Concurring Opinion by Judge Laramore 154 Ct. Cl. This was followed by this notation of plaintiff's agent: Carrier agent acknowledges above discrepancy. This, we think, is sufficient to establish a prima facie case that the damage was caused by plaintiff and, hence, the burden is upon it to show that its common law duty for the protection of the cargo was discharged. Johnson Motor Transport v. United States, 137 Ct. Cl. 892. This, plaintiff has not shown. Contrary to what plaintiff's claims agent testified was considered to be good practice, it placed both dry cartons and wet cartons in the same trailer for shipment from Memphis to Brookley Air Force Base, separated by cardboard partitions, which, admittedly, were not water-proof, and all but 12 of the cartons upon arrival at Brookley were either wet or showed some evidence of having been in contact with water. From all this it can be reasonably inferred that additional water damage, including damage to some of the 26 cartons not involved in the accident, occurred while enroute from Memphis to Brookley. In all other respects we agree with the Trial Commissioner and adopt his findings and opinion as printed below. Plaintiff is not, therefore, entitled to recover and its petition will be dismissed. It is so ordered. DURFEE, Judge; MADDEN, Judge, and JONES, Chief Judge, concur. LARAMORE, Judge, concurring: I concur in the result reached by both the opinion of the majority and the opinion of the commissioner. However, I disagree with the majority opinion wherein it is held that only 136 cartons were in the trailer at the time of the accident. The commissioner who presided at the trial was in a position to judge the demeanor and credibility of the witnesses and the weight to be given their testimony. In spite of the fact that plaintiff's claim agent and an assistant testified that 26 cartons were in a "follow lot" shipment, the com 1 Opinion of Commissioner missioner apparently has rejected this evidence in favor of the documentary evidence. In other words, the manifest showed 162 cartons loaded; the plaintiff's claim agent the day after the accident sent a letter specifically stating that "136 cartons showed water damage"; the road manifest showed a recording by one of plaintiff's agents made at the scene of the accident, that 136 cartons were unloaded, which coincides with the number of water-damaged cartons reported by plaintiff's agent. As between a witness' memory and documents prepared at or near the time of the accident, the commissioner was, in my opinion, wholly justified in relying upon the contemporaneous documents. Furthermore, assuming that 136 cartons were water damaged in the accident, it would be entirely inconsistent for plaintiff now to say that 84 of the cartons were dry. For these reasons, I would adopt the report of the commissioner in respect to the number of cartons present in the trailer at the time of the accident. OPINION OF THE COMMISSIONER This case arises out of damage to a shipment of Government freight while being transported by plaintiff, a motor common carrier. The Government claims it incurred a loss and suffered damages totaling $9,907.87 as a result of plaintiff's delivery of the freight in a defective condition. Upon plaintiff's refusal to accept liability in such amount, the Government deducted that sum from amounts concededly due plaintiff on other shipments about which there is no dispute. Plaintiff admits it caused damage to the freight for which it is responsible, but contends its liability amounts only to the sum of $3,180.32. It argues that any damage exceeding that amount which defendant suffered was due to defendant's own negligent handling of the freight after plaintiff delivered it to defendant, as well as to the performance of unnecessary services in rehabilitating the freight so as to put it into serviceable condition. It therefore sues to recover $6,727.55, which is the difference between said two figures. At its terminal in Chicago, Illinois, plaintiff received from a connecting carrier a shipment consisting of 162 670-595-63- 2 Opinion of Commissioner 154 Ct. Cl. cardboard cartons and wirebound wooden boxes (said cartons and boxes being hereinafter sometimes collectively referred to as cartons) for delivery to the Brookley Air Force Base at Brookley, Alabama, which is located near Mobile, Alabama. The cartons contained airplane landing gears, brake assemblies and brake parts, which were manufactured and being shipped by the Bendix Products Division of the Bendix Aviation Corporation, located at South Bend, Indiana. Proceeding from Chicago, plaintiff's tractor-trailer unit carrying the shipment (as well as some non-Government freight) met with an accident near Coldwater, Mississippi. It was forced off the highway and into a drainage ditch, where it lay on its right side. As a result of heavy recent rains in the area, there was water in the ditch, and the entire right side of the trailer rested in the water to the extent of approximately 20 inches at the rear and approximately 12 inches at the front end, the trailer lying at an angle of approximately 35 degrees. Water entered the trailer and wet part of the freight, including the Bendix shipment herein involved. The trailer remained in the water approximately 3 hours, when it was pulled from the ditch and unloaded by plaintiff's employees who had come to the scene of the accident from Plaintiff's home office at Memphis, Tennessee, a distance of approximately 30 miles. Two other trailers were brought to the scene from