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1996 Transportation and Contractual Decisions

 

      These 20 Board decisions involve a carrier's dispute over whether it is liable for transit loss or damage. They also include all kinds of quasi-contractual disputes which are settled under Section 3702 of title 31 of the United States Code. They do not include requests by carriers for review of the General Services Administration's transportation audit; the General Services Administration Board of Contract Appeals reviews such matters.

Other years: 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2011

General; reconsideration

12/20/1996

A petition for reconsideration is denied where it essentially only restates arguments in the original request for review, and presents no evidence demonstrating an error in fact or law in the prior decision.


Transit Damage; notice Transit Damage; pre-existing damage

11/27/1996

1. When a service member ships his household goods and notifies the carrier on a DD Form 1840R that it caused transit damage to a particular item of property, the service member is not necessarily limited to the damage described on the notice for the particular item. The purpose of the DD Form 1840R is to provide notice to the carrier to inspect the property involved for transit damage. 2. The fact that some pre-existing damage may be repaired incidental to the repair of transit damage does not diminish a carrier's liability where the carrier has not demonstrated that the additional cost for doing so is ascertainable. 3. Under the Military-Industry Memorandum of Understanding on salvage, a household goods carrier generally must take possession of a salvage item not later than 30 days after receipt of the government's claim. 4. The burden of establishing fraud rests on the party alleging it and must be proven by evidence sufficient to overcome the presumption in favor of honesty and fair dealing. 5. Consistent with the practice of the Comptroller General when he considered claims by household goods carriers for recovery of agency offsets for transit loss/damage, DOHA does not question an agency's calculation of the value of damages to items in a shipment of household goods unless the carrier presents clear and convincing evidence that the agency acted unreasonably.


Transit Damage; last handler rule

11/21/1996

A service member has demonstrated a prima facie case of liability against a delivering carrier for transit damage when he shows that a certain type of damage to an item was not noted by the non-temporary storage (NTS) facility when the member tendered the item to the facility, such damage was not noted by the carrier on the rider it made when it obtained the item from the NTS facility even though it noted other damage to the item, and the item was delivered with such a damage.


Transit Damage; notice

11/19/1996

Failure of the government or service member to complete the Notice of Loss or Damage at Delivery, DD Form 1840R, with the carrier's proper address, as requested by the form, does not invalidate a service member's prima facie claim of liability against a carrier if there is evidence otherwise that timely and adequate notice was sent to alert the carrier of the need to investigate for possible loss/damage in the shipment.


General; reconsideration

11/07/1996

1. Carrier requests reconsideration of DOHA Claims Appeal. To prevail on reconsideration the carrier must demonstrate an error in fact or law. Neither disagreement with a decision nor restatement of arguments already made establishes that the decision was based on an error of fact or law. 2. This office has no authority to consider claims for interest. Questions regarding payment and interest should be directed to the service or agency involved.


Transit Damage; notice

11/05/1996

The erroneous use of a copy of a Joint Statement of Loss or Damage at Delivery (DD Form 1840), instead of a Notice of Loss or Damage (DD Form 1840R), to notify the carrier of loss or damage discovered after delivery does not invalidate a service member's prima facie claim of liability against a carrier if the notice otherwise is timely and adequate to alert the carrier of the need to investigate for possible loss/damage on the shipment.


Transit Damage; burden of proof

11/04/1996

Carrier does not meet its burden to overcome the prima facie case for loss or damage to a service member's household goods by merely arguing that the Joint Statement of Loss or Damage at Delivery (DD Form 1840) is suspect. The DD Form 1840 appears to be valid on its face; it indicates that it was signed and dated on the delivery date by the service member and the carrier's representative and that certain items were reported as lost or damaged. The carrier's attempt to impeach the DD Form 1840 with evidence that the government failed to check a "Yes" block on an associated Shipment Evaluation and Inspection Record (DD Form 2223), to indicate that there was recorded loss or damage at delivery, fails because while the government did not check the "Yes" block on the DD Form 2223, neither did it check the "No" block. The DD Form 2223 was not fully completed, and the Army explained that it forwarded a copy of the DD Form 2223 to the carrier before the end of the time period provided for the delivering agent to forward the DD Form 1840 to the Army transportation officer reporting loss or damage at delivery. This is not clear and convincing evidence necessary to overcome an apparently valid DD Form 1840.


General; reconsideration

10/15/1996

A petition for reconsideration is denied where it essentially only restates arguments in the original request for review and presents no evidence demonstrating an error in fact or law in the prior decision.


Transit Damage; measure of damages

10/07/1996

The Defense Office of Hearings and Appeals will not question an agency's calculation of the value of the damages to items in the shipment of a service member's household goods unless the carrier presents clear and convincing evidence that the agency acted unreasonably. Mere disagreement with the Air Force's determinations does not meet the carrier's burden of proof. This decision was affirmed by the DoD Deputy General Counsel (Fiscal) on December 21, 2001.


Transit Damage; common carrier liability

10/02/1996

A carrier is not automatically relieved of common carrier liability for damage to, or loss of, a service member's household goods merely because the goods are not delivered to the service member within the period authorized for storage in transit and the carrier continues to hold them in a non-temporary storage/warehouse capacity.


