Matter of:American Vanpac Carriers File: B-247876 Date:August 24, 1992

Matter of:American Vanpac Carriers File: B-247876 Date:August 24, 1992

PROCUREMENT Payment/Discharge Shipment Carrier liability Burden of proof A prima facie case of carrier liability for the loss of tools shipped in a member's "tool box" is established, even though the inventory does not indicate that the box contained tools, when the description "tool box" is used. Apart from the member's allegation that the tool box contained tools when shipped, the Joint Military-Industry Tables of Weights indicates that for purposes of adjusting claims an item described as a "tool box" will be considered to contain contents unless there is a specific indication that it is empty.

DECISION

American Vanpac Carriers (Vanpac) requests review of the disallowance by our Claims Group of the carrier's claim for a refund of $179.10, recovered by the Department of the Air Force from revenues otherwise due to Vanpac, for the in-transit loss of tools belonging to a service member. We affirm the Claims Group's settlement.

The record shows that this shipment of household goods originated in Goldsboro, North Carolina on March 13, 1990, and was delivered to the member's new residence in Destin, Florida on April 3, 1990. On April 20, 1990, the member dispatched a Notice of Loss/Damage (DD Form 1840R) to Vanpac informing it, among other things, of "contents missing" from a tool box. The descriptive inventory indicates that the tool box was shipped under item 124, and that "tools" were shipped in a carrier-packed 4.5 cubic foot carton under item 123.

Vanpac contends that there is no evidence that the tool box had tools in it. The carrier states that if the tool box had contained tools, then the warehouseman would have noted on the inventory whether the tool box was locked or unlocked in accordance with Department of Defense (DOD) 4500.34- R, Personal Property Traffic Management Regulation, May 1986. Vanpac argues that the absence of such a notation here indicated that the box was empty. The carrier also points out that, if it is the Air Force's position that the tools for the tool box were under item 123, the member never alleged that he did not receive item 123 or any of its contents, and in any event, Vanpac was not timely notified about a discrepancy under item 123. Finally, Vanpac contends that a Government Bill of Lading (GBL) carrier like Vanpac cannot be held accountable for the actions of a warehouseman who prepares an inventory under a separate contract with the government.

To clarify the matter, we specifically asked the Air Force whether items 123 and 124 each contained tools and whether the tools in item 123 were delivered. The Air Force confirmed that the tools in item 123 were delivered but that those contained in 124 were missing.

To recover from a carrier for loss of property, a shipper must make a prima facie case by showing tender of the goods to the carrier, the carrier's failure to deliver them, and the amount of damages. Thereafter, the burden is on the carrier to show that it was free from negligence and that loss 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 proving tender of the lost tools to the carrier.

While the inventory does not indicate that the tool box contained tools when it was tendered to Vanpac, we find it reasonable to draw such a conclusion, irrespective of the member's allegations to that effect. The Joint Military-Industry Tables of Weights indicates that for purposes of adjusting claims a tool box will be considered to contain contents and weigh 70 pounds unless there is a specific indication that it is empty. Therefore, when completing the inventory, there was no need for the carrier's representative to specify that a tool box contained tools if it did so. We are not aware of any requirement in DOD 4500.34-R, cited by Vanpac, requiring that the inventory specify whether a tool box is locked or unlocked if it contains tools.

The carrier also argues that the descriptive inventory was prepared by a storage warehouseman operating under a completely separate contract with the government, not the GBL, and that Vanpac cannot be held accountable for the warehouseman's actions. The record does not support this statement because the inventory references the GBL number and the GBL indicates that the shipment was tendered to Vanpac, not a warehouseman. Even if the record were otherwise, when goods pass through the custody of several bailees it is a presumption of the common law that the loss or damage occurred in the hands of the last bailee. McNamara-Lunz Vans and Warehouses, Inc., 57 Comp.Gen. 415, 418 (1978).

The Claims Group's settlement is affirmed.

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

Subject:American Vanpac Carriers (Z-2862806-30) (B-247876)

Returned is your Claims File Z-2862806-30 and a copy of our decision affirming your settlement.

Date:August 19, 1992 To:Memorandum For File From:Attorney-Adviser - Michael D. Hipple

Subject:American International Moving, Corp. (Z-2862806-30) (B-247876)

On August 12, 1992, I spoke with Greg Raney of Air Force Claims concerning this claim. I asked him if it was the Air Force's position that the tools in item 123 were the contents of the tool box at item 124, or whether the Air Force concluded that the contents of 124 were mutually exclusive of the contents of 123. I also asked whether item 123 and all contents had been delivered.

Mr. Raney told me that 123 was independent of 124 and that so far as he knew, the tools in 123 were delivered. The tools in the box at 124 were not delivered. Mr. Raney also directed my attention to the Joint Military- Industry Tables of Weights to support the tender of the tools. The agreement states that for claims adjusting purposes, an item described as a tool box will be considered to contain contents and weigh 70 pounds unless there is a specific indication that it is empty. I confirmed this conversation with Tim McGrath on August 17, 1992.

When I saw nothing in DoD 4500.34-R specifically requiring an annotation that tool boxes are either locked or unlocked, I called Janet Neimeyer (MT -PP) (703) 756-1190 of MTMC on August 12, 1992, to confirm my impressions. I spoke again to Ms. Neimeyer on August 17, 1992, and she stated that staff in the Personal Property Directorate, the MTMC staff responsible for DoD 4500.34-R, were unable to identify any such requirement. DoD 4500.34- R, Appendix A, para. 54 (b) and (e) were the closest relevant provisions; para. 54(e) states: "List and describe item(s) of property to the extent necessary to properly identify it (them)."

I met with Karen Carrington of our Claims Group on August 18, 1992, and I directed her attention to the 2d and 3rd sentences of the 1st paragraph of page 2 of the settlement certificate. She said that while she could have been more specific, the phrase "the file shows that the origin inventory was properly noted as being deficient" means that the 1840/1840R so noted, not the descriptive inventory.

Finally, on August 19, 1992, I spoke with Jerry Gantan, Supervisor of Personal Property at Seymour Johnson AFB (919-736-5182) and he confirmed that May Moving of Goldsboro was American Vanpac's domestic agent in March 1990.