2003 Transportation and Contractual Decisions
These 11 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 carrier can be charged with loss even when the item number is not listed on the notice of loss or damage.
The burden of establishing fraud rests upon the party alleging it, and must be proven by evidence sufficient to overcome the presumption of honesty and fair dealing.
This decision supplements our decision of August 12, 2003, involving the above matter. The Background and Discussion are incorporated by reference.
Where goods pass through the custody of several bailees, it is a presumption of the common law that the damage occurred in the hands of the last one, and a carrier that obtains household goods from an unrelated non-temporary storage (NTS) facility without excepting to delivery with a rider or its own inventory will be held liable for all the goods listed on the inventory it accepted. A carrier cannot escape liability for an item on a NTS facility's inventory sheet merely by arguing that the item was in a different print than other items on the inventory.
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 item to the carrier or evidence that the item was actually delivered to the shipper by the carrier, albeit missing some minor parts.
1. As the last custodian of the shipment, a carrier removing goods from a storage facility for delivery is presumed liable for any loss or damage.
2. Where a carrier provides no evidence nor specific argument as to why depreciation should be applied for the time period that a good is in storage, we accept the service's calculation of depreciation which may not include depreciation for that time period.
3. Where a carrier provides no evidence nor specific argument as to why minor preexisting damage warrants application of a depreciation rate different from the standard rate provided for in the Joint Military/Industry Depreciation Guide (JMIDG), we accept the service's application of the standard rate.
In quantum meruit/quantum valebant cases the amount paid to a claimant may not exceed the reasonable value of the benefit received by the government.
We accept an agency's finding of fact that a carrier failed to provide the member with a copy of the DD Form 1840/1840R as required by the Joint Military-Industry Memorandum of Understanding on Loss and Damage Rules, absent clear and convincing contrary evidence in the record.
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.
A functional toy steam engine is considered a "toy" for the purposes of calculating depreciation pursuant to the Joint Military-Industry Depreciation Guide (JMIDG).
A government employee without contracting authority requested that a vendor provide him several stock photographic transparencies for review for possible use in a marketing display. The claimant vendor provided those transparencies and contends that when it transmitted them, it also enclosed a "delivery contract" providing, among other things, for a license fee of $825 for each transparency used and $1,500 in liquidated damages per transparency if the government failed to return it. The government acquired the rights for one transparency by purchase order. The vendor claims $87,000 in liquidated damages for 58 unreturned transparencies based on the "delivery contract." The government provided sufficient evidence to indicate that it returned the transparencies to the vendor. Even if the government had failed to do so, we cannot allow a claim for $1,500 for each unreturned transparency under the theory of quantum meruit or quantum valebant based on the unsigned and unratified "delivery contract." In such quasi-contractual claims, the claimant must demonstrate a tangible benefit that accrued to the government in accepting and not returning transparencies that it did not use. The value of a misplaced and unused transparency is speculative.