B-152700, JAN. 2, 1964

B-152700, JAN. 2, 1964

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

BY YOUR LETTER OF OCTOBER 10, 1963, YOUR FILE NO. 238254-21, YOU REQUEST REVIEW OF YOUR CLAIM FOR $11,050.24 DISALLOWED BY OUR SETTLEMENT CERTIFICATE OF JANUARY 9, 1963, TK-746434. THE AMOUNT CLAIMED WAS ADMINISTRATIVELY DEDUCTED BY THE DEPARTMENT OF THE AIR FORCE FROM AMOUNTS OTHERWISE DUE THE CARRIER FOR THE VALUE, IN THE AMOUNT OF $10,857.60, OF THREE ITEMS LOST WHILE BEING TRANSPORTED FROM NORFOLK, VIRGINIA, TO PAULINE, KANSAS, UNDER GOVERNMENT BILL OF LADING NO. WY-7842979 DATED FEBRUARY 26, 1958, PLUS UNEARNED FREIGHT CHARGES IN THE AMOUNT OF $192.64.

THE RECORD SHOWS THAT THE SHIPMENT IN QUESTION WAS DISCHARGED FROM THE SS. MANKATO VICTORY AT THE HAMPTON ROADS ARMY TERMINAL, NORFOLK, VIRGINIA, ON FEBRUARY 14, 1958. THE BILL OF LADING SHOWS THAT THIS SHIPMENT, CONSISTING OF SEVEN CRATES DESCRIBED AS "FREIGHT TRAILERS NOIBN COMPLETELY KD," WEIGHING 10,310 POUNDS PLUS 500 POUNDS DUNNAGE, WAS TENDERED TO AND ACCEPTED BY THE PENNSYLVANIA RAILROAD COMPANY ON FEBRUARY 26, 1958. THE SHIPMENT ARRIVED AT DESTINATION ON MARCH 7, 1958, IN GONDOLA CAR NUMBER VGN-30486; CONSIGNEE'S CERTIFICATE OF DELIVERY WAS ACCOMPLISHED TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY FOR 6,100 POUNDS AND A SHORTAGE OF ,THREE EACH FREIGHT TRAILERS" WEIGHING 4,710 POUNDS, WAS ANNOTATED ON THE REVERSE OF THE BILL OF LADING. IN YOUR DAMAGE REPORT OF APRIL 3, 1958, YOU ACKNOWLEDGED THE SHORTAGE OF THE THREE TRAILERS, WEIGHING 4,710 POUNDS. THEREAFTER YOU WERE FURNISHED A COPY OF AN OVER AND/OR SHORT FREIGHT DATA REPORT ISSUED BY THE CONSIGNEE DATED APRIL 10, 1958. WHEN YOU REQUESTED VERIFICATION THAT SEVEN ITEMS HAD IN FACT BEEN SHIPPED, SINCE SEVEN FREIGHT TRAILERS AS BILLED COULD NOT HAVE BEEN LOADED ON THE RAILWAY EQUIPMENT, AN EXTENSIVE INVESTIGATION WAS CONDUCTED AS A RESULT OF WHICH IT WAS DETERMINED THAT SEVEN CRATES WERE ACTUALLY SHIPPED AND THAT THERE WAS AN ACTUAL SHORTAGE OF THREE CRATES. HOWEVER, THE BILLING WAS FOUND TO BE IN ERROR IN THAT ONLY FOUR OF THE ITEMS SHOULD HAVE BEEN IDENTIFIED AS TRAILERS. SUBSEQUENTLY, ON THE BASIS OF INFORMATION CONTAINED IN SHIPPING DOCUMENTS RECEIVED FROM THE OVERSEAS ORIGIN SHIPPER YOU WERE ADVISED BY LETTER OF NOVEMBER 25, 1958, FROM THE ADMINISTRATIVE OFFICE THAT THE ISSUING OFFICER HAD AUTHORIZED CORRECTION OF THE AUDIT DESCRIPTION ON THE BILL OF LADING AS FOLLOWS:

"AS BILLED:

7 CRT FREIGHT TRAILERS NOIBN COMPLETELY KD 10,310 LBS.

AS CORRECTED:

4 CRT FREIGHT TRAILERS NOIBN COMPLETELY KD

(S/N 4920-099-8101, UFC NO. 4 92900) 5,600 LBS.

2 CRT OUTFITS PUMPING CONSISTING OF POWER PUMP

AND ENGINE MOUNTED ON HAND OR TRAILER TRUCK

(S/N 4920-433-5475, UFC NO. 4 73920) 2,610 LBS.

