B-213784, MAY 22, 1984

B-213784, MAY 22, 1984

DIGEST: EVIDENCE OF CARRIER'S FAILURE TO DELIVER THE SAME GOODS AT DESTINATION AS RECEIVED AT ORIGIN AND AMOUNT OF DAMAGES ESTABLISH LIABILITY OF CARRIER FOR LOSS IN TRANSIT; BURDEN IS THEN ON CARRIER TO REBUT PRIMA FACIE CASE OF LIABILITY.

PAUL ARPIN VAN LINES, INC.:

PAUL ARPIN VAN LINES, INC. (ARPIN), REQUESTS RECONSIDERATION OF THE DISALLOWANCE BY OUR CLAIMS GROUP OF ARPIN'S CLAIM (NO. Z-1798360(27)) FOR REFUND OF $18 RECOVERED BY ADMINISTRATIVE SETOFF BY THE DEPARTMENT OF THE AIR FORCE FOR THE LOSS IN TRANSIT OF ONE PAIR OF GOLF SHOES.

BY GOVERNMENT BILL OF LADING NO. S-1698752, ARPIN CONTRACTED WITH THE AIR FORCE TO TRANSPORT HOUSEHOLD GOODS OF 2ND LIEUTENANT JOHN J. MCMAHON, JR., FROM ROME, NEW YORK, TO BILOXI, MISSISSIPPI. THE GOODS WERE PICKED UP ON MARCH 14, 1980, AND DELIVERED ON MARCH 29, 1980. THE HOUSEHOLD GOODS DESCRIPTIVE INVENTORY LISTS AS ITEM NO. 171 A CARTON CONTAINING SHOES AND A PORTABLE RADIO WITH THE NOTATION CP INDICATING THAT THE CARTON WAS PACKED BY THE CARRIER.

LIEUTENANT MCMAHON FILED A CLAIM AGAINST THE GOVERNMENT FOR NONRECEIPT OF HIS GOLF SHOES ALLEGEDLY LOCATED WITHIN BOX NO. 171. HIS CLAIM WAS ALLOWED. THE GOVERNMENT, SUBROGATED TO LIEUTENANT MCMAHON'S RIGHTS, MADE A CLAIM AGAINST ARPIN. AFTER PAYMENT WAS DENIED BY ARPIN BASED UPON THE ASSERTION THAT THE SHOES WERE NOT TENDERED THE AMOUNT REPRESENTING ARPIN'S LIABILITY FOR THE SHOES, $18, WAS SETOFF FROM MONIES OTHERWISE DUE IT.

ARPIN CONTENDS THAT THE GOVERNMENT HAS NOT ESTABLISHED A PRIMA FACIE CASE OF CARRIER LIABILITY. ARPIN STATES THAT CARTON NO. 171 WAS RECEIVED IN SEALED CONDITION AND DELIVERED TO ITS FINAL DESTINATION IN THE SAME SEALED CONDITION, RELIEVING IT FROM RESPONSIBILITY FOR ANY LOSS THAT MAY HAVE OCCURRED OR BE ASSOCIATED WITH CARTON NO. 171.

TO ESTABLISH A PRIMA FACIE CASE OF CARRIER LIABILITY, THE SHIPPER MUST SHOW: (1) THAT HE TENDERED THE PROPERTY TO THE CARRIER IN A CERTAIN CONDITION; (2) THAT THE PROPERTY WAS NOT DELIVERED BY THE CARRIER OR WAS DELIVERED IN A MORE DAMAGED CONDITION; AND (3) THE AMOUNT OF LOSS OR DAMAGE. SEE MISSOURI PACIFIC RAILROAD CO. V. ELMORE & STAHL, 377 U.S. 134 (1965). THE BURDEN OF PROOF THEN SHIFTS TO THE CARRIER TO SHOW THAT IT WAS NOT LIABLE FOR THE LOSS OR DAMAGE.

HERE A PRIMA FACIE CASE OF CARRIER LIABILITY IS CLEARLY ESTABLISHED. CONTRARY TO ARPIN'S ALLEGATION THAT IT WAS NEVER TENDERED THE SHOES IN QUESTION, THE HOUSEHOLD GOODS DESCRIPTIVE INVENTORY, SIGNED AND DATED BY AN AGENT OF ARPIN EVIDENCES THAT NOT ONLY DID ITEM 171 CONTAIN THE SHOES IN QUESTION BUT IT WAS ALSO PACKED BY THE CARRIER, ARPIN. SINCE A PRIMA FACIE CASE OF CARRIER LIABILITY HAS BEEN ESTABLISHED, THE BURDEN OF PRESENTING EVIDENCE IN REBUTTAL SHIFTS TO THE CARRIER AND REMAINS THERE. JONES MOTOR COMPANY, INC., B-202426, JULY 8, 1981.

ARPIN HAS NOT SHOWN THAT THE GOLF SHOES WERE NOT REMOVED FROM CARTON NO. 171 WHILE IT WAS IN ITS POSSESSION. WHILE ARPIN STATES THAT THE CARTON WAS DELIVERED "TO FINAL DESTINATION IN THE SAME SEALED CONDITION" AS WHEN IT RECEIVED THE GOODS, ARPIN HAS NOT MET ITS BURDEN OF OVERCOMING THE PRIMA FACIE SHOWING OF CARRIER LIABILITY, AS ESTABLISHED BY ARPIN'S ACKNOWLEDGMENT OF THE GOLF SHOES BEING IN CARTON 171 WHEN IT PACKED THE CARTON AND SIGNED THE DESCRIPTIVE INVENTORY.

THE SETTLEMENT CERTIFICATE, DATED MARCH 31, 1983, BY WHICH OUR CLAIMS GROUP DISALLOWED THIS CLAIM OF ARPIN HAS NOT BEEN SHOWN TO BE ERRONEOUS AND IS SUSTAINED.