2001 Transportation and Contractual Decisions
These 8 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.
A prima facie case of carrier liability is established when an item claimed as lost is reasonably related to similar items shown on the inventory. Thus, the tender of "table legs" is sufficient evidence to show that the alleged missing legs were tendered to a carrier where the carrier failed to note the number of legs on the inventory.
Under the "last handler" rule, and by operation of applicable regulatory and contractual provisions, the presumption of liability for damage to goods transfers from the carrier to the warehouseman upon conversion of the goods from storage-in-transit (SIT) to permanent storage. The three-pronged test outlined in Fogarty Van Lines, B-235558.7, Dec. 28, 1994, and adopted in our decision DOHA Claims Case No. 96081204 (April 8, 1997), is overruled.
Absent clear proof by the carrier that transit damage did not occur while the goods were in its custody, a delivering carrier is presumed to be liable for damage as the “last handler” of the goods prepacked by the NTS contractor if the shipper otherwise presents sufficient evidence to establish a prima facie case of liability, even though the carrier is not under a general obligation to open such prepacked containers that are in apparent good order.
On disputed questions of fact between the claimant and the administrative office, we accept the statement of fact of the administrative office in the absence of clear and convincing contrary evidence.
In the absence of an agreement between the military services and the industry, where the military service applies a 10 percent rate of depreciation against a service member to the service member’s claim for damage to a receiver and cassette deck, but allows only seven percent to the carrier when it recovers for this damage, the Service must provide a clear explanation for the difference in treatment and the basis for the depreciation rate.
Generally, DOHA will not question an agency's calculation of the value of damages in transit loss and damage refund claims unless the carrier presents clear and convincing evidence of the agency's unreasonableness.
1. A carrier can be charged with loss even if items are not listed on the inventory, where other circumstances are sufficient to establish that the goods were tendered and lost.
2. The Defense Office of Hearings and Appeals will not question an agency's calculation of the value of the damages unless the carrier presents clear and convincing evidence that the agency acted unreasonably.
There is sufficient evidence to reasonably support a finding that a member tendered audio CDs in a carton of "books" for purposes of establishing a prima facie case of liability against a carrier when the member presents evidence that his CDs were shipped in book-like case which held such CDs, the member shipped a CD player, and there is no other item described as containing CDs in the carrier-prepared inventory.