B-228999, Jan 29, 1988

B-228999, Jan 29, 1988

PROCUREMENT - Payment/Discharge - Shipment - Carrier Liability - Burden of Proof The government's prima facie case of liability against a carrier for DIGEST: the loss of one article in a shipment of freight is not overcome when that carrier shows that it delivered a free astray overage of a different article that is not shown to be connected to any of its other shipments.

Roadway Express, Inc.:

Roadway Express, Inc., has appealed our Claims Group's denial of its claim for a refund of $496.66 which the Army withheld from Roadway for the loss of a carton of copper wire that the Army contracted to have shipped from the Defense Depot in Tracy, California, to the Navy Submarine Base, New London, Groton, Connecticut. Roadway concedes that the Army has established a prima facie case of its liability for the carton of copper wire that it did not deliver at the submarine base; however, it alleges that because it delivered an article other than the copper wire and because ambiguous shipping documents were involved in this case, a shipping error must have occurred, which would overcome the government's prima facie case so that the amount withheld should be returned.-- We agree with our Claims Group that Roadway has not avoided liability for the loss by its explanation of the circumstances involved.

In September 1984, Roadway picked up a shipment from the Defense Depot, Tracy, California, which the bill of lading described as two cartons-- a carton of lanterns and a carton of copper wire. Roadway delivered the shipment in October to its destination at Groton, but only the carton of lanterns was delivered; the carton of copper wire was missing. Roadway claims that a sheet of iron and steel was picked up at Tracy instead of the carton of copper wire. In support of the claim it furnishes a copy of its internal document which indicates that a sheet of iron and steel was received at its destination terminal in Connecticut with the shipment described as lanterns and copper wire. Since Roadway had no bills of lading or other shipping documents to indicate to the submarine base in Groton that it should receive the sheet of iron and steel, Roadway states that it waited from October 1984 until January 1985 when it found the shipment which it believed accounted for the sheet of iron and steel overage. It then delivered the sheet of iron and steel at Groton for credit as a free astray shipment, furnishing a copy of its internal document in support, which also identified the shipment Roadway believed accounted for its free astray credit. That shipment was a sheet of iron and steel tendered to another carrier in a different state than California in December 1984 rather than tendered in September 1984 for delivery to the submarine base at Groton.

By these internal documents we believe that Roadway has established that there was an order for a sheet of iron and steel to be delivered at Groton and that Roadway in fact had a sheet of iron and steel that it did deliver to Groton. However, it has not demonstrated that the carton of copper wire shown on the bill of lading of the shipment it picked up in September was not picked up and should really have been shown on the bill of lading as a sheet of iron and steel. The depot at Tracy was requested to reconfirm that the shipment described as a carton of lanterns and a carton of copper wire was in fact shipped as billed; the depot again confirmed that it was. The receiving submarine base in Connecticut was requested to recheck if a carton of copper wire had been received at any later time; it again confirmed that it had not.

Roadway's internal documents do not even establish that the sheet of iron and steel was picked up at Tracy with the carton of lanterns-- only that it was received at Roadway's destination terminal in Connecticut at the same time as the carton of lanterns associated under the same carrier's control number. Nor has Roadway established a requirement for the sheet to have been shipped from Tracy on the same day in September as the shipment of lanterns and copper wire that would indicate a mix-up by the government in the tender of shipments to Roadway. We do not understand the significance of establishing that another motor carrier picked up a shipment of iron and steel from a different place than Tracy but delivered it to the submarine base several months after the shipment in question had been delivered. Although we have in particular circumstances allowed free astray shipments of specific commodities to be reconciled with prior shipments by the same carrier for which there were shortages of those same commodities, the circumstances here do not allow a conclusion that the free astray iron and steel delivered by Roadway approximately 3 months after a shortage of a carton of copper wire could satisfy that shortage. See Pacific Intermountain Express Co., B-190147, Nov. 15, 1977. Whatever ambiguity the shipping documents in this case present, that ambiguity does not explain as a shipping error the shortage the Army has established.

Accordingly, since Roadway has not rebutted the Army's prima facie case of liability against it for not delivering the carton of copper wire, we sustain our Claims Group's denial of Roadway's claim.