Memphis, and the freight from the overturned trailer was then unloaded. Freight which was considered to be dry was placed in one trailer while wet freight was placed in the other. The two trailers then returned to Memphis where the wet and dry freight were unloaded and kept segregated at plaintiff's terminal. Since the accident occurred on a Saturday, when it was not possible to contact Bendix, to whom plaintiff contemplated returning the shipment, the cartons remained in this condition until the following Monday, when plaintiff's general claim agent telephoned Bendix, advised it of the accident and sought instructions. However, Bendix advised that because the shipment was moving on a Government bill of lading and title had passed to the Government, Ben 1 Opinion of Commissioner dix could not accept its return. Thereupon, plaintiff's claim agent telephoned the Brookley Air Force Base and advised it of the accident and the information received from Bendix. Brookley confirmed that since the shipment was moving on a Government bill of lading, it would have to be sent on to the Base. Thereupon, plaintiff loaded the shipment herein involved, consisting of all 162 cartons, both wet and dry, in a trailer and sent it on from Memphis to Mobile. The dry cartons were loaded in the front end (the nose) of the trailer, and the wet in the rear. Between the two was loaded some nonGovernment freight. Heavy cardboard sheets, acting as separators or partitions, were placed between the freight sections to aid in protecting the dry cartons from water that might come from the wet. The run from Memphis to Mobile is a 399-mile 15-hour one by tractor-trailer. It left Memphis Monday night and arrived at plaintiff's Mobile terminal the following day where, after some local city freight was unloaded, it was sent on to the Base. It was unloaded by the Base Tuesday night, shortly after its arrival. After inspection, defendant subsequently ran functional tests on the contents of all 162 cartons. Twelve brake assemblies, which arrived in dry cartons and showed no evidence of exposure to water, were not given any further treatment. Of the remaining 150, 36 assemblies were damaged beyond economical repair and were condemned. The balance of 114, which showed some evidence of rust or corrosion, were completely disassembled and processed to make certain that all rust and corrosion were removed, and then given corrosion protective treatment. After crediting plaintiff with the salvage value of the condemned assemblies, the balance of the loss on such assemblies, plus the cost of labor and materials on the 114 treated and processed ones, came to $9,907.87. No charges were assessed with respect to the contents of the 12 dry cartons. In contesting this $9,907.87 charge against it, which admittedly had its genesis in the accident in which its truck was involved and for which it must necessarily accept responsibility, plaintiff makes numerous contentions. After a careful examination and analysis of them, as hereinafter set forth, the conclusion is compelled that they must be rejected Opinion of Commissioner 154 Ct. CI. and that plaintiff is liable for the full amount of the charge. Plaintiff first contends that, as a result of the accident and the water entering the trailer, only 52 cartons became wet. It claims that 26 of the 162 cartons and boxes involved in this shipment were not even on the trailer, since these 26 came from Chicago as a part lot in another trailer. It thus says that only 136 cartons were on the overturned trailer and that, as it removed the freight from such trailer and segregated the wet cartons from the dry, it carefully counted them and determined that 84 were not touched by the water. As to the remaining 52 cartons, which it concedes became wet, it accepts liability, but argues its liability can go no further because when it reloaded the full shipment of 162 cartons on the trailer at Memphis (the 26-carton part lot having arrived from Chicago in the meantime) it carefully segregated, in the nose of the trailer, the 26 cartons that had not been in the accident, then loaded some other non-Government freight, then again carefully segregated the 84 cartons that had been in the accident but emerged dry, then loaded other non-Government freight, and then loaded the 52 wet cartons in the rear, segregating and protecting each section of freight by heavy cardboard sheets, which acted as separators or partitions. It says that this manner of loading would result in only the 52 cartons at the rear arriving at the Base wet, and had defendant's unloaders carefully unloaded and kept the wet cartons segregated from the dry, in the same manner in which plaintiff had loaded the trailer at Memphis, defendant would have had to perform repair services only on such 52 cartons. It contends that because of the extreme importance of care being exercised in the unloading, its general claim agent specifically arranged with defendant's responsible official, in the aforesaid telephone conversation with the Base advising of the accident, that the truck not be unloaded upon arrival at the Base until plaintiff's local Mobile representatives could come to the Base and supervise the unloading in accordance with the aforesaid loading plan, and that defendant's official specifically so agreed, but that in violation of this agreement, defendant's employees proceeded to unload the trailer prior to the arrival of plaintiff's representatives. It is further argued that defendant's employees accomplished the unload |