B-234430.2, Jun 19, 1991, 91-1 CPD ***

B-234430.2, Jun 19, 1991, 91-1 CPD ***

PROCUREMENT - Payment/Discharge - Shipment - Carrier liability - Burden of proof DIGEST: The government's prima facie case of liability against a carrier for the loss of an item in a shipment of freight is not overcome if the carrier later returns overage of a different item that is not shown to be connected to the original shipment from which there was a loss.

Roadway Express, Inc.:

Roadway Express, Inc., requests review of our Claims Group's disallowance of its claim for reimbursement of $312.23 /1/ set off from revenues due to the firm by the Army to satisfy the loss of missing items on Government Bill of Lading (GBL) shipment T-2,557,501. Roadway denies liability for the missing items because it returned an extra carton from another shipment to a different destination received from the shipper on the same day.

We sustain the Claims Group's decision.

On August 5, 1986, the Defense General Supply Center in Bellbluff, Virginia, shipped eight cartons of underclothing, weighing 395 pounds to Fort Leonard Wood, Missouri. Upon delivery on August 8, 1986, one of the eight cartons, weighing 31 pounds, was reported missing. This shipment moved under Traffic Control Number (TCN) HX 37356204017JXX.

Also on August 5, 1986, the Bellbluff facility tendered another shipment to the carrier's driver under GBL T-2,557,477 (TCN HX 37306197547FXX), involving four cartons weighing 161 pounds, for delivery to Fort Leavenworth, Kansas. Upon delivery at Fort Leavenworth, a fifth carton weighing 14 pounds was discovered under TCN HX 37306197547F and was returned to Bellbluff. The fifth carton at Fort Leavenworth contained field jackets.

Roadway acknowledged receipt of eight cartons for Fort Leonard Wood, but it suggests that the Army could have mislabeled one of the eight cartons with a Fort Leavenworth label. Roadway maintains that it delivered the same total number of cartons to the two destinations as it received from Bellbluff-- a one carton shortage at Fort Leonard Wood is explained by a one carton overage at Fort Leavenworth.

We see no merit in Roadway's position.

A carrier is presumed liable for loss of freight in transit upon a showing by the shipper that it delivered the item to the carrier, that the item did not arrive at destination, and the amount of damages. Thereafter, the carrier has the burden of proving by clear and convincing evidence both its freedom from negligence and that the loss was due to a recognized exception to the rule. Missouri Pacific R.R. Co. v. Elmore Stahl, 377 U.S. 134, 137-138 (1964); National Freight Claim Council, B-200549, Nov. 18, 1980.

Roadway contends that this presumption of liability does not apply because the company delivered all cartons received from the shipper. so concluding, Roadway assumes that the overage at Fort Leavenworth was the missing carton from Fort Leonard Wood. But, the record indicates that the overage at Fort Leavenworth involved a carton weighing 14 pounds instead of 31 pounds, involved different GBL and TCN numbers, and contained a different commodity than that shipped to Fort Leonard Wood.

In Roadway Express, Inc., B-234430, July 17, 1990, and Roadway Express, Inc., B-218992, Jan. 29, 1988, we held that the government's prima facie case of liability against a carrier for the loss of an item in a shipment is not overcome if the carrier later returns overage of a different item that is not shown to be connected to the original shipment from which there was a loss. The facts in the present case, and Roadway's characterization of them, are indistinguishable from those in our previous decisions.

The Claims Group's action is sustained.

/1 The value of the lost property is $230.85, and the additional amount involves unearned freight, interest, administrative costs and penalties.