B-133622, OCT. 2, 1957

B-133622, OCT. 2, 1957

TO THE INSURANCE COMPANY OF NORTH AMERICA COMPANIES:

WE HAVE YOUR LETTERS OF MAY 8 AND MAY 9, 1957, FILE 295TR-27464 A, CONCERNING THE LIABILITY OF LINDEN MOTOR FREIGHT COMPANY, INC., YOUR ASSURED, FOR THE LOSS IN TRANSIT OF 16 ELECTROLYTIC NICKEL CATHODES VALUED AT $1,587.23, PLUS UNEARNED FREIGHT CHARGES OF $3.65 ON THE LOST ARTICLES.

THE LOSS WAS DISCOVERED IN CONNECTION WITH A SHIPMENT OF 4,199 ELECTROLYTIC NICKEL CATHODES MOVED IN ELEVEN TRAILERS DURING A SIX-DAY PERIOD (OCTOBER 13 THROUGH OCTOBER 18, 1955), FROM PIER 15, NEW YORK DOCKS, BROOKLYN, NEW YORK, TO THE GENERAL SERVICES ADMINISTRATION EMERGENCY PROCUREMENT SERVICE WAREHOUSE AT SOMERVILLE, NEW JERSEY, UNDER GOVERNMENT BILLS OF LADING GS-657630 AND GS-657631. AS EACH TRAILER ARRIVED AT THE SOMERVILLE WAREHOUSE, IT IS REPORTED BY THE CARRIER THAT THE CONSIGNEE INSTRUCTED THE DRIVERS TO SPOT THEM FOR LATER UNLOADING. DURING A FOUR-DAY PERIOD (OCTOBER 17 THROUGH OCTOBER 19, 1955), AND APPARENTLY IN THE ABSENCE OF THE CARRIER'S AGENTS, THE SEALS (BELONGING TO THE CARRIER) ON THE ELEVEN TRAILERS WERE BROKEN BY THE CONSIGNEE AND THE CONTENTS OF TRAILERS WERE UNLOADED. STROKE TALLY SHEETS PREPARED DURING THE UNLOADING BY AN EMPLOYEE OF THE WAREHOUSE SHOWED THAT OF THE 4,199 CATHODES SHIPPED, ONLY 4,183 WERE RECEIVED, THUS INDICATED A SHORTAGE OF 16 CATHODES. ON OCTOBER 26, 1955, OVER, SHORT, AND DAMAGE REPORT NO. 433, CONTAINING NOTIFICATION OF THE GOVERNMENT'S INTENT TO FILE A CLAIM FOR THE LOSS, WAS PREPARED BY THE CONSIGNEE AND WAS SENT TO THE CARRIER. DECEMBER 1955, THE BILLS OF LADING, SHOWING CONSIGNEE'S CERTIFICATES OF DELIVERY EXECUTED AS OF OCTOBER 27, 1955, AND CONTAINING REFERENCE TO OVER, SHORT, AND DAMAGE REPORT NO. 433, WERE SURRENDERED TO THE CARRIER. BY BILL NO. 63182, THE CARRIER CLAIMED AND WAS PAID FREIGHT CHARGES OF $957.25 BASED ON THE WEIGHT OF THE 4,199 CATHODES ACCEPTED FOR DELIVERY AT THE ORIGIN POINT OF THE SHIPMENT. IN SEPTEMBER 1956, THE GENERAL SERVICES ADMINISTRATION PRESENTED A FORMAL CLAIM TO THE CARRIER, YOU ASSURED, FOR $1,590.88, COVERING THE LOSS OF 16 CATHODES.

YOU CONTEND THAT SINCE THE TRAILER LOADS WERE TALLIED IN BY STEAMSHIP COMPANY TALLYMEN AND THE RESPECTIVE TRUCK DRIVERS UNDER GOVERNMENT SUPERVISION, AND BECAUSE THE TRAILERS ARRIVED AT DESTINATION WITH THEIR SEALS INTACT,"NO LESS HAS BEEN PERPETRATED WHILE (THE PROPERTY WAS) IN THE CUSTODY OF THE CARRIER AND THEREFORE, THE CARRIER WOULD NOT BE LIABLE.'

