B-132429, SEP. 9, 1957

B-132429, SEP. 9, 1957

TO LIEUTENANT COLONEL R. E. POWELL CHIEF, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1956, FILE SEDB-22 AF 3 384 C60 AND AF 3 383 793, TRANSMITTING TO OUR OFFICE FOR COLLECTION TWO CLAIMS--- IN THE AGGREGATE AMOUNT OF $5,344.39 AGAINST THE ATCHISON,TOPEKA AND SANTA FE RAILROAD COMPANY. YOU STATE THAT THE ENTIRE SHIPMENT ON EACH BILL OF LADING--- AF-3 383 793 AND AF- 3 384 060--- WAS DELIVERED IN A DAMAGED CONDITION, AND THAT THE DAMAGES WERE THE RESULT OF IMPROPER LOADING OF THE SHIPMENTS AND ROUGH HANDLING IN TRANSIT.

THE RECORD SHOWS THAT EACH OF THESE SHIPMENTS, DESCRIBED IN THE BILL OF LADING AS AIR COMPRESSORS, ACTUALLY CONSISTED OF 75 CANS OF SUPERCHARGERS. THE SUPERCHARGERS WERE REPORTED AS HAVING A VALUE OF $5,000 EACH. THE CANS OR CONTAINERS IN WHICH THE SUPERCHARGERS WERE PACKED, WERE CONSTRUCTED OF AT LEAST 1/4 INCH STEEL, MADE IN TWO UNITS, TOP AND BOTTOM, WITH A FLANGE AROUND THE OUTER CIRCUMFERENCE AT TOP, AND IN SOME INSTANCES AT THE BOTTOM, AS WELL AS APPROXIMATELY A THIRD OF THE DISTANCE UP FROM THE BOTTOM. THE CONTAINERS WERE NOT UNIFORM IN IZE; SOME WERE APPROXIMATELY 38 INCHES HIGH, AND OTHERS 33 INCHES HIGH. THE GROSS WEIGHT OF THE ENTIRE UNIT AND CONTENTS WAS 410 POUNDS, THE CONTAINER MAKING UP APPROXIMATELY ONE-HALF OF THE GROSS WEIGHT AND THE CONTENTS THE BALANCE. EACH CONTAINER IS SAID TO HAVE BEEN EQUIPPED WITH TWO 4 BY 4 TIMBERS SECURED TO THE BOTTOM AS SKIDS AND SEPARATORS, AND THE SUPERCHARGERS ARE SHOWN TO HAVE BEEN SECURED TO A METAL RING BY BOLTS INSIDE OF THE CONTAINERS, THIS RING IN TURN BEING SUSPENDED ON FOUR "LORD" MOULDED RUBBER SHOCK MOUNTS, EQUALLY SPACED AROUND THE BOTTOM PORTION OF THE CONTAINER, WITH THE TOP PORTION OF THE CONTAINER MERELY ACTING AS A COVER OR SEAL.

THE RECORD SHOWS, FURTHER, THAT THESE CONTAINERS AND CONTENTS WERE LOADED BY GOVERNMENT PERSONNEL AT THE BROOKLEY AIR FORCE BASE, MOBILE, ALABAMA. THE RECORD CONTAINS TWO REPORTS BY THE BROOKLEY AIR FORCE BASE ON THE CONDITION OF THE CANS AND THE LOADING OF THE SHIPMENT AT ORIGIN. A REPORT DATED SEPTEMBER 7, 1955, SHOWS THAT AN UNDETERMINED NUMBER OF THE CONTAINERS WERE DENTED AND HAD BENT FLANGES PRIOR TO BEING LOADED AT THAT POINT. ANOTHER REPORT, DATED SEPTEMBER 26, 1955, SHOWS THAT THE "LOADING, BLOCKING AND BRACING DID NOT ENTIRELY COMPLY WITH AAR STANDARDS AS REQUIRED BY PAR B-4, PAMPHLET NO. 4, RULES REGULATING THE SAFE LOADING OF CARLOAD SHIPMENTS OF BARRELS, DRUMS OR KEGS INCLOSED CARS AND PROTECTION OF EQUIPMENT, ISSUED NOVEMBER 1941 AND REVISED JANUARY 1948.' THE REPORT SHOWS THAT THIS PARAGRAPH REQUIRES 1 INCH FILLERS TO BE PLACED LENGTHWISE OF THE CAR. ALSO, THE REPORT CONTAINS THE INFORMATION THAT THE CONTAINERS WERE NOT SEGREGATED BY SIZE AND THAT THE CARRIER'S INSPECTION WAS NEITHER REQUESTED NOR PERFORMED PRIOR TO SHIPMENT.

UPON ARRIVAL OF THESE TWO SHIPMENTS AT DESTINATION IT WAS FOUND THAT BOTH SHIPMENTS HAD SUFFERED EXTENSIVE DAMAGE IN TRANSIT. THE REPORTS OF THE INSPECTION AND SURVEYING OFFICERS AND THE PHOTOGRAPHS OF THE CARS AND THE CONTAINERS UPON ARRIVAL AT DESTINATION CLEARLY SHOW THE DAMAGE WHICH IS ALLEGED TO HAVE OCCURRED IN TRANSIT. THE ABOVE MENTIONED REPORT OF SEPTEMBER 7, 1957, SHOWS THAT THE FOLLOWING FACTS ARE RELIED UPON TO SUBSTANTIATE THE CLAIM OF ROUGH HANDLING OF THE SHIPMENTS BY THE CARRIERS:

"A. ALL STEEL STRAPPING WAS BROKEN. (STRAPPING USED IN THESE CARS WAS APPROXIMATELY ONE AND ONE-FOURTH INCHES WIDE.)

