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2000 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.

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

Transit Damage; prima facie - tender

09/21/2000

When an item is not listed on the inventory, the member 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. Such evidence may be 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. This requirement is met when the member explains that the missing audio CDs, cook books and recipe cards were packed into a carton described as "shoes" after he had moved these articles into a closet with the shoes just prior to tendering his household goods so that they would be readily accessible at delivery. The member also indicates he observed the packing at origin.


Transit Damage; notice of loss - sufficiency

09/11/2000

Under the Military-Industry Memorandum of Understanding on Loss and Damage Rules, the carrier shall accept written documentation on the Notice of Loss or Damage (DD Form 1840R) dispatched to the carrier within 75 calendar days of delivery, as sufficient to overcome the presumption of correctness of the delivery receipt. No loss or damage was reported at delivery on December 4, 1995, on the Joint Statement of Loss or Damage at Delivery (DD Form 1840). On February 2, 1996, the Navy and member advised the carrier of additional loss/damage to seven items on the DD Form 1840R. When the Navy dispatched its subrogated claim against the carrier about two years later, it also included notice of loss/damage to several other items on a DD Form 1840 (the front side of the DD Form 1840/1840R set). The Navy contends that the damages listed on the DD Form 1840 are a continuation of the damages noted on the DD Form 1840R. While not recommended, the DD Form 1840 may be used as a continuation to the listing of loss and damage on the DD Form 1840R, but it must meet the same dispatch requirements as the DD Form 1840R. The DD Form 1840 is not sufficient where the carrier's copy of the DD Form 1840R does include the DD Form 1840 as an integral part (e.g., the DD Form 1840 part on one side and the 1840 R on the other side of the same page) or where there is not sufficient independent evidence of dispatch (e.g., a reference to the DD Form 1840 on the DD Form 1840R). The claims examiner's failure to follow her own procedures, which would have included an incorporation of the DD Form 1840 by reference on the DD Form 1840R, also vitiates an inference of simultaneous dispatch.


Transit Damages; notice of damage - subsequent

09/06/2000

A shipper may dispatch notice of loss or damage anytime up to 75 days after delivery, even if he moves his damaged household goods prior to the dispatch of the notice. The carrier's inspection right under the Military-Industry Memorandum of Understanding on Loss and Damage Rules is not vitiated by such movement.


Transit Damage; measure of damages - carrier estimate

08/30/2000

Under the Military-Industry Memorandum of Understanding on Loss and Damage Rules, effective on January 1, 1992, if a carrier fails to present its damage estimate prior to the dispatch of the member's claim, to consider a carrier's estimate the carrier must show that the estimate submitted by the member was unreasonable in comparison with the market price in the area or that the price was unreasonable in relation to the value of the goods prior to being damaged.


Transit Damage; pre-existing damage

08/29/2000

Where the record shows the existence of pre-existing damage and lacks evidence of greater or different damage incurred in transit, the carrier is not liable for the damages.


Transit Damage; evidence of tender

07/31/2000

A notification of loss or damage is adequate to alert a carrier that all or parts of a set of encyclopedias was missing, not just one book, when the Descriptive Inventory in a household goods shipment contained boxes of books, and a timely dispatched Notice of Loss or Damage (DD Form 1840R) advised the carrier that there were "Missing of Ledder [sic] sets" with respect to some encyclopedias.


Transit Damage; offset - 10 years

07/24/2000

Under the Debt Collection Act, a government claim against a carrier for transit loss or damage it caused to a service member's shipment may be satisfied by means of administrative offset within 10 years of accrual of the claim.


Transit Damage; notification of loss - wrong address

07/21/2000

Under the 1992 version of the Military-Industry Memorandum of Understanding on Loss and Damage Rules (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.


Transit Damage; notice of loss - wrong address

07/20/2000

Under the 1992 version of the Military-Industry Memorandum of Understanding on Loss and Damage Rules (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.


Transit Damage; non-temporary storage - rider

05/31/2000

Where a service member places his household goods into non-temporary storage (NTS) and the delivering carrier fails to deliver an item and delivers others damaged, the delivering carrier cannot escape liability merely by producing a copy of a rider or exception sheet showing additional damages which was purportedly created between two prior NTS custodians but executed by only one of the two. The delivering carrier must follow the procedures in the Tender of Service for a rider or exception sheet to be recognized as evidence of the delivering carrier's non-culpability for the additional damages.  This decision was remanded by the DoD Deputy General Counsel (Fiscal) on  December 21, 2001, for further consideration of the depreciation rate.


