There is substantial evidence that the claimed model of speaker was the one in fact tendered where the record shows that (1) the speaker shipped sustained casing damage that was noted at delivery. (3) no other speaker that was shipped was damaged. They were noted on the inventory as items 56 and 59. Concluded that it was not repairable. No damage to the speaker was noted at delivery. Ace nevertheless concedes that a speaker was damaged. Points out that the Pioneer speaker that the shipper says he shipped is larger than 1.5 cubic feet. Ace argues that whatever speaker was damaged therefore could not have been the one that it was tendered. The Claims Group concluded that although the notation on the inventory of the carton's size is troubling.
Matter of: Ace Moving & Storage, Inc. File: B-248898 Date: June 26, 1992
PROCUREMENT Payment/Discharge Shipment Carrier liability Amount determination GAO review PROCUREMENT Payment/Discharge Shipment Damages Evidence sufficiency While carrier concedes that after moving a shipment of household goods it delivered a stereo speaker in a damaged condition, it questions the amount of the damages claimed on the basis that the model speaker the shipper brought in for a repair estimate could not fit into the size of the carton noted on the inventory. However, there is substantial evidence that the claimed model of speaker was the one in fact tendered where the record shows that (1) the speaker shipped sustained casing damage that was noted at delivery; (2) the speaker presented to the repair facility had casing damage; and (3) no other speaker that was shipped was damaged.
DECISION Ace Moving & Storage, Inc., requests review of our Claims Group's settlement denying the company a refund of $237.50 set off by the Air Force against funds otherwise due Ace, for damage to a stereo speaker incurred while moving a service member's household goods. We affirm the Claims Group's decision.
The member tendered stereo speakers to the carrier on March 15, 1988, in connection with a move from Colorado Springs, Colorado to Keesler Air Force Base, Mississippi. They were noted on the inventory as items 56 and 59, each as "1.5 Speaker CP." The member contends that he shipped, and after delivery brought to a repair facility for a repair estimate, a P10 S -710 Pioneer speaker. The facility observed damage to such a speaker, and concluded that it was not repairable, quoting a replacement cost of $250. The Air Force set off $237.50 as the depreciated replacement cost.
Ace complains that, according to its copy of the Joint Statement of Loss or Damage At Delivery, DD Form 1840, no damage to the speaker was noted at delivery. Ace nevertheless concedes that a speaker was damaged, but points out that the Pioneer speaker that the shipper says he shipped is larger than 1.5 cubic feet. Ace argues that whatever speaker was damaged therefore could not have been the one that it was tendered. In response, the Air Force says that its copy of the DD Form 1840 in fact does list damage to item 56, one of the speakers. The Air Force attributes the inventory reference to a 1.5 cubic foot carton to mismarking by Ace's representative.
The Claims Group concluded that although the notation on the inventory of the carton's size is troubling, the preponderance of the evidence shows that the speaker claimed by the shipper in fact was the one tendered.
A prima facie case of carrier liability for damage is established when the shipper shows (1) that the property was tendered to the carrier in a certain condition, (2) that the property was delivered in a more damaged condition, and (3) the amount of the damage. The burden of proof then shifts to the carrier. Missouri Pacific Railroad Co. v. Elmore Stahl, 377 U.S. 134, 138 (1964).
As stated above, Ace admits to having delivered a damaged speaker.
Moreover, despite Ace's contention that its copy of the DD Form 1840 indicates that no damages were noted, the carrier has provided us a copy of the DD Form 1840 that it maintained in its files, and it appears to match the DD Form 1840 in the Air Force's records. The form, signed by the carrier's representative, indicates that the speaker had a "broken casing." In these circumstances, we conclude that Ace in fact delivered a speaker damaged as indicated, and that such damage was witnessed by the carrier's agent at delivery. See McNamara-Lunz Vans and Warehouses, Inc., 57 Comp.Gen. 415, 419 (1978).
We find no merit in Ace's contention that the Pioneer speaker could not have been the one damaged, because it does not fit into a 1.5 cubic foot box. The record does not show that any other speaker that was shipped (item 59 was the only other one) was damaged. Further, the DD Form 1840 establishes that Ace delivered a speaker with a broken casing, and about a month later the member brought a speaker with casing damage to a repair facility for an estimate, at which time additional damage was noted. The repair facility identified the speaker it was shown as a P10 S-170 Pioneer, and the damages the facility found included a broken casing.
We think that the Claims Group reasonably concluded from this record that the speaker tendered to Ace and damaged was the one brought to the repair facility. In this respect, the inventory entry "1.5" was the carrier's terminology, and we find it understandable that the shipper, in observing the packing, might not have recognized its meaning and therefore did not object to the listed box size. The Claims Group's settlement is affirmed.
To: Director, Claims Group/GGD Sharon Green From: General Counsel James F. Hinchman Subject: Ace Moving & Storage, Inc. (Z-1348910(39)) (B-248898)
Returned is your Claims File Z-1348910(39) and a copy of our decision affirming your settlement.