1999 Transportation and Contractual Decisions
These 21 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.
The Claims Appeals Board will accept the Air Force's finding that the proper rate of depreciation for music compact disks is ten percent when there is no agreement between the industry and the Services concerning the rate of depreciation for CDs and the carrier has not provided clear and convincing evidence showing that a higher rate is appropriate.
A carrier's liability for transit damage is the lesser of the cost of repair or replacement cost (less depreciation and salvage). The adjudicating Naval Legal Service Office should credit a carrier for salvage when, under a proper comparison of depreciated replacement cost and repair costs, the carrier is liable for a lesser amount of damages under the depreciated replacement cost measure of damages. If the adjudicator uses the repair measure of damages, but reduces the member's recovery for repairs to reflect pre-existing damage (PED) to the property, he should also consider PED in any competing calculation of the carrier's damages under the depreciated replacement cost method of measuring damages.
The member purchased a signed, numbered printwhich was issued in 1985. In 1995, the member shipped the print with his household goods. When the print arrived at destination, the frame surrounding it was damaged and the glass was shattered. The member also states that the print itself was damaged by the shattered glass. The Army calculated the measure of damages based on the replacement cost of the print even though the member kept the print and reinstalled it in the frame with new glass. When the carrier requested salvage, the member refused to turn over the damaged print to the carrier; the Army credited the carrier with a 25 percent credit. A more reasonable method of calculating the measure of damage in this instance was to appraise the print to determine its current value at delivery and base damages on the difference between that amount and the replacement cost.
A pick up and delivery charge, which was part of a carrier-provided repair estimate which the Air Force used to determine the carrier's liability, should be included as an element of damage without the member showing that he actually incurred the charge by having his goods removed for repair.
When the Service obtains a repair estimate on a damaged item, it is not required to also document the depreciated replacement cost. The depreciated cost used in determining carrier liability in household goods cases is the replacement cost of the lost or damaged item at destination, not the purchase price. The carrier cannot overcome a repair estimate for purposes of a prima facie case of liability against it merely by arguing the depreciated purchase price is less than the repair cost.
The record supports a prima facie case of liability against a carrier for its failure to deliver a refrigerator when the refrigerator is listed on the descriptive inventory and the member dispatches notice to the carrier within 28 days of delivery that the item was missing. The carrier does not overcome the prima facie case merely by arguing on appeal that the refrigerator was such a large and essential appliance that the member would have had to advise the carrier of its missing status at delivery.
A service member presents sufficient evidence of loss or damage to support a prima facie case of liability against a household goods carrier where the carrier delivers an entertainment center missing two major parts and the member provides evidence of the depreciated replacement cost. The carrier has the duty to investigate the claim to determine the nature of the missing parts, and if the carrier requests clarification from the member or service concerning the nature of those parts during the 120-day period when the carrier considers the claim, the member or the service must reasonably cooperate in responding to the carrier's request for information. However, the carrier's rights are not substantially prejudiced where it had an opportunity to obtain the information about the missing parts at delivery or where it failed to inspect.
The record contains sufficient evidence of the tender of bats, gloves, and other athletic equipment to hold a carrier prima facie liable for their loss when the service member claims, even without a separate supporting statement, that these athletic articles were removed from a hallway closet and packed by the carrier in a wardrobe carton described in the inventory by the carrier's agent as "clothes/hallway." The carrier's claim for refund on the basis that the member failed to support the tender of these articles, is not meritorious when the descriptive inventory includes three other wardrobe cartons which, in contrast, were simply described as "clothes."
The service member fails to provide sufficient evidence to establish a prima facie case of liability against a carrier on the issue of whether he tendered six baseball card collections claimed to be worth $6,000 to a household goods carrier when the member admits that he has no direct evidence that he owned the six collections and that the only evidence that he owned them was his claim, his statement that he owned collections worth about $25,000 with 45,000 cards, and statements by his wife and a friend indicating that he was an avid baseball card collector. The record is devoid of any evidence of proof of ownership of the surviving collections in the value claimed by the member.
The Air Force acted reasonably in charging the carrier with the replacement of two ordinary household items which were reported by the member and the carrier's representative as missing at delivery when: the Air Force had waited 58 days before approving payment to the member; the carrier had not indicated in any way that it was likely to recover the items; and the Air Force did not have any information indicating that the carrier had recovered the items until more than 70 days after delivery.
A carrier is not entitled to an enlargement of time to inspect damaged household goods merely because it was unable to contact a member who was on leave or temporary duty travel to arrange the inspection. For purposes of the Military-Industry Memorandum of Understanding on Loss and Damage Rules (MOU), effective January 1, 1992, the carrier must show, among other things, evidence consistent with the member's refusal to allow the carrier its inspection rights and that the carrier aggressively pursued those rights.
The Air Force set off money from a household goods carrier to recover transit damage the carrier caused to a service member's property. The Air Force based the amount of the carrier's liability on an estimate of repair costs extrapolated from depreciated replacement costs without obtaining an actual repair estimate. Assessment of liability in this manner is reasonable to establish a prima facie case of liability when an actual repair estimate is unavailable at destination and when the carrier failed to exercise its inspection right and obtain its own repair estimate to confirm whether the Air Force's claim exceeded its maximum liability, i.e., the lesser of repair costs or depreciated replacement costs.
