER REPRESENTATIVE OF THE GOVERNMENT AT THE ARMY DOCK WHERE THE MATERIAL WAS UNLOADED. AS TO THE ALLEGATION PERTAINING TO THE MANNER IN WHICH THE SHIPMENT WAS PACKAGED, IT IS TO BE NOTED THAT UNDER THE PROVISION OF ITEM 340 OF THE CARRIER'S LOCAL AND PROPORTIONAL FREIGHT TARIFF 1-A IT WAS OPTIONAL WITH THE CARRIER TO REFUSE THE SHIPMENT, OR TO ACCEPT IT WITH A NOTATION ON THE BILL OF LADING RELEASING THE CARRIER OF ANY DAMAGE THAT MAY BE SUSTAINED. NO SUCH NOTATION HAS BEEN FOUND ON THE SUBJECT BILL OF LADING.

THE RECORD IN THIS MATTER INDICATES THAT THE DAMAGE TO THE MATERIAL OCCURRED AFTER IT WAS UNLOADED BY THE CARRIER AT THE ARMY DOCK, UNPROTECTED FROM THE ELEMENTS, AND BEFORE THE CONSIGNEE RECEIVED NOTICE OF ITS ARRIVAL. THE DAMAGE APPARENTLY WOULD NOT HAVE OCCURRED IF THE CARRIER HAD UNDERTAKEN TO AFFORD PROPER NOTICE AND TO MAKE A PROPER DELIVERY. THE INFORMATION ON THE BILL OF LADING WAS DEEMED INSUFFICIENT TO ENABLE THE CARRIER TO MAKE THE INDICATED DELIVERY, THE CARRIER SHOULD HAVE OBTAINED ADDITIONAL INFORMATION. SEE 10 C.J. CARRIERS, SECTION 146 (4); ALSO, 13 C.J.S. CARRIERS, SECTION 160. THERE IS NO INDICATION OF ANY TIMELY ATTEMPT BY THE CARRIER TO LOCATE THE PARTY DESIGNATED ON THE BILL OF LADING AS THE ONE TO WHOM THE PROPERTY WAS TO BE TRANSFERRED AND THE CARRIER WAS LIABLE FOR ANY ADVERSE CONSEQUENCES THAT AROSE BECAUSE OF THE DELAY FOR WHICH IT WAS AT FAULT.

ACCORDINGLY, THE ACTION OF THE ADMINISTRATIVE OFFICE IN MAKING THE DEDUCTION DOES NOT APPEAR TO HAVE BEEN IN ERROR AND, AS THE TOTAL AMOUNT OF THE DAMAGES WAS $948.30, THE OUTSTANDING AMOUNT OF $79.66 ($948.30 LESS $868.64) SHOULD BE PROMPTLY REMITTED; OTHERWISE, APPROPRIATE STEPS WILL BE TAKEN TO EFFECT COLLECTION OF THIS AMOUNT.