B-148273, SEP. 25, 1962

B-148273, SEP. 25, 1962

TO JOHNSON MOTOR TRANSPORT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1962, IN WHICH YOU REQUESTED REVIEW OF OUR SETTLEMENT CERTIFICATE DATED FEBRUARY 15, 1962. THE CERTIFICATE PERTAINED TO YOUR SUPPLEMENTAL BILL NO. 1058, DATED MAY 31, 1961, AND DISALLOWED YOUR CLAIM FOR $184.80, ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF PROPERTY COVERED BY GOVERNMENT BILL OF LADING A 1963986.

THE SHIPMENT IN QUESTION CONSISTED OF 246 PIECES OF FREIGHT OF ALL KINDS, WEIGHING 32,050 POUNDS, CONSIGNED FROM NORFOLK, VIRGINIA, TO KITTERY, MAINE, WITH A STOP-OFF FOR PARTIAL UNLOADING AT BOSTON, MASSACHUSETTS. THE SPACE PROVIDED FOR STOP-OFF INSTRUCTIONS, THE BILL OF LADING BORE A NOTATION INDICATING THAT THE TRUCK CARRYING THE SHIPMENT WAS TO BE STOPPED AT BOSTON NAVAL SHIPYARD TO UNLOAD "22 PCS 4,049 LBS. CU 104.' THIS INSTRUCTION ON THE FACE OF THE BILL OF LADING WAS IN ERROR AS TO THE NUMBER AND WEIGHT OF THE PIECES TO BE UNLOADED AT BOSTON AND CONFLICTED WITH THE INFORMATION SHOWN IN THE BILL OF LADING CONTINUATION SHEETS WHICH SPECIFICALLY IDENTIFIED THE INDIVIDUAL ITEMS DESTINED FOR BOSTON; THESE AGGREGATED 224 PIECES WEIGHING 28,001 POUNDS. THE BILL OF LADING SHOWS THAT TWO ENVELOPES CONTAINING MEMORANDUM COPIES OF THE BILL OF LADING AND SUPPORTING PAPERS WERE SECURED TO THE LAST PACKAGE IN THE TRUCK. THE OBVIOUS PURPOSE OF THE INCLUSION OF THESE PAPERS WITH THE SHIPMENT WAS TO PERMIT IDENTIFICATION BY THE TRUCK DRIVER AND THE RECEIVING OFFICERS AT BOSTON OF THE SPECIFIC PIECES TO BE UNLOADED AT THAT POINT.

THE RECORD HERE SHOWS THAT THE SHIPMENT WAS RECEIPTED FOR AT ORIGIN MARCH 14, 1961, THAT THE SHIPMENT WAS STOPPED AT BOSTON, MARCH 23, 1961, AT WHICH TIME 224 PIECES WEIGHING 28,001 POUNDS WERE UNLOADED, AND THAT THE BALANCE OF THE SHIPMENT WAS DELIVERED AT KITTERY MARCH 27,1961. THERE IS NOTHING IN THE RECORDS HERE TO SHOW THAT THE SHIPMENT WAS TRANSPORTED TO KITTERY PRIOR TO THE PARTIAL UNLOADING AT BOSTON ON MARCH 23, 1961, AND THE RECEIVING OFFICER, PORTSMOUTH NAVAL SHIPYARD, REPORTS NO RECORD OF THE SHIPMENT HAVING BEEN STOPPED TWICE AT KITTERY. SO FAR AS THE DOCUMENTARY RECORD IS CONCERNED, THE SHIPMENT WAS TRANSPORTED AND DELIVERED IN ACCORDANCE WITH THE SPECIFIC INSTRUCTIONS IN THE BILL OF LADING CONTINUATION SHEETS.

ON APRIL 5, 1961, A BILL OF LADING CORRECTION NOTICE, NAV.S. AND A. FORM 1076, WAS ISSUED BY THE CONSIGNOR, NORFOLK NAVAL SHIPYARD, TO CORRECT THE ERROR SHOWN ON THE FACE OF THE BILL OF LADING IN ORDER TO REFLECT WHAT WAS BELIEVED TO BE THE ACTUAL SERVICE PERFORMED. BY BILL NO. 1051, DATED MAY 4, 1961, YOU BILLED FOR THIS SHIPMENT ON THE BASIS OF A THROUGH RATE OF $1.49 PER 100 POUNDS, APPLICABLE FROM NORFOLK TO KITTERY, APPLIED TO THE TOTAL WEIGHT OF THE SHIPMENT (32,050 POUNDS), PLUS A CHARGE OF $16.05 FOR THE STOP-OFF AT BOSTON. THIS BILL WAS SUPPORTED BY THE ORIGINAL BILL OF LADING AND A CERTIFICATE, SD FORM 525.3, CERTIFYING THAT STOP-OFF AND UNLOADING OF 28,001 POUNDS AT BOSTON WAS ACCOMPLISHED. THE STOP-OFF NOTATION ON THE FACE OF THE ORIGINAL BILL OF LADING HAD BEEN CORRECTED TO READ "224 PCS 28,001 LBS. CU 1.198.' YOUR BILL NO. 1051 WAS PAID IN THE FULL AMOUNT AND, THEREAFTER, BY BILL NO. 1058, DATED MAY 31, 1961, YOU CLAIMED ADDITIONAL CHARGES OF $184.80 BASED ON A LOCAL RATE FROM BOSTON TO KITTERY AND FROM KITTERY TO BOSTON APPLIED TO A WEIGHT OF 28,001 POUNDS. THIS BILL WAS SUPPORTED BY A COPY OF THE BILL OF LADING CORRECTION NOTICE DATED APRIL 5, 1961, AND WAS DISALLOWED BY OUR CERTIFICATE OF SETTLEMENT.