The burden is on the carrier to prove by clear and convincing evidence that the military service's calculation of damages was unreasonable particularly where it is undisputed that damage occurred during transit; the carrier did not physically inspect the damaged item despite numerous opportunities to do so; essential information about the damaged item may have been discovered during inspection; and a service official determined the replacement cost by physically inspecting the damaged item and comparing it to a similar item in the catalog of a major department store, contemporaneously recording the basis for the estimate in a chronology sheet provided to the carrier.
(MOU) the service or service member must dispatch the Notice of Loss or Damage (DD Form 1840R) noting additional loss or damage to the carrier at the address appearing in block 9 of the Joint Statement of Loss or Damage at Delivery (DD Form 1840), the reverse side of the DD Form 1840R. When the carrier clearly designates an address in block 9 and the service dispatches the DD Form 1840R to a different address, the service fails to comply with the requirements of the MOU. However, where there is an inference that the proper carrier officials received notice of the additional loss or damage despite the service's failure to properly dispatch the DD Form 1840R, the service's breach of the MOU's requirements is harmless error.
A carrier cannot limit its liability for all high value personal property in a shipment of a service member's household goods moving under the provisions of the Military Traffic Management Command's (MTMC) Domestic Personal Property Rate Solicitation D-2 to an amount lower than that provided in the Solicitation merely by obtaining an agreement from the member that the member's failure to declare an item exceeding a certain value will limit the member's recovery to a certain amount for that item.
(DD Form 1840R) is controlling for purposes of the 75-day dispatch period required by the Military-Industry Memorandum of Understanding on Loss and Damage Rules. A carrier cannot avoid liability due to lack of otherwise timely notice when it complains that the Army dispatched the Notice to an incorrect address, and therefore the carrier failed to receive the Notice, because the second of five numbers in the carrier's street address appearing in block 9 of the Joint Statement of Loss or Damage at Delivery (DD Form 1840, the reverse side of the DD Form 1840R) was illegible. The carrier is at least partially responsible because it is responsible for completing block 9 of the DD Form 1840 and its agent signed the form with the illegible address on it.
A carrier fails to meet its burden of proof in showing that a military service acted arbitrarily, capriciously or unreasonably in applying a rate of depreciation to determine the measure of damages (depreciated replacement costs) for missing household property when the type of property lost is not included in the Joint Military-Industry Depreciation Guide, the carrier fails to provide clear and convincing evidence of the appropriate rate, and there appears to be a rational basis for the rate the service applied.
1. Where no pre-existing damage (PED) is reported, or the PED is clearly different from the damage claimed, we will scrutinize an attempt by a carrier to avoid liability merely by pointing out discrepancies between the description of the damage as reported on the DD Form 1840R and the description of the damage on the applicable estimate. Generally, the member is not estopped from claiming more damage to a specific item than that noted on the DD Form 1840R. The purpose of the DD Form 1840R is to provide notice to the carrier that damage occurred so that the carrier can investigate. 2. Generally, the dispatch date entered on the Notice of Loss or Damage (DD Form 1840R) is controlling for purposes of the 75-day dispatch period required by the Military-Industry Memorandum of Understanding on Loss and Damage Rules. The failure to simultaneously dispatch a copy of the DD Form 1840R to a higher military headquarters does not necessarily demonstrate that the claims office also failed to dispatch the original to the carrier where the certification on the DD Form 1840R clearly indicates dispatch to the carrier within the 75-day period.
The Joint Military-Industry Agreement on Carrier Recovery on Code 5 and Code T Shipments, effective May 1, 1975, provides that "the Government will offer to accept a compromise of 50% of the amount the Government determines to be due" for loss/damage in Code 5 and Code T shipments. The 1975 Agreement also provides that the offer of compromise is predicated upon prompt acceptance and payment of the Government offer because the purpose of the 50/50 compromise rule is to reduce the amount of time and paperwork involved in settling claims. The carrier is deemed to have waived its right to such a compromise settlement if it does not settle the claim within 120 days or it chooses to argue its liability as to individual items in the shipment.
The Military-Industry Memorandum of Understanding on Loss and Damage Rules (MOU) effective January 1, 1992, provides that for loss or transit damage not reported at delivery, "the carrier shall accept written documentation on the DD Form 1840R, dispatched within 75 calendar days of delivery to the address listed in block 9 on the DD Form 1840, as overcoming the presumption of correctness of the delivery receipt." When the military service admits that it did not dispatch the Notice of Loss or Damage, DD Form 1840R, to the address listed in block 9 of the DD Form 1840, the service has not complied with contractual requirements for adequate notice.
1. The Military-Industry Memorandum of Understanding on Loss and Damage Rules (MOU) provides that the claims office will use a carrier's itemized estimate received more than 45 days after delivery but prior to dispatch of the Demand on Carrier if the claim has not already been adjudicated; the estimate is the lowest overall; and the repair firm selected by the carrier can and will perform adequately, based on the firm's reputation for timely and satisfactory performance. A repair estimate offered on behalf of the carrier is not untimely merely because approximately two years had elapsed between delivery and the time that the carrier's repairer prepared the estimate when it is offered by the carrier prior to the Demand on Carrier. 2. The MOU also states that when the carrier's estimate is timely, if the carrier's estimate is the lowest overall and is not used, the claims office will advise the carrier in writing of the reason. In other words, the claims office is not required to use the estimate if it articulates in writing a reasonable basis for not doing so. For example, if the claims office contends that an item is not repairable as proposed by the carrier, it must at least offer a reasonably focused estimate finding that the specific item furniture could not have been so repaired or material from the manufacturer to the same effect.