"B. TIMBERS (4 INCHES BY 4 INCHES), TO WHICH STRAPPING WAS ANCHORED, WAS BROKEN.

"C. MOUNTING BOLTS, APPROXIMATELY ONE INCH IN DIAMETER, WERE SHEARED.'

THE INSPECTION REPORT PREPARED AT DESTINATION, BY THE ROHS AIRCRAFT CORPORATION, SHOWS THAT CARS SHOWED "EVIDENCE OF BEING JARRED SEVERELY OR HUMPED," AND THE REPORT OF THE CARRIER'S INSPECTOR IS TO THE EFFECT THAT THE CARS WERE APPARENTLY ROUGH HANDLED.

THE RECORD SHOWS THAT THE COST OF LABOR AND MATERIAL ENTERING INTO THE REPAIR OF THESE SUPERCHARGERS WAS $3,181.72 AND THE TRANSPORTATION TO THE REPAIR PLANT WAS $2,172.72 MAKING A TOTAL OF $5,354.44 SUBJECT TO A CREDIT TO THE CARRIER FOR SALVAGE MATERIAL SOLD AS SCRAP OF $10.05. THIS LEAVES A DEBT AGAINST THIS CARRIER OF $5,344.39. IT IS FOR NOTING THAT THIS ITEM SHOULD BE $2,100.54, OR $1050.27 FOR EACH CAR. THE BASIS FOR THIS CHARGE IS NOT KNOWN.

THE CARRIER, BY LETTER DATED AUGUST 14, 1956, AND ENCLOSURE, COPIES ENCLOSED, SETS FORTH ITS POSITION IN THE MATTER AND HAS OFFERED TO SETTLE THIS CLAIM FOR 50 PERCENT OF THE LOSS.

THE CARS INVOLVED IN THIS CASE WERE LOADED BY THE SHIPPER, AND A CARRIER IS NOT LIABLE FOR DAMAGE RESULTING FROM IMPROPER LOADING OR OTHER CARELESSNESS ON THE PART OF THE SHIPPER. LEVER BROTHERS CO. V. BALTIMORE AND OHIO R.CO., 164 F.2D 738; BLYTHEVILLE COTTON OIL CO. V. KURN, 155 F.2D 467; MODERN TOOL CORP. V. PENNSYLVANIA R.CO., 100 F.SUPP. 595. HOWEVER, CONCURRING NEGLIGENCE OF THE CARRIER WILL MAKE IT RESPONSIBLE. LEHIGH VALLEY R.CO. V. STATE OF RUSSIA, 21 F.2D 406, 408; EMERSON ELEC. MFG. CO. V. TERMINAL R.R. ASS-N. OF ST. LOUIS, 262 S.W. 2D 323; MITCHELL V. NORTH PACIFIC S.S. CO., 213 P. 293. ALSO, THE PLAINTIFF (THE GOVERNMENT IN THIS CASE) MUST PROVE DELIVERY OF THE SHIPMENT TO THE CARRIER IN GOOD ORDER, OR PROVE AT LEAST THAT IT WAS DELIVERED TO THE CARRIER IN BETTER ORDER AND CONDITION THAT IT WAS IN WHEN RECEIVED AT DESTINATION. OHIO GALVANIZING AND MFG. CO. V. SOU.PAC. CO., 39 F.2D 840; HAMILTON FOODS, INC. V. ATCHISON, T. AND S.FE.RY. CO., 83 F.SUPP. 478; COLOTRA V. RY. EXP. AGCY., 32 SO.2D 69. IN THIS CONNECTION, THERE IS FOR CONSIDERATION THE REPORT OF SEPTEMBER 7, 1955, IN WHICH THE CHIEF OF THE TRANSPORTATION DIVISION, BROOKLEY AIR FORCE BASE, REPORTED THAT A RECHECK OF THE RECORDS REVEALED THAT AN UNDETERMINED NUMBER OF THE CONTAINERS WERE DENTED AND HAD BENT FLANGES PRIOR TO LOADING. THE CARRIER NOW ALLEGES THAT THE RECORDS OF THE INTERESTED CARRIERS INDICATE THAT NEITHER CAR RECEIVED ANY ROUGH HANDLING, AND THAT THE MANNER IN WHICH THE CARS WERE LOADED BY THE SHIPPER WAS THE PRIMARY CAUSE OF THE DAMAGE. THE CARRIER HAS INDICATED, HOWEVER, THAT SINCE THE CARS MIGHT HAVE RECEIVED SOME ROUGH HANDLING, IT IS WILLING TO PAY FIFTY PERCENT OF THE DAMAGE.

ACCORDINGLY, AFTER CONSIDERING WHAT HAS BEEN SAID ABOVE, AND THE FACT THAT THE GOVERNMENT WILL HAVE THE BURDEN OF PROVING IN DETAIL THE AMOUNT OF THE DAMAGE ALLEGEDLY SUSTAINED, YOUR VIEWS AND RECOMMENDATIONS ON THE COMPROMISE OFFER ARE REQUESTED.