BNUMBER:  B-270114
DATE:  May 22, 1996
TITLE:  Carlyle Van Lines

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Matter of:Carlyle Van Lines

File:     B-270114

Date:May 22, 1996

DIGEST

A delivering carrier is responsible for the loss of, or damage to, a 
service member's household goods that were prepacked by a nontemporary 
storage contractor if the service member otherwise presents a prima 
facie case of liability against the delivering carrier.  While the 
carrier may not have a general obligation to open prepacked containers 
of household goods to examine their contents, the carrier is the last 
bailee to possess such goods prior to delivery, and, in the absence of 
evidence that the loss did not occur in its custody, it is presumed 
that the loss did occur while in its custody.

DECISION

Carlyle Van Lines requests review of our settlement (Settlement 
Certificate Z-2866671-26) of September 13, 1995, in which we denied 
its claim for a refund of amounts set off against it by the United 
States Air Force to recover for transit loss or damage to service 
member's household goods.  Two missing items remain in dispute in this 
review:  a glass lamp with flowers ($184.90) and a missing box spring 
($145.00).  We affirm our settlement.

Background

The service member shipped household articles from Germany in November 
1985, and they were placed into temporary storage.  Afterwards, the 
goods were converted to nontemporary storage (NTS), and the NTS 
contractor in Phoenix, Arizona, prepared a second inventory.  Under a 
separate bill of lading,[1] Carlyle obtained the household goods from 
the NTS contractor in June 1991, and delivered them to the service 
member in Vandenberg Air Force Base, California, on July 11, 1991.  
The descriptive inventory at origin in Germany showed item 41 as a 
glass lamp with flowers, and item 67 as a "spring".  When Carlyle 
obtained the goods in 1991, the NTS contractor provided it a second 
inventory that facially contained many of the same items as in the 
first inventory, but the numbering was different and some items were 
described only in a very general manner (e.g., some were described as 
a "dish pack" instead of describing the contents inside).

The Air Force's position is that the glass lamp with flowers, item 41 
on the original or first inventory, is item 103 described as a "dish 
pack" on the second inventory with a cross-reference to item 41.  The 
Air Force also contends that item 67 on the first inventory is item 88 
described on the second inventory as "part of bed - wood frame" which 
cross-references item 67.  According to the Air Force, Carlyle picked 
up items 103 and 88 as listed on the second inventory when it obtained 
the shipment.

Carlyle does not deny it picked up items 103 and 88 as listed on the 
second inventory, but contends that it did not obtain either the glass 
lamp with flowers or the box spring, and that the shipper failed to 
show tender to it of these items.  Preliminarily, Carlyle says that it 
requested and never received a copy of the first inventory, and, in 
any event, it contends that it is responsible only for what is on the 
second inventory.  It points out that the member referred to the glass 
lamp with flowers on the Notice of Loss or Damage, DD Form 1840-R, as 
item 40, and then as item 48 in her claim.  Carlyle suggests that it 
was not under any obligation to open a sealed dish pack 
cross-referenced to item 41 to determine what was inside, and that 
when a sealed container is tendered by a NTS contractor, acting as the 
shipper's agent, the burden is on the shipper to show what was in the 
sealed container.  Concerning the bed, Carlyle makes the same general 
arguments and points out that "part of bed - wood frame" is not a box 
spring.

Discussion

In McNamara-Lunz Vans and Warehouses, Inc., 57 Comp. Gen. 415 (1978), 
we considered a similar relationship between a NTS contractor and a 
delivering carrier.  Some of the losses involved articles packed by 
the NTS contractor, and the carrier advanced the argument that it was 
under no obligation to unpack prepackaged containers to determine 
whether anything was missing or damaged.  We agreed that there was no 
general obligation to unpack each and every prepackaged container, 
especially those in apparent good order, but we held that the 
delivering carrier was still liable for transit loss or damage when 
the shipper otherwise established a prima facie case of carrier 
liability.  Specifically, we stated that once a shipper has made a 
prima facie case of liability for loss or damage in transit by showing 
a failure to deliver at destination the same quantity or quality of 
goods as received at origin the burden is placed upon the carrier or 
other bailee to show either that the damage or loss did not occur 
while in its custody, or that the loss or damage occurred as a result 
of one of the causes for which the carrier is not liable.  See 
Missouri Pacific R.R. v. Elmore & Stahl, 377 U.S. 134 (1964).  And 
when the goods pass through the custody of several bailees it is a 
presumption of the common law that the loss or damage occurred in the 
hands of the last bailee.  To establish such a case, the shipper must 
prove that he tendered an item for transportation, that it was not 
delivered or that it was delivered in a more damaged condition, and 
the amount of damages.[2]

The Air Force reasonably found that the dish pack (item 103) on the 
second inventory which cross-references item 41, is the missing glass 
lamp with flowers.  The origin inventory notes only one glass lamp 
with flowers, and no glass lamp with flowers was delivered.  While the 
NTS contractor should have described this item more specifically, the 
description "dish pack" is not inconsistent with the glass lamp 
because a glass lamp would have been packed in such a container.  The 
shipper should have notified the carrier and filed her claim using the 
correct item number, but she did notify the carrier about the loss of, 
and claimed, only the one glass lamp with flowers.  The second 
inventory, prepared before any dispute arose in this matter, 
specifically referenced item 41.  While we hold Carlyle liable only 
for the material on the second inventory, the cross-references on the 
second inventory invited comparison to the document that it 
cross-referenced; these cross-references cannot be ignored in the 
carrier's claim investigation.  Finally, we believe the two 
inventories are generally consistent except as noted above, and 
therefore, the cross-references to the first inventory offer 
substantial evidence explaining what was contained in containers 
described only generally in the second inventory.  Carlyle offered no 
evidence showing that the loss did not occur in its custody.

On both inventories, there are only two large-area components related 
to a bed.  Item 55 on the original inventory, an item described as a 
"mattress," appears to be the item described as a "Q MATT CTN," item 
109 on the second inventory.  The other such component is item 67 
described as "spring" on the first inventory, and item 88 on the 
second inventory which is described as "part of bed - wood frame" and 
which cross-references item 67.  Again, while the NTS contractor 
should have been more precise, the Air Force reasonably concluded that 
item 67 on the first inventory was the "part of bed - wood frame" on 
the second inventory.  The two inventories are generally consistent, 
and as is the case with the glass lamp, the cross-references to the 
first inventory offer substantial evidence explaining the nature of 
the material in the second inventory.  Again, Carlyle offered no 
evidence showing that the loss did not occur in its custody.

We do agree with the carrier that the Air Force should have provided 
Carlyle with a copy of the origin inventory as the cross-reference, 
but the failure to have done so does not change the result here.  We 
have provided Carlyle with a copy of the origin inventory.  Carlyle 
has the right to request reconsideration within a reasonable time, if 
it so chooses.  We affirm the Air Force offset and our prior 
settlement.

/s/Lowell Dodge
for Robert P. Murphy
General Counsel

1. Personal Property Government Bill of Lading TP-346,854 (Tricia 
Griggs).

2. In support of our decision in McNamara-Lunz, we cited two 
established judicial decisions involving successive transportation 
custodians of prepacked goods:  General Electric Co. v. Pennsylvania 
R.R., 160 F. Supp. 186, 188 (W.D. Pa. 1958) and Julius Klugman's Sons, 
Inc. v. Oceanic Steam Nav. Co., 42 F.2d 461 (S.D.N.Y. 1930).