B-182668, DEC 5, 1974

B-182668, DEC 5, 1974

WHERE THE GOVERNMENT ESTABLISHES DELIVERY OF SHIPMENT TO CARRIER IN GOOD ORDER AND CONDITION, THE BURDEN SHIFTS TO CARRIER TO ESTABLISH DELIVERY TO CONSIGNEE OR THE ABSENCE OF LIABILITY UNDER ONE OF THE EXCEPTED CAUSES.

BROWN TRANSPORT CORP.:

BROWN TRANSPORT CORP. HAS REQUESTED REVIEW OF THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING ITS CLAIM FOR $10,479.61 IN CONNECTION WITH A LOST SHIPMENT OF FREIGHT.

THE RECORD IN THIS CASE INDICATES THAT GOVERNMENT BILL OF LADING E 9125166, DATED DECEMBER 4, 1969, COVERED THE MOVEMENT OF 15 PIECES OF FREIGHT WEIGHING 1,756 POUNDS FROM SHERMAN AIR FORCE BASE, OKLAHOMA, TO ROBINS AIR FORCE BASE, GEORGIA. BEST WAY FREIGHT LINES ACKNOWLEDGES RECEIPT OF THE SHIPMENT AT ORIGIN AND ADVISES THAT IT WAS LATER DELIVERED TO T.I.M.E.-DC, WHICH IN TURN TENDERED 11 ITEMS TO BROWN TRANSPORT CORP. NONE OF THE ITEMS IN THE SHIPMENT WAS REPORTEDLY RECEIVED AT ROBINS AND NO PROOF OF DELIVERY WAS EVER SUPPLIED. THE ADMINISTRATIVE OFFICE REPORTS THAT ALTHOUGH THE CONSIGNEE REQUESTED BEST WAY TO FORWARD A COPY OF ITS SIGNED FREIGHT BILL AS PROOF OF DELIVERY, THE CARRIER DID NOT FURNISH THE COPY OR ACKNOWLEDGE THE REQUEST. A DISCREPANCY IN SHIPMENT REPORT WAS ISSUED ON JULY 30, 1970, BY ROBINS AND WAS AMENDED ON NOVEMBER 10, 1970, TO CORRECT THE BILL OF LADING NUMBER. THE REVERSE OF THE BILL OF LADING WAS ANNOTATED TO SHOW A SHORTAGE OF 1,756 POUNDS AND THE CONSIGNEE'S CERTIFICATE OF DELIVERY WAS MARKED "ALL SHORT" ON AUGUST 18, 1970.

A CLAIM FOR $10,479.61 WAS FILED WITH BEST WAY BY THE AIR FORCE ON FEBRUARY 16, 1972. SUBSEQUENT AIR FORCE CORRESPONDENCE WITH BEST WAY IS DATED JULY 21, 1972, AND FEBRUARY 23, 1973, WITH SETOFF OF THE CLAIM BEING ACCOMPLISHED ON SEPTEMBER 19, 1973.

BROWN'S CLAIM FOR RETURN OF THE $10,479.61 SETOFF AGAINST BEST WAY WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION BASED ON THE WELL ESTABLISHED PRINCIPLES OF COMMON CARRIER LIABILITY. BY SHOWING THAT THE SHIPMENT WAS TENDERED TO THE CARRIER IN GOOD CONDITION, THAT THE SHIPMENT WAS NEVER RECEIVED, AND THE AMOUNT OF THE LOSS, A PRIMA FACIE CASE OF CARRIER LIABILITY IS ESTABLISHED. THE BURDEN IS THEN SHIFTED TO THE CARRIER TO SHOW THAT THE LOSS OR DAMAGE WAS DUE TO AN EXCEPTED CAUSE AND THAT THE CARRIER WAS FREE FROM NEGLIGENCE. MISSOURI P.R.R. V. ELMORE & STAHL, 377 U.S. 134, 138 (1964).

THE CARRIER HAS NOT PRESENTED ANY EVIDENCE ABOUT THE CAUSE OF THE LOSS AND ADMITS THAT THE ACTION OF TRANSPORTATION AND CLAIMS DIVISION IS LEGALLY CORRECT. HOWEVER, THE CARRIER STATES THAT IT CANNOT TRACE THE SHIPMENT PROPERLY BECAUSE OF THE DELAY OF THE GOVERNMENT IN FILING A CLAIM. THE CARRIER ALSO CONTENDS THAT THE GOVERNMENT FAILED TO SEARCH FOR THE SHIPMENT AT THE POINT OF ORIGIN OR OTHER FACILITIES WHERE THE SHIPMENT WAS CONCEIVABLY MISROUTED. NEITHER OF THESE POINTS HAS ANY MERIT.

WHILE THERE IS SOME UNCERTAINTY AS TO WHEN THE CLAIM WAS ACTUALLY FILED, NOTICE OF THE CLAIM WAS ACKNOWLEDGED BY BEST WAY ON OCTOBER 4, 1972, WITHIN 3 YEARS OF THE DATE OF THE SHIPMENT. THEREFORE, THE CARRIER HAS NOT BEEN PREJUDICED BY THE DELAY. WE NOTE THAT THE INITIAL DELAY IN FILING THE CLAIM WITH BEST WAY RESULTED FROM THE AIR FORCE ATTEMPTS TO GET ACCURATE STATEMENTS OF THE ACTUAL VALUE OF SHIPMENTS. THIS PROCESS RESULTED IN A REDUCTION OF THE CLAIM FROM APPROXIMATELY $74,000 TO $10,479.61.

NOR IS THE CARRIER'S LIABILITY DIMINISHED BECAUSE THE GOVERNMENT HAS NOT MADE EXHAUSTIVE SEARCHES FOR THE MISSING GOODS, THE BURDEN OF LOCATING THE SHIPMENT IS ON THE CARRIER, AND THE AIR FORCE IS UNDER NO OBLIGATION TO INSTITUTE EXTENSIVE SEARCHES IN AN ATTEMPT TO LOCATE THE MISSING GOODS.

ACCORDINGLY, THE ACTION OF TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.