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1997 Transportation and Contractual Decisions

 

      These 39 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

Transit Damage; tender

12/23/1997

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 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. Accordingly, where a shipper claims, for example, that a Battle Dress Uniform (BDU) set is missing from an item merely described by the carrier as a wardrobe packed by the carrier in the master bedroom, there is sufficient evidence of tender for purposes of a prima facie case of liability against the carrier.


Transit Damage; notice Transit Damage; memorandum of understanding

12/11/1997

The shipper provides adequate notice of structural damage to an item of furniture when the member and the carrier's agent noted at delivery only that hardware for the item was missing. The language of the Military-Industry Memorandum of Understanding on Loss and Damage Rules provides that the shipper's claim is not limited to the general description of the damage to the item as noted in the Joint Statement of Loss or Damage at Delivery.


Transit Damage; repair estimates

12/04/1997

In accordance with the Military-Industry Memorandum of Understanding, the military services must use a repair estimate timely submitted by a carrier when it is the lowest estimate and the service has determined that the carrier's firm can and will perform the repairs adequately for the price stated, based on the firm's reputation for timely and satisfactory performance. Even though the service offers a valid reason (repairer qualification) on appeal for not using the estimate submitted by the carrier, we will not accept the service's basis for not using a carrier's estimate when the service failed to provide this reason to the carrier during the adjudicatory process and merely stated that it was not required to use the carrier's estimate.


Transit Damage; prima facie

11/26/1997

A prima facie case of carrier liability exists with respect to the element of value when a shipper presents independent evidence of the value of certain art and antique objects from a person with some experience with such objects while the carrier merely objects but presents no evidence to counter the valuations or qualifications of the appraiser as presented by the shipper.


Transit Damage; last handler rule

11/18/1997

Under the last handler rule, the last custodian is presumed liable for the loss or damage to an item unless it shows that the loss or damage did not occur while the item was in its custody. Where carrier noted exceptions to missing portions of a lamp on a rider at pick up from a non-temporary storage (NTS) contractor, the carrier is not liable for the missing portions of the lamp.


Transit Damage; last handler rule

11/14/1997

The last custodian can avoid liability by showing that the damage or loss did not occur while the item was in its custody. Where carrier did not note any exceptions to a particular item on a rider at pick up from a non-temporary storage (NTS) facility, the carrier remains liable for damages. The carrier's argument that the NTS warehouse packed the item in a carton that was too small to contain the described article, does not in the circumstances here overcome the carrier's liability as last handler.


Transit Damage; pre-existing damage

10/28/1997

The shipper has presented prima facie evidence of transit damage to an item of furniture even though there were pre-existing scratches and chips to the front of the item where a Service inspector notes a difference in shading between the pre-existing and new damage and notes damage in another area of the item that was not reported as pre-existing in the descriptive inventory.


Transit Damage; pre-existing damage

09/08/1997

The Air Force reasonably found that there was sufficient evidence for a prima facie case of liability against a carrier for transit damage to the top of two pieces of furniture when the government conducted an inspection of the damages after delivery and found no evidence of damage on the two items of furniture except for the specific damages claimed, while the carrier did not conduct an after-delivery inspection and relied on its general remarks at origin on the Descriptive Inventory of similar damage to the top and to several other areas of each of the two items.


Transit Damage; burden of proof

08/27/1997

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. We will not infer fraud if the circumstances are as consistent with honesty and fair dealing as with dishonesty. A carrier's claim of fraud is denied where it merely shows that its copy of the Joint Statement of Loss or Damage, DD Form 1840, prepared at delivery from the original, is inconsistent with a photocopy of the same that the Service reports as the true and correct copy.


Transit Damage; burden of proof

07/30/1997

For evidentiary purposes, this Board will not accept a carrier's copy of a Descriptive Inventory in lieu of the carbon completed simultaneously with the original and found in the official record when the carrier does not offer clear and convincing evidence which authenticates its copy of the Descriptive Inventory as a reflection of the true and original version of the Descriptive Inventory and offers the copy into evidence late in the adjudicatory process after the Agency had filed its administrative report.


