B-213342, NOV 18, 1983

B-213342, NOV 18, 1983

DIGEST: 1. INTERSTATE COMMON CARRIER BY RAIL IS LIABLE FOR DAMAGE IN TRANSIT TO GENERATORS WHEN THE DAMAGE HAS NOT BEEN SHOWN TO HAVE RESULTED FROM DEFECTIVE BRACING BY SHIPPER, OR THAT FAULT OF CARRIER DID NOT CONTRIBUTE OR THAT ANY DEFECT IN BLOCKING WAS NOT APPARENT ON ORDINARY OBSERVATION. 2. CLAIMANT BEARS BURDEN TO FURNISH EVIDENCE CLEARLY AND SATISFACTORILY ESTABLISHING ITS CLAIM AND ALL INCIDENTAL MATTERS TO ESTABLISH CLEAR LEGAL LIABILITY OF UNITED STATES AND CLAIMANT'S RIGHT TO PAYMENT.

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY:

THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY (C., R.I. & P.R.) REQUESTS REVIEW PURSUANT TO 4 C.F.R. SEC. 32 (1983) OF THE DENIAL BY OUR ACCOUNTING AND FINANCIAL MANAGEMENT DIVISION, CLAIMS GROUP, OF A CLAIM FOR REFUND OF AMOUNTS COLLECTED BY SETOFF FOR DAMAGE IN TRANSIT TO GENERATOR SETS SHIPPED UNDER GOVERNMENT BILL OF LADING (GBL) M-1357207, DATED SEPTEMBER 26, 1978.

WE SUSTAIN THE DENIAL OF THE CLAIM.

ON DELIVERY AT DESTINATION EIGHT GENERATOR SETS WERE NOTED DAMAGED AS A RESULT OF COMING LOOSE FROM THE CHOCKS. C., R.I. & P.R. DOES NOT DENY THAT THE DAMAGE OCCURRED IN TRANSIT, BUT ALLEGES THAT THE DAMAGE WAS THE RESULT OF INADEQUATE BRACING BY THE GOVERNMENT INSTALLATION WHICH LOADED THE SHIPMENT. C., R.I. & P.R. ALSO ALLEGES THAT THE DEFECT IN LOADING WAS NOT APPARENT BECAUSE THE SHIPMENT WAS TENDERED IN CLOSED VANS.

A COMMON CARRIER IS AN INSURER OF THE SAFE DELIVERY OF FREIGHT AND IS LIABLE FOR ANY LOSS OR DAMAGE WHICH OCCURS IN TRANSIT UNLESS THE LOSS OR DAMAGE RESULTS SOLELY FROM ONE OF THE EXCEPTED CAUSES FOR WHICH A CARRIER IS NOT LIABLE. THE CARRIER BEARS THE BURDEN OF SHOWING NOT ONLY THAT THE DAMAGE RESULTED FROM AN EXCEPTED CAUSE, BUT ALSO THAT THE CARRIER WAS FREE OF ANY FAULT. 13 C.J.S., CARRIERS SEC. 71, 14 AM.JUR. 2D, CARRIERS SEC. 508, ET SEQ. ONE OF THE EXCEPTIONS TO THE LIABILITY OF THE CARRIER IS DAMAGE RESULTING SOLELY FROM DEFECTIVE LOADING, BLOCKING OR BRACING BY THE SHIPPER. HOWEVER, THE PRIMARY DUTY FOR SAFE LOADING IS ON THE CARRIER AND, IF IMPROPER LOADING IS APPARENT BY ORDINARY OBSERVATION, THE CARRIER REMAINS LIABLE NOTWITHSTANDING THE NEGLIGENCE OF THE SHIPPER. SEE UNITED STATES V. SAVAGE TRUCK LINE, 209 F.2D 442, 445 (1953), CERT. DENIED 347 U.S. 952.

IN ADDITION, A CLAIMANT BEARS THE BURDEN OF FURNISHING EVIDENCE CLEARLY AND SATISFACTORILY ESTABLISHING ITS CLAIM AND ALL INCIDENTAL MATTERS TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. SEE 31 COMP.GEN. 340 (1952); 18 COMP.GEN. 980 (1939).

THE ONLY EVIDENCE IN THE RECORD THAT THE DAMAGE TO THE GENERATORS MAY HAVE RESULTED FROM DEFECTIVE BRACING BY THE ORIGIN GOVERNMENT INSTALLATION IS THE UNSUBSTANTIATED OPINION OF AN INSPECTOR OF THE WESTERN WEIGHING AND INSPECTION BUREAU ON THE BUREAU INSPECTION REPORT. HOWEVER, THERE IS NO EVIDENCE IN THE RECORD THAT C., R.I. & P.R. WAS FREE OF FAULT. FINALLY, ALTHOUGH THE SHIPMENT WAS TENDERED IN CLOSED VANS, THE GBL DOES NOT INDICATE THAT SEALS WERE APPLIED AND THE DEPARTMENT OF THE AIR FORCE, WHICH MADE THE SHIPMENT, REPORTS THAT NO SEALS WERE APPLIED. THEREFORE, C., R.I. & P.R. WAS NOT PREVENTED FROM INSPECTING THE LOADING TO DETERMINE THAT IT WAS ADEQUATE, AND THERE HAS BEEN NO SHOWING THAT THE DEFECT IN BRACING, IF SUCH DID EXIST, WAS NOT APPARENT ON ORDINARY OBSERVATION.

C., R.I. & P.R. HAS NOT SHOWN THAT THE DAMAGE WAS THE RESULT OF AN EXCEPTED CAUSE, OR THAT THE FAULT OF THE CARRIER DID NOT CONTRIBUTE OR THAT ANY DEFECT IN LOADING BY THE SHIPPER WAS NOT APPARENT.

ACCORDINGLY, WE SUSTAIN THE DISALLOWANCE OF THE CLAIM BY OUR CLAIMS GROUP.