1 CRT TANKS STEEL NOIBN PLATE OR SHEET THINNER

THAN 16 GAUGE SU NOT NESTED (8/N 5619-153-

48404, UFC NO. 4 89100) 2,100 LBS.'

THIS LAST ITEM WAS FURTHER CORRECTED TO READ

"FUEL CELLS, RUBBER, NOIBN.'

IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE SHORTAGE IS NOT YOUR RESPONSIBILITY, REFERRING IN SUPPORT OF YOUR CONTENTION TO LETTERS OF MARCH 29 AND APRIL 10, 1963, FROM DUDLEY H. BROYLES, MAJOR, TRANSPORTATION CORPS, TRANSPORTATION OFFICER, HEADQUARTERS, HAMPTON ROADS ARMY TERMINAL, NORFOLK, VIRGINIA, OSTENSIBLY VERIFYING THAT LOSS WAS NOT CARRIER'S RESPONSIBILITY. YOU ALSO REFER TO YOUR LETTERS OF MAY 21 AND AUGUST 1, 1962, FOR A FURTHER STATEMENT OF REASONS WHY THE LOSS IS NOT A CARRIER RESPONSIBILITY.

IN THE LETTER OF APRIL 10, 1963, REFERRING TO THE CORRECTION OF COMMODITY DESCRIPTION ON THE GOVERNMENT BILL OF LADING, MAJOR BROYLES STATED:

"WHILE THE CONSIGNEE DOES NOT STATE SPECIFICALLY THAT THE CORRECTION IS TO COVER THE ITEMS ACTUALLY RECEIVED, I CAN THINK OF NO OTHER REASON FOR REQUESTING THE CORRECTION. UNLESS THE CONSIGNEE ACTUALLY RECEIVED THE TWO PUMPING OUTFITS AND ONE CRATE TANK, I DO NOT KNOW HOW HE COULD HAVE CHOSEN THOSE PARTICULAR DESCRIPTIONS.'

ALSO, IN YOUR LETTERS OF MAY 21 AND AUGUST 1, 1962, YOU REFER TO A STATEMENT IN THE LETTER OF APRIL 20, 1962, FROM MAJOR BROYLES STATING:

"THE FACT THAT TOPEKA AIR FORCE DEPOT DISCOVERED THE ERROR IN CLASSIFICATION IS EVIDENCE THAT THEY RECEIVED THE MATERIAL.'

THESE STATEMENTS BY MAJOR BROYLES REPRESENT MERELY SPECULATION AS TO THE MEANS BY WHICH THE ACTUAL IDENTITY OF THE ARTICLES SHIPPED WERE DISCOVERED. THE STATEMENTS WERE CLEARLY NOT BASED ON ACTUAL KNOWLEDGE OF THE FACTS. THE RECORDS SHOW ON THE OTHER HAND THAT SHIPPING DOCUMENTS SECURED FROM THE OVERSEAS SHIPPER ON INVESTIGATION FOLLOWING YOUR INITIAL PROTEST REVEALED THAT THE BILLING TAKEN FROM THE SHIP'S MANIFEST WAS IN ERROR AND THAT ONLY FOUR OF THE SEVEN ITEMS ACTUALLY SHIPPED SHOULD HAVE BEEN BILLED AS FREIGHT TRAILERS. THE REMAINING ITEMS WERE IDENTIFIED AS 2 CRATES OF PUMPING OUTFITS CONSISTING OF POWER PUMP AND ENGINE MOUNTED ON HAND OR TRAILER TRUCK, WEIGHING 2,610 POUNDS AND 1 CRATE OF RUBBER FUEL CELLS, NOIBN, AS INDICATED ABOVE.

