BNUMBER:  B-261348
DATE:  February 16, 1996
TITLE:  Atlas Van Lines--Claim for Reimbursement of Amounts
Collected by Setoff for Loss of Household Goods

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Matter of:Atlas Van Lines--Claim for Reimbursement of Amounts 
          Collected by Setoff for Loss of Household Goods

File:     B-261348

Date:   February 16, 1996

DIGEST

Although a carrier is generally liable for all damage to property in 
its control, the carrier will not be held liable if it shows that the 
damage was caused by an act of God as long as there is no intervening 
fault on the part of the carrier.  When the carrier has adequate 
notice of severe flooding and fails to move property in its control, 
that failure constitutes the intervening fault of negligence, and the 
carrier is liable for the damage which results.  The carrier has the 
burden of proving that it was not negligent.

DECISION

This is in response to an appeal of a Claims Group settlement which 
denied the claim of Atlas Van Lines for reimbursement of amounts 
collected by setoff for loss of household goods in storage during the 
Great Midwest Flood of 1993.[1]  We affirm the Claims Group's 
settlement.

At the time of the Great Midwest Flood of 1993, the household goods of 
Staff Sergeant Nick Anderson, USAF, were in storage under government 
bill of lading No. SP-011,693 at ABC Moving and Storage, an agent of 
Atlas Van Lines, in Chesterfield, Missouri.  On July 31, 1993, the 
Monarch Chesterfield levee on the Missouri River failed.  In the 
flooding that followed, Sergeant Anderson's household goods were 
destroyed.  The Air Force paid Sergeant Anderson $19,373.95, and then 
collected $3,400.00 from Atlas by offset.

The Claims Group denied Atlas's claim for reimbursement of the 
$3,400.00, on the grounds that Atlas should have taken steps to 
protect the household goods in its warehouse and was negligent for not 
doing so.  Atlas argues that its warehouse was not in the Chesterfield 
flood plain and that it had very little notice that the levee which 
protected the warehouse would fail.

Although a carrier is generally liable for all damage to property in 
its control, the carrier will not be held liable if it shows that the 
damage was caused by certain events beyond its control and there is no 
intervening fault attributable to the carrier.  Missouri Pacific R.R. 
Co. v. Elmore & Stahl, 377 U.S. 134 (1964); Mamiye Bros. v. Barber 
S.S. Lines, Inc., 241 F. Supp. 99 (1965); Richard R. Sigmon, Miller's 
Law of Freight Loss and Damage Claims, 83 (4th ed. 1974).  A flood can 
constitute an act of God sufficient to relieve a carrier if it is 
extraordinary as long as there is no intervening fault attributable to 
the carrier.  1 Am. Jur. 2d Act of God  sec.  5 (1994).

In the present situation, there is no question that the flooding which 
occurred in the Midwest in 1993 was extraordinary and was sufficient 
to constitute an act of God.  However, the Air Force determined that 
Atlas's agent had adequate notice of the approaching flood and should 
have moved Sergeant Anderson's household goods out of the path of the 
flood.[2]  Therefore, in the Air Force's view, Atlas was liable 
because of the intervening fault of negligence.  The burden is on 
Atlas to prove that it was not negligent for its failure to move the 
household goods.  See 377 U.S. at 134.

Because Atlas disputed the Air Force's characterization of its agent's 
location, we contacted Missouri officials who informed us that its 
agent is located in zone B on the flood plain map.  Zone A is the 
primary flood plain area, but flooding can occur in zone B under 
certain circumstances.  The area around the warehouse in question was 
in zone B because it was protected by a levee, but that levee was only 
expected to prevent flooding completely if the flood were less than a 
100-year flood.  From the beginning, the 1993 flood was significantly 
more severe than a 100-year flood and was eventually determined to be 
a 300-year flood.  The climax of the flood for Chesterfield was the 
structural failure of the Monarch Chesterfield levee.  While Atlas is 
correct that there was little warning that the levee would fail 
structurally, flood waters had spilled over the levee long before it 
failed.

The Air Force determined that Atlas was negligent in not moving 
Sergeant Anderson's household goods out of the path of the flood, and 
Atlas has not proved otherwise.  Severe flooding began on the upper 
reaches of the Missouri and Mississippi Rivers in June.  As the flood 
crest gradually moved downstream and as heavy rains continued, it is 
our view that at some point Atlas should have determined that the 
danger to the household goods in temporary storage in Chesterfield was 
serious enough to warrant moving the goods before the flood crest 
reached Chesterfield in late July.  The flooding moved down the rivers 
at a pace which would have allowed Atlas to move the household goods 
if it had made that determination in a timely manner, and the 
predicted severity of the flood should have prompted it to do so.  The 
fact that the structural failure of the Monarch Chesterfield levee was 
not anticipated does not absolve Atlas of liability, since flood 
waters had overtopped the levee long before the levee failed.  Failure 
to take action to move the household goods before the flood crest 
reached Chesterfield constitutes the intervening fault of negligence.  
See World Products, Inc. v. Central Freight Service, Inc., 222 F. 
Supp. 849 (D. N.J. 1963).

Since Atlas has not proved that it was not negligent, it is liable for 
the loss of the household goods up to the limit of its liability, 
which the Air Force has calculated as $3,400.00.

Accordingly, we deny Atlas's claim for reimbursement and affirm the 
Claims Group's settlement.

/s/Seymour Efros
forRobert P. Murphy
General Counsel
 
1. Z-219766-39, Mar. 16, 1995.

2. Heavy rains began early in 1993 in the northern Midwest.  Flood 
crests were reported along the upper Missouri and Mississippi Rivers 
in late June.  Severe flooding was anticipated as the flood's crest 
progressed slowly down the rivers as tributaries which were also at 
record levels flowed into the Missouri and the Mississippi.  
Chesterfield is located near the Missouri River just west of St. 
Louis.  The Missouri flows into the Mississippi near St. Louis, and 
the severe flooding in that area occurred in late July.