Matter of: American Van Services, Inc. File: B-247767 Date: September 4, 1992

Matter of: American Van Services, Inc. File: B-247767 Date: September 4, 1992

PROCUREMENT Payment/Discharge Shipment Damages Evidence sufficiency A prima facie case of liability against a carrier for damage to a service member's household goods is not established where the supporting damage estimate is unreliable because it reflects the costs of repairing items nearly 2 years after discovery of the damage and involves repairs that, in part, appear to be inconsistent with the damages noted on the Joint Statement of Loss or Damage at Delivery (DD Form 1840).

DECISION

American Van Services, Inc., requests review of our Claims Group's settlement denying its claim for a reduction by one-half in the carrier's obligation to the Air Force of $365, the estimated cost of repairing damage incurred in the shipment of a service member's household goods.[1] We reverse the Claims Group.

The shipment included two oak chairs and a cherrywood table, all with some pre-existing damage. In August 1988, at delivery, the member and the carrier's representative noted on the Joint Statement of Loss or Damage at Delivery (DD Form 1840) that the rear leg of one chair (item 35B) was cracked and that a rear leg was broken and three spindles were cracked on a second chair (item 37B). Pre-existing damage on both chairs included scratched legs. Also, the legs of the table (item 57B) were completely separated from the table top; pre-existing damage included a loose top.

The member did not file his claim until July 27, 1990. In preparing the claim, on July 11, 1990, the member obtained a combined estimate of $365 for repairing the three items. The Air Force reviewed this estimate and agreed that the repair cost for item 35B was $100 based on repairing the back post, which was broken at the rung. The Air Force also agreed that the repair cost for item 37B was $190 based on replacing a back post and two spindles. Finally, the Air Force agreed that the cost of re-attaching the legs on item 57B was $75. The Air Force noted on the Schedule of Property and Claim Analysis Chart (DD Form 1844) that all three items were purchased as a gift in July 1978 and that each chair was valued at $250 at that time. The value at acquisition of the table is not indicated.

The Air Force disbursed $365 to the member for repairing the three items, and then sought to recover this amount from the carrier. The carrier did not dispute its liability, but paid the Air Force only half the amount ($182.50), asserting that some of the listed repairs covered pre-existing damage to the items in question. American also complained that the repair estimates were obtained nearly 2 years after delivery, and noted that it is not responsible for repair costs when repairs exceed the value of the item or when there is no evidence of the actual age of the item; the carrier pointed out that the Air Force had not substantiated the original or replacement costs for the three items.

To recover from a carrier for damages to his property, the shipper must make a prima facie case by showing delivery in a certain condition, arrival in a more damaged condition, and the amount of damages. Thereafter, the burden is on the carrier to show that it was free from negligence and that damage was due to an excepted cause relieving the carrier of liability. Missouri Pacific Railroad Co. v. Elmore & Stahl, 377 U.S. 134, 138 (1964); Stevens Transportation Co., Inc., B-243750, Aug. 28, 1991. The dispute here involves the shipper's initial burden of proof on the amount of damages. We do not find the evidence of repair costs provided by the member reliable as evidence of the damage caused by the carrier.

Generally, where a common carrier is liable for damage to property in transit, damages are measured by the difference between the fair market value of undamaged goods and their fair market value as delivered in a damaged condition at the time and place of delivery. Charter Mobile Homes, Inc., B-241771, June 5, 1991. The reasonable cost of repairs is an appropriate measure of such damage where the property is not a total loss and the cost of repair is not out of proportion to the value of the property before injury. Ryder Truck Lines, B-213839, Aug. 29, 1984; Suddath Van Lines, Inc., B-189696, Jan. 6, 1978. In determining the cost of repairs, an estimate computed by qualified personnel with experience with these types of repairs based on cost records of repairs of this type of property is acceptable. Ryder Truck Lines, B-213839, supra.

Although the carrier evidently did cause additional damage to the items, nothing in the estimate the member obtained indicates that it was based on material and labor costs around the time of discovery of the damage. The estimate suggests that the costs of repair were those that applied on July 11, 1990, almost 2 years after discovery of the damages. The administrative report does not explain how such costs may apply to damages incurred in 1988. Further, the repair estimate for the chair in item 35B was based on repairing a "back post," which appears to be damage other than that reported on the DD Form 1840, a cracked rear leg. Finally, the record does not reflect data required by regulation to measure damages, particularly the table's value at time of acquisition, brand and model. See Air Force Regulation 112-1, Claims and Tort Litigation, para. 6-19. In sum, we question the reliability of the estimate as evidence of damage caused by the carrier, and coupled with the lack of required data on some damages, we cannot conclude that the shipper met his burden with respect to the value of the damages for a prima facie case. See Chandler Trailer Convoy, Inc., B-193432, Sept. 16, 1985, 84-2 CPD Para. 185; rev'd on other grounds, 64 Comp.Gen. 117 (1984), 84-2 CPD Para. 594.

As stated above, the record does show that the carrier has some liability for damage to the three items. Under the circumstances, and absent a better measure of that liability, we would have no objection to the Air Force's acceptance of the amount already paid by American ($182.50).

The Claims Group's settlement is reversed.

Date: To: Director, Claims Group/GGD - Sharon Green From: General Counsel - James F. Hinchman

Subject: American Van Service, Inc. (Z-2862118-11) (B-247767)

Returned is Claims File Z-2862118-11 and a copy of our decision reversing your settlement.

1. American moved the member's household goods from Niceville, Florida (Eglin Air Force Base) to Plymouth, New Hampshire (Pease Air Force Base) in June 1988 under Government Bill of Lading PP-650,347.