B-135772, AUG. 3, 1959

B-135772, AUG. 3, 1959

TO GULF MOBILE AND OHIO RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, PER FILE NUMBER GOVT. G-37752-CL 24, FOR REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR $105.63, REPRESENTING FIFTY PERCENT OF THE VALUE OF ONE BOX OF AIRPLANE WHEELS LOST FROM A SHIPMENT OF GOVERNMENT PROPERTY MOVING FROM THE NEW YORK PORT OF EMBARKATION TO BROOKLEY AIR FORCE BASE, ALABAMA, IN JANUARY 1952, UNDER GOVERNMENT BILL OF LADING NO. WW 9558466.

THE RECORD IN THE INSTANT CASE SHOWS THAT THE LESS-THAN-CARLOAD SHIPMENT OF 82 BOXES, INCLUDING ONE BOX CONTAINING AIRPLANE WHEELS, WEIGHING 130 POUNDS, WAS RECEIVED BY THE INITIAL CARRIER, BUSH TERMINAL RAILWAY COMPANY, ON JANUARY 10, 1952. THE SHIPPING INSTRUCTIONS ON THE BILL OF LADING AUTHORIZED SHIPMENT VIA "BT AND NEC. CONN. LINES" AND BY "PKG CAR IF AVAILABLE.' THE SHIPMENT APPARENTLY WAS LOADED INITIALLY IN A FERRY CAR, AND ALTHOUGH THE BILL OF LADING SHOWS THE INITIAL CAR NUMBER TO HAVE BEEN ACL 14290, THE SHIPMENT SEEMS TO HAVE BEEN TRANSFERRED, WHILE EN ROUTE TO THE BILLED DESTINATION, TO CAR CB AND Q 16970.

WHEN UNLOADED AT DESTINATION, THE SHIPMENT CHECKED SHORT "ONE (1) BOX WHEELS AIRPLANE WT. 130 LBS., TALLY R-503173, ST 52-09616 CONTAINING ONE (1) EACH 4109-530402M WHEEL ASSY. AT $203.90--- $20390. 130 LBS. $203.90," AS NOTED ON THE REVERSE OF THE BILL OF LADING. THE INDICATED AMOUNT, PLUS UNEARNED FREIGHT, WAD DEDUCTED FROM YOUR BILL G-37752, TO REIMBURSE THE GOVERNMENT FOR THIS LOSS. YOUR CLAIM FOR $105.63, TREATED HERE AS AN OFFER TO SETTLE THIS MATTER ON A FIFTY PERCENT BASIS, WAS DISALLOWED FOR THE REASON THAT YOU PRESENTED NOTHING TO OVERCOME THE PRESUMPTION OF NEGLIGENCE ARISING FROM YOUR FAILURE TO DELIVER THE BOX OF AIRPLANE WHEELS IN GOOD ORDER AND CONDITION AND, THEREFORE, THERE APPEARED TO BE NO BASIS FOR SETTLEMENT FOR LESS THAN THE FULL VALUE OF THE LOST ARTICLES.

YOUR PRESENT CONTENTION APPEARS TO BE THAT YOU DO NOT CONSIDER YOUR CLAIM AS BEING ON "A COMPROMISE BASIS AS IT HAS BEEN A LONG ESTABLISHED FACT, WHEN THE RESPONSIBILITY FOR LOSS CANNOT BE DETERMINED, THAT CARRIERS ARE ONLY LIABLE FOR FIFTY PERCENT.'

IN CASES OF DOUBTFUL LIABILITY, AND WHERE THE RECORD DOES NOT CLEARLY ESTABLISH THE MEASURE OF DAMAGES, THERE MAY EXIST A COMMONLY ACCEPTED AREA FOR AGREED SETTLEMENTS. HOWEVER, IN INSTANCES WHERE, AS HERE, THE RECORD SHOWS DELIVERY TO THE INITIAL CARRIER, AND FAILURE TO DELIVER AT DESTINATION, THERE IS CLEARLY PRESENTED A CASE OF CARRIER LIABILITY, AND WE ARE NOT APPRISED OF ANY RULE OF LAW THAT REQUIRES ADJUSTMENT ON ANY BASIS OTHER THAN FULL VALUE. WHEN THE GOVERNMENT, AS CONSIGNEE AND HOLDER OF THE BILL OF LADING, DETERMINED THAT THE BOX OF AIRPLANE WHEELS HAD NOT BEEN DELIVERED, THE PRESUMPTION AROSE THAT THE BOX HAD BEEN LOST BY REASON OF THE NEGLIGENCE OF THE DELIVERING CARRIER OR ITS AGENTS. THE BURDEN OF PROOF THAT THE LOSS RESULTED FROM SOME CAUSE FOR WHICH THE CARRIER WAS NOT RESPONSIBLE IN LAW OR BY CONTRACT WAS THEN CAST UPON THE CARRIER. GALVESTON, HARRISBURG AND SAN ANTONIO RAILWAY CO. V. WALLACE, 223 U.S. 481.

THE INSTANT MATTER IS NOT, AS YOU TERM IT,"AN UNDETERMINED LOSS.' THE RECORD IS CLEAR THAT 82 BOXES, INCLUDING ONE BOX OF AIRPLANE WHEELS WERE DELIVERED TO THE INITIAL CARRIER, AND YOUR WAREHOUSE FOREMAN AT MOBILE, ALABAMA, ADMITS THAT YOUR COMPANY RECEIVED, AND STATES THAT THERE WAS RELOADED INTO ANOTHER CAR, 82 BOXES. ONLY 81 BOXES ARRIVED AT DESTINATION. THIS IS CLEARLY NOT A CASE OF TALLY ERROR, WITH EQUAL OPPORTUNITY FOR ERROR IN COUNTING A NUMBER OF IDENTICAL ITEMS AT EITHER ORIGIN OR DESTINATION. ONLY ONE BOX OF AIRPLANE WHEELS WAS SHIPPED, AND THE ADMINISTRATIVE OFFICE REPORTS THAT THE ONE BOX WAS NOT DELIVERED. INASMUCH AS YOU HAVE PRESENTED NO EVIDENCE TO OVERCOME THE PRESUMPTION OF NEGLIGENCE ARISING FROM YOUR FAILURE TO DELIVER, THE DEDUCTION ACTION BY THE ADMINISTRATIVE OFFICE APPEARS TO HAVE BEEN PROPER. ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM APPEARS TO HAVE BEEN CORRECT, AND IS HEREBY SUSTAINED.