Transit Damage; sets

09/26/1996

Where the carrier loses the marble top in a coffee table which was one of three components (along with two end tables) in a living room furniture set, and the service member cannot obtain marble for the coffee table to match the marble tops in the end tables, the carrier is also liable for replacing the marble in the end tables to return the member to the position he was in before the loss occurred.


Transit Damage; last handler rule

09/19/1996

Where a service member places his household goods into non-temporary storage (NTS) and they are moved under the Direct Procurement Method, the delivering carrier cannot avoid liability for loss of a portion of the household goods merely by relying on the fact that a prior custodian of the shipment had failed to deliver an unspecified portion of the goods to the next custodian. The delivering carrier must present evidence, by offering a properly completed rider, which shows specifically what it received from its predecessor custodian, so that these items can be compared against the origin inventory.


Transit Damage; tender

09/05/1996

1. The burden of establishing fraud rests on the party alleging it and must be proven by evidence sufficient to overcome the presumption in favor of honesty and fair dealing. Carrier's claim is denied where it provides no evidence to substantiate its allegation that the claim was fraudulent. 2. Tender of an item to the carrier is the first element in establishing a prima facie case of carrier liability for loss or damaged household goods; the shipper also must show that the item was not delivered (or was delivered in a more damaged condition) and the value of the item. Carrier's appeal for refund is granted where shipper provides no proof of purchase of the items missing in circumstances where it would be reasonable to require such proof. Carrier's claim for refund is denied where the carrier does not provide clear and convincing evidence that the agency determination of a reasonable relationship between the carton description and the missing items was either wrong or unreasonable.


Transit Damage; prima facie Transit Damage; internal damage

09/05/1996

1. When an item is delivered in damaged condition and where damage is noted on the DD Form 1840 or 1840R, the fact that the carrier delivered the item establishes that the shipper owned and tendered that item. 2. When an item is not listed on the inventory, the shipper must present at least some substantive evidence of his tender of the item to the carrier beyond his claim and the acknowledgment on it of the penalties for filing a false claim. The service member must provide a statement reflecting personal knowledge of the circumstances surrounding the tender of the items to the carrier or other substantive evidence to support the tender. 3. Statements alone, from a repair person that electronic equipment was damaged during a move is insufficient to establish liability of the carrier. A prima facie case of liability may be established with regard to a video cassette recorder and compact disk player when, absent external damage, the shipper provides evidence that the items in question were in good working order at the time of tender and evidence that the damage was consistent with having been dropped or damaged in transit.


Transit Damage; non-temporary storage

09/05/1996

Where a service member places his household goods into non-temporary storage (NTS), and the descriptive inventory prepared by the NTS contractor indicates that a shipment of a service member's household goods contained two televisions, a carrier who obtains the household goods from the contractor without documenting by rider or otherwise that it did not receive either television, is not liable for the loss where the evidence is clear that both sets were delivered out of NTS prior to the carrier's control over the household goods.


Transit Damage; measure of damages

09/05/1996

The Defense Office of Hearings & Appeals will not question an agency's calculation of the value of the damages to items in the shipment of a service member's household goods unless the carrier presents clear and convincing evidence that the agency acted unreasonably. The Air Force's acceleration of depreciation of a one year old mattress and box spring to 25 percent to reflect the preexisting damage noted by the carrier on the descriptive inventory that they were both "soiled, stained and badly worn" is not unreasonable unless the carrier provides additional evidence demonstrating that 25 percent depreciation was clearly unreasonable. The inventory description, by itself, does not justify the 90 percent (maximum) depreciation advocated by the carrier.


Transit Damage; non-temporary storage

09/05/1996

A delivering carrier is responsible for the loss of, or damage to, a service member's household goods that were prepacked by a non-temporary storage contractor if the service member otherwise presents a prima facie case of liability against the delivering carrier. While the carrier may not have an obligation to open prepacked containers of household goods to examine their contents when those containers are in apparent good order, the carrier is the last bailee to possess such goods prior to delivery, and, in the absence of evidence that the loss did not occur in its custody, it is presumed that the loss did occur in the carrier's custody.


Transit Damage; measure of damages

09/05/1996

A Navy officer whose household goods were damaged in a move submitted repair estimates or receipts for the damaged items, and the Navy based its damage calculations on those estimates. In the absence of clear and convincing evidence that the Navy acted unreasonably, this Office will not question the Navy's use of that information rather than repair estimates from a company hired by the carrier.


Transit Damage; tender

09/05/1996

Tender of an item to a carrier is established as an element of a prima facie case of carrier liability where the item allegedly lost or damaged is reasonably related to the items shown on the inventory of a carton's contents, particularly where it would not have been unusual to pack the item in that carton, and the carrier did the packing and prepared the inventory list.


General; reconsideration

09/05/1996

A petition for reconsideration is denied where it essentially only restates arguments in the original request for review, and presents no evidence demonstrating an error in fact or law in the prior decision.


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Other years: 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2011
Last updated 22 Nov 2014