B-147921, JUN. 5, 1962

B-147921, JUN. 5, 1962

TO MR. LELAND W. SMITH:

YOUR LETTER OF FEBRUARY 24, 1962, REQUESTS THAT WE RECONSIDER OUR DECISION OF FEBRUARY 19, 1962, B-147921, TO YOU, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $253.61, THE AMOUNT WHICH WAS DEDUCTED FROM YOUR COMPENSATION TO LIQUIDATE YOUR INDEBTEDNESS FOR THE COST OF THE EXCESS WEIGHT OF THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM ALASKA TO PORT ANGELES, WASHINGTON.

YOU SAY THAT BECAUSE THE CARRIER FAILED TO UNPACK YOUR HOUSEHOLD GOODS AND PLACE THEM IN YOUR RESIDENCE THE GOVERNMENT SHOULD BE REIMBURSED BY THE CARRIER TO THE EXTENT TO FURNISH THESE ACCESSORIAL SERVICES AND THAT THE AMOUNT SO DEDUCTED SHOULD BE APPLIED AGAINST YOUR INDEBTEDNESS TO THE GOVERNMENT FOR THE COST OF THE EXCESS WEIGHT OF YOUR SHIPMENT.

THE APPLICABLE HOUSEHOLD GOODS CARRIERS BUREAU MILITARY TARIFF, I.C.C. NO. 8, APPLICABLE TO YOUR SHIPMENT PROVIDES FOR ADDITIONAL SERVICES IN SECTION 11-A, ITEM 205, AS FOLLOWS:

"PACKING AND UNPACKING:

RATES INCLUDE PACKING, THE USE OF PACKING CONTAINERS AND MATERIALS FROM ORIGIN TO DESTINATION AND UNPACKING.'

THE RATES PAID BY THE GOVERNMENT INCLUDED THE FOREGOING AND THEREFORE, THE CARRIER SHOULD HAVE UNPACKED YOUR GOODS AND EFFECTS AND PLACED THEM IN YOUR RESIDENCE IN THE ABSENCE OF DIRECTIONS FROM YOU TO THE CONTRARY.

THERE IS NO PROVISION IN THE TARIFF TO REDUCE ANY RATE OF ACCESSORIAL CHARGE PROVIDED IN THE TARIFF BECAUSE OF THE CARRIER'S FAILURE TO PERFORM ANY OF THE SERVICES DESCRIBED THEREIN. ALSO, THERE IS NO WAY OF ARRIVING AT A VALUE FOR THE ACCESSORIAL SERVICES ACTUALLY PERFORMED, IN RELATION TO THE RATES, WHICH PROVIDE THAT SUCH SERVICES WILL BE FULLY PERFORMED.

MILITARY TRAFFIC MANAGEMENT REGULATION, APPLICABLE TO THE DEPARTMENTS OF THE ARMY AND AIR FORCE AND MARINE CORPS, PUBLISHED AS AIR FORCE MANUAL 75- 2, SPECIFIES THE UNLOADING AND UNPACKING SERVICES TO BE RENDERED BY THE CARRIERS AT DESTINATION UNLESS SUCH SERVICES ARE SPECIFICALLY WAIVED BY THE OWNER IN WRITING.

IN VIEW OF THE PROVISIONS OF THE APPLICABLE TARIFF WE KNOW OF NO BASIS WHEREBY RECOVERY CAN BE MADE FROM THE CARRIER FOR THE NONPERFORMANCE OF THESE ACCESSORIAL SERVICES. THE ONLY REMEDY FOR THE CARRIER'S FAILURE TO PERFORM THE REQUIRED SERVICES IS PROVIDED IN SECTION 217015A., PAGE 217- 24, OF THE ABOVE REGULATION, WHICH READS IN PART AS FOLLOWS:

"THE LOCAL TRANSPORTATION OFFICE OR OTHER APPROPRIATE OFFICE SHALL SUSPEND THE USE OF OTHERWISE QUALIFIED CARRIERS FOR APPROPRIATE PERIODS OF TIME, WHEN THOSE CARRIERS ON THEIR AGENTS FAIL TO PROVIDE HIGH QUALITY SERVICE OR COMMIT UNETHICAL ACTS. * * *"

THE FAILURE TO PERFORM UNPACKING AND PLACEMENT SERVICE AT DESTINATION IS LISTED ON PAGE 217-26 AS A VIOLATION OF THE REGULATION.

THE FURTHER FACTS PRESENTED IN YOUR LETTER OF FEBRUARY 24, 1962, MAINLY ARE REPETITIONS OF FACTS PREVIOUSLY OF RECORD HERE AND THEY WERE THOROUGHLY CONSIDERED IN OUR DECISION OF FEBRUARY 19, 1962, B-147921.

ALTHOUGH WE HAVE AGAIN REVIEWED THE REMAINING ELEMENTS OF YOUR CLAIM, WE FIND NO PROPER BASIS FOR CHANGING THE CONCLUSION HERETOFORE REACHED IN THE MATTER; THEREFORE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN OUR DECISION.