A COMMON CARRIER OF PROPERTY IN INTERSTATE COMMERCE IS AN INSURER OF THE PROPERTY ENTRUSTED TO ITS CARE EXCEPT FOR LOSS OR DAMAGE ATTRIBUTABLE TO AN ACT OF GOD, THE PUBLIC ENEMY, THE INHERENT NATURE OF THE PROPERTY, OR THE ACT OF DEFAULT OF THE SHIPPER. SILVER LINING V. SHEIN, 117 A.2D 182, 184 (1955); IN THE MATTER OF BILLS OF LADING, 52 I.C.C. 671, 679, (1919). THE CARRIER HERE INVOLVED, IN A LETTER DATED NOVEMBER 3, 1955, TO THE GENERAL SERVICES ADMINISTRATION, STATED HAT:

"A TOTAL OF 4199 PIECES WAS PICKED UP BY OUR 11 TRAILERS. THE ENTIRE SHIPMENT WAS LOADED BY PERSONNEL OF THE MOORE-MCCORMACK LINES, INC., CHECKED BY PIER CHECKERS, COUNTED AGAIN BY OUR DRIVERS AND A GENERAL SERVICE ADMINISTRATION INSPECTOR, AND THEN A NUMERICAL SEAL WAS AFFIXED TO THE TRAILERS BY THIS SAME INSPECTOR WHILE THEY WERE STILL INSIDE THE PIER PREMISES.'

THUS, THE CARRIER ADMITS THAT 4,199 CATHODES WERE DELIVERED TO IT AT THE ORIGIN POINT OF THE SHIPMENT. BUT THE CONSIGNEE'S TALLY OUT SHEETS SHOW THAT ONLY 4,183 CATHODES WERE RECEIVED AT DESTINATION. A COMMON CARRIER, HAVING THE FULL CUSTODY OF PROPERTY WHICH IT HAS ACCEPTED FOR TRANSPORTATION, BUT WHICH IS NOT DELIVERED AT ITS DESTINATION, HAS THE BURDEN OF ESTABLISHING ITS FREEDOM FROM LIABILITY. IN THE ABSENCE OF EVIDENCE AS TO HOW THE LOSS OCCURRED, A PRESUMPTION ARISES THAT IT RESULTED FROM THE CARRIER'S NEGLIGENCE. CALVESTON, H. AND S.A.RY. CO. V. WALLACE, 223 U.S. 481, 492 (1912); GULF, C. AND S.F.RY. CO. V. GALBRAITH, 39 S.W.2D 91, 93 (1931). THIS PRESUMPTION IS NOT REBUTTED BY THE FACT THAT THE SHIPMENT ARRIVED WITH SEALS INTACT AND WAS UNLOADED WITHOUT AGENTS OF THE CARRIER BEING PRESENT. SEE CENTRAL OF GEORGIA RAILWAY CO. V. UNITED STATES, 129 C.CLS. 278, 281 (1954).

ON THE BASIS OF THE PRESENT RECORD, AND SINCE NO EVIDENCE HAS BEEN PRESENTED WHICH WOULD WARRANT OUR RELIEVING YOUR ASSURED FROM ITS LIABILITY FOR THE LOSS OF 16 CATHODES, PROMPT REFUND SHOULD BE MADE OF THE AMOUNT OF THE GOVERNMENT'S CLAIM, $1,590.88, IN ORDER TO AVOID OTHER COLLECTION PROCEDURES. SEE MCKNIGHT V. UNITED STATES, 13 C.CLS. 292, 306 (1877), AFFIRMED 98 U.S. 179; UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234, 239 (1947).