Transit Damage; measure of damages

07/15/1997

Generally, when settling a claim for loss or damage, a common carrier by motor vehicle of household goods shall use the replacement costs of the lost or damaged item as a base to apply a depreciation factor to arrive at the current actual value of the lost or damaged item; however, the government limits its recovery in subrogation of a service member's claim to costs of repair when those costs are less than depreciated replacement costs and when repair will restore the property owner to the condition he was in with respect to the property prior to shipment. When the government limits its recovery from the carrier to repair costs, the repair costs generally involve the full costs of repair, not a depreciation of them.


Transit Damage; memorandum of understanding

07/02/1997

Under the Military-Industry Memorandum of Understanding on Loss and Damage Rules (MOU) the carrier is obligated to pay for damage in transit to household goods that it moved when that damage is brought to its attention in a timely manner. The wording on the carrier's check to the effect that endorsement of the check is a settlement for all claims arising from the shipment does not end or void that obligation. The carrier is still liable for damaged goods not covered by the check, but still reported in a timely manner to the carrier.


Transit Damage; measure of damages Transit Damage; pre-existing damage

06/25/1997

1. Consistent with the policy established by the Comptroller General, our Office will not question an agency's calculation of the value of damages to items in a shipment of household goods unless the carrier demonstrates by clear and convincing evidence that the agency's determination was unreasonable. 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.


Transit Damage; notice

06/18/1997

When the Joint Statement of Loss or Damage at Delivery (DD Form 1840) notes that the contents of a tool box are missing, the carrier cannot presume the correctness of the delivery receipt, and it has adequate and timely notice that the shipper may file a claim against the carrier for tools shipped in the tool box. The shipper is not required to dispatch a subsequent Notice of Loss or Damage (DD Form 1840R) to the carrier within 75 days of delivery which specifies each tool that was lost.


Transit Damage; last handler rule

06/06/1997

In an action to recover from a carrier for damage to a household goods shipment, it is a presumption of the common law that the damage occurred in the hands of the last bailee. The last custodian can avoid liability by showing that the damage or loss did not occur while the item was in its custody. Where the shipper-supplied estimate indicates that the damage to an item was caused by improper packing and also dropping of the item, the carrier remains liable for the damage. This decision was affirmed by the DoD Deputy General Counsel (Fiscal) on December 21, 2001.


Transit Damage; notice

06/06/1997

The Notice of Loss or Damage, DD Form 1840R, merely provides general notice to the carrier that an item of personal property is missing or damaged and that the carrier should investigate the facts surrounding the loss. The service member is not required to precisely describe the damage in order to timely and adequately notify the carrier. Where a service member dispatches notice within 75 days of delivery notifying the carrier that his television has "problems coming on, loose inside," but he did not also notify the carrier of the reason for the malfunction (external damage to the rear panel of the television), the carrier has sufficient notice to inspect.


Transit Damage; depreciation Transit Damage; sales tax

06/06/1997

1. While depreciation should normally not be assessed for time in non-temporary storage, it is improper to ignore the possibility of depreciation in recovering from the carrier. When the carrier has provided no evidence nor any specific argument regarding why depreciation should be applied during a period of non-temporary storage, we accept the Service's calculation of depreciation which does not include depreciation during storage. 2. Sales taxes from repairs to the shipper's damaged goods are part of the damages for which the carrier is liable.


Transit Damage; depreciation

05/27/1997

Without detailed documentary evidence or an agreement between the industry and the Services, the Claims Appeals Board is not in a position to conclude what the rate of depreciation should be for any particular type of property. Where the Service applies a 10 percent rate of depreciation against a service member for damage to a camcorder, but allows the carrier only half that rate for recovery purposes, the Service must provide a clear explanation for the difference in treatment.


Transit Damage; last handler rule

05/22/1997

In an action to recover from a carrier for damage to a household goods shipment, it is a presumption of the common law that the damage occurred in the hands of the last bailee. Carrier which did not prepare a rider upon pick-up of a household goods shipment from a non-temporary storage warehouse remains liable for loss and damage to the shipment. This decision was affirmed by the DoD Deputy General Counsel (Fiscal) on December 21, 2001.