ALTHOUGH THE SHIPPER OR CONSIGNEE BEARS THE INITIAL BURDEN OF PROVING DELIVERY OF THE GOODS TO THE CARRIER, AN UNDERTAKING BY THE CARRIER TO TRANSPORT THE GOODS, AND A FAILURE BY THE CARRIER TO DELIVER THE SAME QUANTITY OR QUALITY OF GOODS AT DESTINATION, SEE JULIUS KLUGMAN'S SONS, INC. V. OCEANIC STEAM NAVIGATION COMPANY, LTD., 42 F. 2D 461; GULF.C. AND S. FE RY. V. GALBRAITH, 39 S.W. 2D 91, AND SKYLAND HOSIERY CO. V. AMERICAN RAILWAY EXPRESS, 114 S.E. 823, AND GOVERNMENT BILL OF LADING, CONSTITUTING THE CONTRACT OF CARRIAGE AND RECEIPT FOR THE GOODS, SIGNED BY THE CARRIER AND BEARING THE CONSIGNEE'S CERTIFICATE OF DELIVERY WITH THE DISCREPANCIES NOTED, ALTHOUGH NOT CONCLUSIVE, CONSTITUTES WEIGHTY AND PRIMA FACIE EVIDENCE OF THESE ELEMENTS. STROHMEYER AND ARPE COMPANY V. AMERICAN LINE S.S. CORP., 97 F. 2D 360; GULF, C. AND S. FE RY. V. GALBRAITH, CITED ABOVE; AND METALS REFINING CO. V. ST. LOUIS-SAN FRANCISCO CO., 137 S.W. 2D 977. THE CARRIER THEN BEARS THE BURDEN OF SHOWING BY A PREPONDERANCE OF THE EVIDENCE EITHER THAT THE BILL OF LADING DOES NOT TRULY SHOW THE FACTS, OR THAT THE LOSS WAS PROXIMATELY AND EXCLUSIVELY CAUSED BY AN ACT OF GOD, ACT OF THE PUBLIC ENEMY, ACT OF PUBLIC AUTHORITY, ACT OF THE SHIPPER, OR THE NATURE OR INHERENT DEFECT IN THE GOODS. OTHERWISE THE CARRIER IS HELD LIABLE AS AN INSURER FOR FAILURE TO DELIVER THE SAME QUANTITY OR QUALITY OF GOODS AT DESTINATION. SEE SECRETARY OF AGRICULTURE V. UNITED STATES, 350 U.S. 162, 165, NOTE 9; GALVESTON, H. AND S.A. RY. V. WALLACE, 223 U.S. 481, 492; REIDER V. THOMPSON, 197 F. 2D 158; SILVER LINING V. SHEIN, 117 A. 2D 182; AMERICAN RAILWAY EXPRESS V. FEGENBUSH, 144 SO. 320; ANDERSON, CLAYTON AND CO. V. YAZOO AND M.V. R., 141 SO. 453; CHESAPEAKE AND O. RY. V. TIMBERLAKE CURRIE AND CO., 137 S.E. 507; GULF, C. AND S. FE RY. * * * ROBERTS, 85 S.W. 479; GULF, C. AND S. FE RY. V. GALBRAITH, CITED ABOVE, AND IN THE MATTER OF BILLS OF LADING, 52 I.C.C. 671, 679.

IN THE PRESENT CASE THE BILL OF LADING SHOWS THAT SEVEN ITEMS WEIGHING 10,810 POUNDS WITH DUNNAGE WERE RECEIVED BY CARRIER AT ORIGIN, BUT ONLY FOUR ITEMS WEIGHING 6,100 POUNDS WERE RECEIVED AT DESTINATION. THE DIFFERENCE IN WEIGHT (4,710 POUNDS) COINCIDES WITH THE WEIGHT OF THE TWO CRATES OF PUMPING OUTFITS, AND THE ONE CRATE OF RUBBER FUEL CELLS, APPARENTLY LOST IN TRANSIT (2,610 POUNDS PLUS 2,100 POUNDS EQUALS 4,710 POUNDS). THE ONLY EVIDENCE PRESENTED IN OPPOSITION WAS THE STATEMENTS BY MAJOR BROYLES. HOWEVER THESE STATEMENTS COMPRISING MERELY SPECULATION AS INDICATED ABOVE DO NOT CONSTITUTE EVIDENCE SUFFICIENT TO OVERCOME THE EVIDENCE OF THE BILL OF LADING AND OTHER SUPPORTING EVIDENCE IN THE RECORD.

OTHER MATTERS REFERRED TO IN YOUR LETTER OF AUGUST 1, 1962, HAVE EITHER BEEN FULLY EXPLAINED IN PREVIOUS CORRESPONDENCE SUCH AS THE MANNER OF LOADING, OR DO NOT APPEAR MATERIAL, WITH THE EXCEPTION OF PARAGRAPH NO. 8 IN WHICH YOU STATE:

"THIS SHIPMENT WAS RETURNED AS EXCESS TO OVERSEAS REQUIREMENTS AND THE CORRECT DUE DATE DESTINATION VALUE HAS NOT BEEN ESTABLISHED.'

THE ADMINISTRATIVE OFFICE HOWEVER HAS REPORTED THAT THE VALUE OF THE ITEMS AGGREGATE $10,857.60 AND IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY IT IS A NECESSARY RULE OF THIS OFFICE TO ACCEPT AS CORRECT THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE. SEE 40 COMP. GEN. 178, 180.