IN YOUR LETTER OF FEBRUARY 21, 1962, YOU INDICATE THAT THE ENTIRE SHIPMENT MOVED FROM NORFOLK TO KITTERY, THAT WHEN YOU ATTEMPTED DELIVERY AT KITTERY "IT WAS DISCOVERED THAT THE BOSTON NSY STOP OFF OF 28001 NO. WAS ON THE REAR," AND THAT IT WAS NECESSARY TO RETURN THE TRAILER TO ASSOCIATED TRANSPORT FOR DELIVERY OF THE STOP-OFF MATERIAL TO BOSTON. YOU ATTRIBUTE THIS SITUATION TO "SHIPPER'S ERROR.' IN THE LAST PARAGRAPH OF YOUR LETTER OF FEBRUARY 21, YOU STATE:

"SINCE GBL A1963986 STATED STOP OFF AT BOSTON OF 4049 LBS., ASSOC TRANSPORT NATURALLY WOULD ASSUME THAT TRUCK WAS INCORRECTLY LOADED AS SHIPMENT OF 28001 NO. WAS ON THE REAR AND THE AFOREMENTIONED GBL INDICATES THAT THIS SHOULD HAVE GONE TO KITTERY. IN OTHER WORDS, IF GBL HAD BEEN PROPERLY MARKED,"STOP OFF AT BOSTON NSY TO UNLOAD 224 PCS., AT 28001 LBS., " ASSOC.TRANS. WOULD HAVE DELIVERED STOP OFF BEFORE WE GOT THE TRAILER. THIS APPEARS TO BE SHIPPER'S ERROR AND WE ARE AGAIN SUBMITTING BILL FOR YOUR CONSIDERATION"

THE DIFFICULTY WITH THIS PREMISE IS THAT IT ASSUMES THAT THE NOTATION ON THE FACE OF THE BILL OF LADING WAS RESPONSIBLE FOR A CONCLUSION BY YOUR CONNECTING CARRIER THAT THE SHIPMENT WAS IMPROPERLY LOADED AND THAT DELIVERY OF THE ENTIRE SHIPMENT TO KITTERY WITHOUT STOP-OFFAT BOSTON WAS JUSTIFIED. WE DO NOT SEE HOW THE ERROR IN THE NOTATION ON THE FACE OF THE BILL OF LADING COULD HAVE CAUSED THIS RESULT. THE NOTATION ON THE FACE OF THE BILL OF LADING INSTRUCTED THE CARRIER TO STOP THE TRUCK AT BOSTON TO UNLOAD 22 PIECES WEIGHING 4,049 POUNDS BUT THE NOTATION DID NOT IDENTIFY THE INDIVIDUAL PIECES TO BE UNLOADED. IN ORDER TO DETERMINE WHICH OF THE PIECES IN THE SHIPMENT CONSTITUTED THE 22 PIECES REFERRED TO IN THE ERRONEOUS NOTATION AND WHICH OF THE PIECES CONSTITUTED THE BALANCE OF 224 PIECES WEIGHING 28,001 POUNDS, IT WAS NECESSARY TO REFER TO THE SHIPPING DOCUMENTS ACCOMPANYING THE LOAD OR TO MAKE INQUIRY OF THE RECEIVING OFFICERS AT BOSTON. SUCH REFERENCE OR INQUIRY NECESSARILY WOULD HAVE DISCLOSED THE ERROR. IT IS NOT UNDERSTOOD HOW THE CARRIER COULD HAVE CONCLUDED THAT THE SHIPMENT WAS IMPROPERLY LOADED WITHOUT KNOWING WHICH OF THE PIECES IN THE LOAD WERE REFERRED TO IN THE NOTATION ON THE BILL OF LADING OR HOW SUCH INFORMATION COULD HAVE BEEN OBTAINED WITHOUT THE ERROR IN THE NOTATION BEING DISCOVERED.

IF THE SHIPMENT DID, IN FACT, MOVE TO KITTERY ON A DATE NOT DISCLOSED BY THIS RECORD AND THEN BACK TO BOSTON FOR PARTIAL UNLOADING ON MARCH 23, 1961, IT IS OUR BELIEF THAT THE CAUSE WAS SOMETHING OTHER THAN THE ERRONEOUS NOTATION ON THE BILL OF LADING. HAD THE CARRIER OBEYED THE INSTRUCTIONS AND ATTEMPTED TO DELIVER THE PROPERTY AT BOSTON, THE ERROR WOULD HAVE BEEN DISCOVERED AND THE CORRECT ITEMS WOULD HAVE BEEN UNLOADED. IN THE CIRCUMSTANCES, WE CAN ONLY CONCLUDE THAT THE SHIPMENT, IF IT WERE MOVED THROUGH TO KITTERY AND THEN BACK TO BOSTON, WAS HANDLED AT THE CARRIER'S CONVENIENCE UNDER PARAGRAPH (1),RULE 28, MIDDLE ATLANTIC CONFERENCE TARIFF NO. 15-J, MF-1.C.C. NO. A-949.

THE BURDEN OF PROOF IS UPON THE CARRIER TO SUSTAIN THE CORRECTNESS OF THE CHARGES CLAIMED AND THE GOVERNMENT'S LIABILITY FOR SUCH CHARGES. UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 355 U.S. 253 (1957). THE PRESENT RECORD DOES NOT, IN OUR OPINION, ESTABLISH THE LIABILITY OF THE GOVERNMENT FOR THE CHARGES CLAIMED AND THE CERTIFICATE OF SETTLEMENT IS SUSTAINED.