Transit Damage; measure of damages Transit Damage: pre-existing damage

05/16/1997

1. The long-standing rule is that we will not question a Service's use of a shipper-supplied estimate, rather than the carrier's, in the absence of clear and convincing evidence that the Service acted unreasonably in doing so. Where the shipper's repair estimate was for refinishing water damaged furniture and the carrier's repair estimate, for a lower dollar amount, was for recoating the lacquer on the furniture, the carrier has not provided evidence sufficient to establish that the Service's use of the shipper's estimate is unreasonable. 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.


Transit Damage; measure of damages

04/28/1997

This Office will not question an agency's calculation of the value of the damage 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. Carrier's appeal based on the fact that, until set off, it did not receive a copy of the shipper's estimate stating that the damaged item was unrepairable, does not provide sufficient evidence to overcome its liability for the depreciated replacement cost.


Transit Damage; measure of damages

04/28/1997

This Office will not question an agency's calculation of the value of the damage 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.


Transit Damage; memorandum of understanding

04/14/1997

1. A subcontracted carrier who has no privity with the government with regard to a shipment of household goods under a GBL has no standing to request reconsideration of a settlement certificate which addresses the claim of the carrier listed on the GBL. 2. Where the shipper initialed every item on the inventory, but understood that he could later submit the DD Form 1840R if he discovered items missing, the presumption that items reported as missing within 75 days of delivery were lost in the hands of the carrier applies even when the shipper has initialed the inventory to indicate the delivery of individual cartons 3. We accept the statement of facts as presented by the administrative office in the absence of clear and convincing contrary evidence by the claimant. 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.


Transit Damage; carrier liability

04/08/1997

A carrier is liable for damage to goods occurring during more than 180 days of SIT notwithstanding a regulation providing for the termination of GBL shipments in SIT after 180 days unless it takes certain steps outlined in Fogarty Van Lines, B-235558.7, Dec. 28, 1994. Carrier which completed a rider when placing the goods into SIT remains liable for the damage. A rider would have to have been completed and signed at the end of SIT when liability changed hands (at the end of SIT and the beginning of permanent storage) for the carrier to successfully deny liability.


Transit Damage; inherent vice Transit Damage; prima facie

03/21/1997

Under the Interstate Commerce Act, to establish a prima facie case of liability, the shipper must prove delivery of the goods to the initial carrier in good condition, damage to the goods before delivery to their final destination and the amount of damages. The burden of proof then shifts to the carrier to rebut the prima facie liability. A carrier may escape liability by affirmatively showing that the damage was caused by the shipper, acts of God, the public enemy, a public authority, or inherent vice or nature of the commodity, and that the carrier was not negligent.


Transit Damage; tender

03/13/1997

Where the carrier's representative marks carrier packed cartons on the Descriptive Inventory as either "dishes," "pots" or "pans," and the service member claims to have shipped pots, kitchen utensils, silverware, baking tins, an electric mixer, and knives in such cartons, there is sufficient evidence of tender of these items for a prima facie case of liability against the carrier.


Transit Damage; internal damage

03/13/1997

The government has not established a prima facie case of carrier liability when the damage claimed by the service member for an item of household goods is a type that cannot be observed by the carrier's inspection at tender; the record contains no proof of the good condition of the item at that time; and the record does not indicate that the damage resulted from other damage to the item for which the carrier is liable.


Transit Damage; tender

03/11/1997

A military service member has not established a prima facie case of liability for transit loss of a handmade silk Turkish prayer rug in a carton labeled "pillow," or in a carton labeled "blanket," when the service member does not offer a written statement detailing the circumstances surrounding the purchase, use and tender of the rug to the carrier and the evidence offered to establish tender is conflicting or otherwise not specific.


