BNUMBER:  B-270321
DATE:  March 27, 1996
TITLE:  Resource Protection

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Matter of:Resource Protection

File:     B-270321

Date:March 27, 1996

DIGEST

1.  Where proper notice of later-discovered loss or damage to a 
military member's  household goods shipment is provided to the carrier 
within the prescribed time limit, as required by the Military-Industry 
Memorandum of Understanding (MOU), the presumption of correct delivery 
is overcome and the burden of establishing that it is not liable for 
the loss or damage falls on the carrier.  The fact that the loss or 
damage was not noted by the member at delivery, although the carrier 
performed the unpacking while the member or spouse was present in the 
residence, does not relieve the carrier from liability since it is 
unreasonable to expect the member to note every item of loss or damage 
during the unpacking, and the MOU does not preclude claiming 
later-discovered loss or damage in these circumstances.

2.  Where agency has assessed liability for loss or damage to 
household goods items against the carrier based on owner's claims, 
repair estimates, and an inspector's report, the carrier's assertion 
that the loss or damage was preexisting, without substantial 
supporting evidence, is not sufficient to overcome the agency's 
determination.

DECISION

Resource Protection, on behalf of Carlyle Van Lines, has appealed 
Claims Settlement No. Z-2866671(30) which denied Carlyle's request for 
a refund of moneys the Air Force offset for loss and damage to a 
shipment of an Air Force member's household goods.  As explained 
below, we sustain the denial of the claim.

The household goods were picked up at Alexandria, Louisiana, on March 
27, 1992, and delivered to Riverside, California, on April 20, 1992.  
Unpacking service was not waived in writing by the member, and 
apparently the carrier performed this service.  At the time of 
delivery, damage to several items was noted on the DD Form 1840.  
Twenty-three days after delivery, DD Form 1840R was dispatched to the 
carrier noting a number of additional items of loss or damage.  It is 
the carrier's liability for these later-listed items that Resource 
Protection disputes.

Resource Protection asserts that when the carrier performs the 
unpacking service, the military member personally views each item that 
is unpacked and directs the specific place where it is to be placed, 
and thus both the shipper and the unpacker know at that time whether 
there has been any damage.  Therefore, Resource Protection argues, it 
is incumbent upon the shipper and unpacker to list any damage at the 
time of unpacking, and thus the carrier cannot be held liable for 
later-reported loss or damage in cases where the carrier performs the 
unpacking.  

In support of its position, Resource Protection refers to paragraph 
A(1) of the Military-Industry Memorandum of Understanding regarding 
loss or damage to household goods.  This paragraph states in part, 
"For later discovered loss or damage, including that involving packed 
items for which unpacking has been waived in writing, written 
documentation on DD Form 1840-1 [now DD Form 1840R] advising the 
carrier of later discovered loss or damage, dispatched not later than 
75 days following delivery, shall be accepted by the carrier as 
overcoming the presumption of the correctness of the delivery 
receipt."  Resource Protection interprets the specific reference to 
"packed items for which unpacking has been waived" as being 
unnecessary except if the paragraph was meant to exclude items 
unpacked in the presence of the member.

We disagree with these arguments.  First, while we do not dispute that 
the member or his or her spouse is usually in the residence while the 
carrier unpacks, and directs where the items are to be placed, often 
the unpacking is performed by more than one person and in more than 
one location in the residence simultaneously, and the unpacking is, at 
times, accompanied by a good deal of litter and confusion.  In 
addition, some loss or damage is not readily apparent, such as chips 
in glass or ceramic articles and partially missing contents of a 
liquor bottle.  In these circumstances, as a practical matter, we can 
understand why the member or spouse may not note all missing or 
damaged items at the time of unpacking, and we do not think it 
reasonable to expect them to do so or lose their right to compensation 
for loss or damage.  

In addition, we do not accept Resource Protection's interpretation of 
the quoted provision of the Memorandum of Understanding.  The sentence 
in question uses the term "including" to specifically refer to packed 
items for which unpacking has been waived, and in our view this was 
for the purpose of making it clear that claims also may be filed for 
later-discovered loss or damage to those items even though the carrier 
does not perform the unpacking and its agent is not present when the 
unpacking is performed.  This language is inclusionary rather than 
exclusionary.  If it was intended to exclude claims for 
later-discovered loss or damage where the carrier performed the 
unpacking, language so-stating should have been used.  In similar 
circumstances, we have interpreted the Memorandum of Understanding as 
providing that a proper notice of later-discovered loss or damage 
overcomes the presumption of the correctness of the delivery receipt 
even though the member did not identify the loss or damage at time of 
delivery.  See Suddath Van Lines, B-246907, Sept. 28, 1992; and 
National Forwarding Co., Inc., B-238982, June 22, 1990.

Resource Protection also disputes the Air Force's assessment of 
liability against Carlyle for three items of loss or damage which 
Resource Protection states is not supported by the record.  First is a 
claim for broken glass on a microwave oven. The carrier argues that 
this glass was missing at time of tender, but the Air Force states 
that its inspection showed that the claim was for cracked glass around 
the control panel.  Second is a claim for scratches on two end tables 
which the carrier contends have not been shown to be different from 
preexisting scratches noted at time of tender, but which the member 
claims are additional new scratches incurred in transit.  And third is 
a claim for springs missing from a play horse.  The carrier states 
that the inventory shows these springs as missing at time of tender, 
but the Air Force interprets the inventory to show that "caps" were 
missing from this item, not springs.  In matters of this nature, we 
will not question the agency's assessment of damages unless clear 
evidence is presented to show that the agency acted  unreasonably.  
American Van Services, Inc., B-249833, Jan. 14, 1993.  Here the Air 
Force had the items in question inspected and relied upon the 
inspection report, damage estimates, and other documentation in the 
file in assessing liability.  It has provided explanations of its 
findings in its July 15, 1994, report to our Claims Group, a copy of 
which was furnished to the carrier.  We have reviewed these documents, 
and find that the Air Force's determinations appear reasonable, and 
Resource Protection has not presented any refuting evidence.  
Therefore, there is insufficient basis for us to overturn the Air 
Force's determination of liability.

In view of the above, we affirm the prior settlement.

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