Transit Damage; tender

05/25/2000

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 is reasonably related to items shown on the inventory, particularly where it would not have been unusual to pack the item in that container, and the carrier did the packing and prepared the inventory list. Accordingly, where a shipper claims, for example, that tapes and CDs were missing from an "entertainment center" in which they were normally maintained, there is sufficient evidence of tender for purposes of a prima facie case of liability against the carrier. In this instance the member's claim was supported by his statement in which he exhibited personal knowledge from packing day that the tapes and CDs were packed in the entertainment center.


Transit Damages; depreciation rate

05/25/2000

In adjudicating the amount of setoff from a household carrier to recover for damage to a dining chair, the military service decides whether the chair is depreciated as "Solid Wood (Expensive)" or "Ordinary Wood" under the Joint Military/Industry Depreciation Guide. The presence of cane or wicker as a component of the back part of a relatively expensive dining chair with a wood frame, does not, by itself, necessarily require the service to categorize the dining chair as "Ordinary Wood."


Transit Damage; notification of loss - post-delivery

05/17/2000

Post-delivery movement of a shipper's household goods does not invalidate the shipper's right under the Military-Industry Memorandum of Understanding on Loss and Damage Rules to dispatch notice of loss or damage anytime up to 75 days after delivery.


Transit Damage; tender

05/17/2000

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 boots and shoes were missing from a wardrobe carton marked as "clothes," there is sufficient evidence of tender for purposes of a prima facie case of liability against the carrier.


Transit Damage; prima facie -

05/02/2000

A shipper offers sufficient proof of a prima facie case of liability against a carrier for damage to a desktop computer when he offers evidence that the computer was in good working order prior to tender to the carrier and the nature of the internal damage is consistent with its having been mishandled or dropped, e.g., physical damage to otherwise sturdy components like a main board and drives. The mere lack of external damage is not sufficient evidence to rebut the carrier's liability.


Transit Damage; measure of damage

03/27/2000

Generally, an agency's determination concerning the amount of damages is a factual matter, and we will not disturb an agency's findings in the absence of clear and convincing evidence that the agency acted unreasonably. However, it was erroneous for the agency to use a replacement estimate for a VCR with more features than the missing VCR without explanation.


Transit Damage; measure of damages - depreciation

03/24/2000

To determine depreciated replacement costs, deprecation is measured from the date of purchase or original possession of the item as a household good (not from the manufacture date) to the date of loss or damage.


Transit Damage; prima facie

02/22/2000

A military service's failure to provide a carrier during the 120-day investigation and settlement period with support for the original cost of a sofa claimed as damaged and listed on the List of Property and Claims Analysis Chart (DD Form 1844) did not invalidate an otherwise prima facie case of liability against the carrier when: the record contained a repair estimate for the damages claimed; the carrier chose not to take advantage of opportunities to examine the damaged item and obtain necessary information upon which it could have ascertained depreciated replacement cost; the carrier actually settled the claim before requesting the purchase cost information; and the information requested (the purchase price) was not directly related to replacement costs.


Transit Damages; prima facie - rider

02/08/2000

When a service member tenders a household item in a certain condition to a non-temporary storage (NTS) facility or packing contractor, and the item is later transferred to a carrier for delivery to the service member, but the carrier delivers it in a more damaged condition, the delivering carrier as the last bailee to exercise possession over the item is deemed to be responsible for the damage. However, the carrier may show that it was not in possession of the item when the damage occurred, and in such circumstances, it will not be liable. A carrier may be able to show that an item was damaged before it assumed possession of it by preparing a valid exception or "rider," noting conditions different than those observed when the member turned his property over to the NTS facility or contractor. When the carrier prepares a rider that does not meet the requirements of the Tender of Service, especially material requirements such as the date of execution, a military service is reasonably justified in questioning the authenticity of the rider.


Transit Damage; salvage

01/28/2000

Generally a carrier may receive a credit of 25 percent for the depreciated replacement value of the salvage of items on which the carrier pays depreciated replacement value where a service member disposes of salvage to which a carrier is entitled prior to the expiration of time in which the carrier had to exercise its rights under the Military/Industry Memorandum of Understanding.


Transit Damage; burden of proof - rate of depreciation

01/13/2000

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.


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Other years: 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2011
Last updated 26 Jul 2014