Transit Damage; compromise offers Transit Damage; measure of damages

03/06/1997

1. A compromise offer submitted to a carrier by an agency to settle a loss and damage claim does not bind the agency unless accepted by the carrier. Upon carrier rejection, the agency may set off monies otherwise due to the carrier up to the carrier's full contractual liability, whether or not they exceed the amount of the proposed compromise. Where the Service's claims office adjudicates a claim within its delegated settlement authority and states in writing that the carrier is relieved of liability for a particular item, the Service may not reinstate the claim while adjudicating other items in the same shipment. 2. This Office 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. 3. When an item is delivered in damaged condition and the damage is noted on the DD Form 1840R, the fact that the carrier delivered the item established that the shipper owned and tendered that item.


General; reconsideration

02/24/1997

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.


Transit Damage; notice

02/24/1997

Under the Military-Industry Memorandum of Understanding involving Loss and Damage Rules, a Notice of Loss or Damage (DD Form 1840R) may give the carrier enough information to initiate a prompt and complete investigation of a claim even if the written notice does not include specific item numbers, article descriptions, or the types of loss or damage.


Transit Damage; inspection Transit Damage; measure of damages

02/18/1997

1. When a carrier aggressively protects its rights to inspection and the member discards broken articles before the carrier has the opportunity to inspect, the carrier must have a substantial defense involving facts discoverable by inspection to overcome a prima facie case of liability. Where the government inspected the shipment twice before items were discarded or repaired and the carrier does not provide evidence of a substantial defense, the carrier remains liable for the damage. 2. A carrier's lower repair estimate does not prove that the shipper's estimates or the agency's calculation of the carrier's liability was unreasonable.


Transit Damage; last handler rule Transit Damage; rider

02/10/1997

In an action to recover from a carrier for damage to a household goods shipment, it is a presumption of the common law that the damage occurred in the hands of the last bailee. The last custodian can avoid liability by showing that the damage or loss did not occur while the item was in its custody. A carrier which did not prepare a rider upon pick up of a household goods shipment from a non-temporary storage warehouse remains liable for loss and/or damage to the shipment.


General; reconsideration

01/31/1997

To prevail on reconsideration, a party must demonstrate an error in fact or law, and neither disagreement with a decision nor restatement of arguments already made establishes that the decision was based on an error of fact or law.


Transit Damage; burden of proof

01/31/1997

On disputed questions of fact between the claimant and the administrative officers of the government, we accept the statement of fact furnished by the administrative officers in the absence of clear and convincing contrary evidence.


General; reconsideration

01/29/1997

To prevail on reconsideration, the carrier must demonstrate an error in fact or law, and neither disagreement with a decision nor restatement of arguments already made establishes that the decision was based on an error of fact or law.


Transit Damage; notice

01/27/1997

The Military-Industry Memorandum of Understanding governing claims for loss or damage to household goods directs that the notice to the carrier of loss or damage discovered after delivery on the Notice of Loss or Damage, DD Form 1840R, must be dispatched by the agency not later than 75 days following delivery. Although the record shows that the DD Form 1840R was dated as dispatched on July 1, 1992, the 70th day after delivery, but in fact was not postmarked until July 9, 1992, the 78th day, the postmark alone is not clear evidence that the claims office failed to dispatch the notice on the 70th day as indicated on the DD Form 1840R.


Transit Damage; measure of damages

01/08/1997

DOHA will not question an agency's calculation of the value of the damages to items in a service member's household shipment unless the carrier presents clear and convincing evidence that the calculation is unreasonable. The carrier has not met this burden of proof where it does not deny that it caused transit damage, the service member and agency present evidence of the depreciated replacement costs of the items involved, and the carrier's only response is that the damages were so insignificant that a loss of value award was the proper measure of the damages.


Transit Damage; compromise offers Transit Damage; measure of damages

01/06/1997

1. A compromise offer submitted to a carrier by an agency to settle a loss and damage claim does not bind the agency unless accepted by the carrier. Upon carrier rejection, the agency may set off from monies otherwise due to the carrier amounts up to the carrier's full contractual liability, whether or not they exceed the amount of the proposed compromise. 2. Carrier has not demonstrated that the Service's method of calculation of depreciation, which conforms with the practice used in loss and damage cases, was unreasonable where the carrier merely asserts a different method of calculation.


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