B-197911.3, Feb 2, 1990, 90-1 CPD ***

B-197911.3, Feb 2, 1990, 90-1 CPD ***

PROCUREMENT - Payment/Discharge - Shipment - Carrier liability - Burden of proof DIGEST: 1. Shipper's 6-day delay in signing delivery documents does not preclude a claim against the carrier for damage to household goods. PROCUREMENT - Payment/Discharge - Shipment - Damages - Evidence sufficiency Post-deliver movement of shipper's household goods within his residence is not sufficient to demonstrate that damage to the goods occurred after delivery.

Interstate Van Lines, Inc.:

Interstate Van Lines, Inc., seeks review of our Claims Group's denial of its claim for a refund of $1,133.25, which the Department of the Air Force withheld from amounts otherwise due Interstate because of damage to household goods transported by the firm. /1/

Interstate contends that it is not liable for the damage because there is no evidence to show that the damage occurred during transit. We affirm our Claims Group's decision.

On September 13, 1984, Interstate's agent picked up household goods in Springfield, Virginia, belonging to L. Co. Robert L. Summers and delivered them to L. Co. Summers' quarters at Alamagoa, New Mexico, on September 21. L. Co. Summers declined to sign the delivery documents, however, until he had performed a line-by-line inventory check, a process that he did not complete until September 27. By September 27, when L. Co. Summers signed the delivery documents listing extensive damage, the household
goods had been moved within L. Co. Summers' residence.

As a common carrier, Interstate's liability is controlled by the Carmack
Amendment of 1906, section 20(11) of the Interstate Commerce Act, 49
U.S.C. Sec. 11707 (1982), which makes carriers liable for the actual loss
or damage caused by them to property they transport.
Continental Van
Lines, Inc., B-216757, August 14, 1985.
In an action to recover for
damages incurred in shipment, a shipper establishes a primary facile case
of carrier liability by showing delivery to the carrier in good condition,
arrival at the destination in damaged condition, and the amount of
damages.
The burden then shifts to the carrier to show both that it was
free from negligence and that the damage was due to an excepted cause,
such as an act of God.
Missouri Pacific Railroad v. Elmore and St, 377
U.S. 134 (1964).

The pre-move inventory shows that some of the items had preexisting
damage.
The sole issue here is whether there is evidence to show that the
goods were delivered with damage that did not exist prior to the move.
Interstate's position is that there is none because L. Co. Summers did not
take exception at the time of delivery to the condition of the goods, and
by the time he did so 6 days later, the goods had been moved.
Interstate
contends that it is likely the damage to the goods occurred after
delivery.

The Military-Industry Memorandum of Understanding (M) in effect at the
time of the move provided that upon delivery by the carrier all damage to
household goods was to be noted on the delivery documents.
Although L.
Co. Summers failed to execute the delivery documents listing the damages
until 6 days after delivery, this delay in listing the damages did not
preclude a primary facile case of damage during transit because the M
expressly provided for a 45-day period within which to notify the carrier
of in-transit damages.
In this regard, the M stated that for damage
discovered after delivery, written notice to the carrier within 45 days of
delivery "shall be accepted by the carrier as overcoming the presumption
of the correctness of the delivery receipt."
Thus, even if L. Co. Summers
had signed a receipt at the time of delivery indicating that there was no
damage, a primary facile case of carrier liability could still be
established by notice to the carrier of later-discover damage sent within
45 days of delivery.
See Paul Art Van Lines, Inc., B-193182, Dec. 12,
1978.
The result should be no different where, as here, there was no
indication by the shipper at the time of delivery as to the condition of
the goods, but notice was provided in a timely manner 6 days later.

Further, the fact that a shipper moves goods subsequent to delivery does
not preclude the shipper from claiming that the goods were delivered in
damaged condition.
The issue in such cases is one of fact as to when the
damage occurred, and when the shipper's claim is made within the time
prescribed by the M it is incumbent upon the carrier to show that the
damage occurred after delivery.
Id. Here, aside from noting that the
household goods had been moved within L. Co. Summers' residence,
Interstate has offered nothing that would indicate that subsequent
movement caused the damage the shipper claims existed at delivery.
On the
other hand, the Air Force has concluded that the nature and extent of the
loss or damage is such as to make it highly unlikely that it could have
resulted from the movement of the shipper's property within his
residence.
Based on our review of the shipper's report of the damage--
which claimed that 60 of the 450 items shipped were dent, scratched,
broken, or otherwise delivered with damage that did not exist prior to the
move-- we agree with the Air Force.

We conclude that a prime facile of carrier liability has been established
and that Interstate has not rebutted it. We therefore affirm our Claims
Group's denial of Interstate's claim.

/1/ The Air Force reports that although it withheld $1,674.01, the sets for damage should have been only $1,133.25. The agency will correct the overcharge of $540.76.