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CASES DECIDED

IN

THE UNITED STATES COURT OF CLAIMS

June 1, 1961, to July 19, 1961, and other cases not heretofore pub

lished. Opinions are not ordinarily published until final judgment is rendered. Cases in which motions have been filed are not published until disposition of such motions.

GORDONS TRANSPORTS, INC., v. THE UNITED

STATES

(No. 419-58. Decided June 7, 1961)

ON THE PROOFS

Carriers; carriage of goods by motor carrier.-In an action by plain

tiff, a motor common carrier, to recover amounts withheld by the Government to compensate it for losses incurred as a result of plaintiff's delivery of freight in defective condition, on the ground that the damage to part of the shipment was caused by the manner in which the Government personnel handled the shipment after unloading, it is held that on the basis of the evidence, the water damage to the freight, consisting of aircraft brake assemblies, was due to the accident suffered by plaintiff's trailer in transit and also to the negligence of plaintiff's employees in packing the wet and dry freight to

gether in one trailer. Petition dismissed. Carriers; carriage of goods by motor carrier; loss of or injury to

goods; sufficiency of evidence. Proof that after a motor carrier's trailer was loaded with cartons of aircraft landing gears, brake assemblies and parts, the trailer was overturned in a ditch full of water, that some of the cartons became very wet, that the wet and dry cartons were thereafter reloaded into one trailer with only cardboard sheets to protect the dry from the wet cartons, that contemporaneously with the unloading of the freight at the consignee's Air Force Base, an employee of the consignee who handled the unloading noted on the bill of lading that the shipment was received in a very wet condition, and the following morning the carrier's authorized claim agent inspected the shipment and endorsed on the bill

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154 Ct. Cl. Opinion of the Court under the above notation that the carrier's agent acknow. ledged the discrepancy, made out a case of negligence of the carrier and placed on it the burden of showing that it was not

responsible for the injuries to the freight. Carriers on 132 United States Om 141(1)

Carriers; carriage of goods by motor carrier; loss of or injury to

goods; presumptions and burden of proof.—Since a common carrier is liable as an insurer under its contract to carry safely, the burden of showing that the loss of or injury to freight

was due to the fault of the consignee is on the carrier. Carriers Om 132

Louis 1. Dailey for plaintiff. Harold G. Hernly, and Wrape and Hernly were on the briefs.

Lewis A. Dille, with whom was Assistant Attorney General William H. Orrick, Jr., for defendant.

WHITAKER, Judge, delivered the opinion of the court:

Plaintiff, a motor common carrier, sues for money it claims is due it for the carriage of Government freight which has been withheld by defendant because of damage to a prior shipment of aircraft parts while in transit aboard one of plaintiff's trailers. Plaintiff concedes liability for a portion of the damages, but denies liability as to the rest, contending that the manner in which Government personnel handled the shipment after unloading caused additional damage for which plaintiff is not liable.

The Trial Commissioner was directed to make findings of fact and to recommend legal conclusions, in the light of the findings of fact, under Rule 45 (a) of the Rules of this court.

Pursuant to such reference, the Commissioner has submitted his findings of fact and conclusions of law.

The court, after having considered the evidence, and the briefs and argument of counsel, agrees with the result arrived at by the Commissioner, and adopts the findings and opinion of Trial Commissioner Saul R. Gamer, as hereinafter set forth, except for so much of the findings and opinion wherein it is stated that all 162 cartons of the aircraft parts were in Trailer V534 at the time of the accident.

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Opinion of the Court It is true, as found by the Commissioner, that the road manifest prepared by plaintiff showed the entire 162 cartons as being on the trailer; however, plaintiff's general claims agent and his assistant, who were present and counted the cartons at the scene of the accident, testified that there were only 136 cartons actually in the trailer at the time it was overturned into the drainage ditch, and that the remaining 26 arrived at plaintiff's home office in Memphis, Tennessee, on another vehicle. Although this testimony is somewhat contradictory of what is shown by the road manifest, we think it is not sufficiently discredited thereby to warrant its complete rejection. The road manifest is, of course, presumed to be accurate; however, that presumption is rebutted by the oral testimony. It is entirely possible that plaintiff's agent, in preparing the road manifest at the time the shipment was accepted in Chicago, entered on the road manifest the entire amount of the shipment consisting of 162 cartons, but when it was subsequently discovered that weight restrictions and limited space prevented the loading of the entire 162 cartons on Trailer V534, he failed to note that 26 of them were to be transported as a “follow lot” shipment in another trailer.

However, regardless of how many cartons were in the trailer at the time of the accident, we nevertheless must agree with the Commissioner that plaintiff cannot recover.

After the accident, the wet cartons were loaded on one trailer, and the supposedly dry cartons on another, and all of them were brought back to Memphis. There all 162 cartons—the 26 in the "follow lot” shipment having arrived in the meantime—were loaded on one trailer and sent on to Brookley Air Force Base. When the shipment arrived there, the evidence shows it was in a “very wet” condition, which fact was acknowledged by one of plaintiff's agents as evidenced by his signature on the back of the freight bill. The defendant's agent noted on the freight bill:

This shipment was received at Brookley AFB in a very wet condition. Subject to inspection for damage.

A. J. Taylor 2/14/56

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