B-180439, MAR 23, 1976

B-180439, MAR 23, 1976

COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE MOVING HOUSEHOLD GOODS INCIDENT TO RELEASE FROM ACTIVE DUTY MUST BEAR ALL COSTS ATTRIBUTABLE TO EXCESS WEIGHT AND DISTANCE, UNAUTHORIZED ARTICLES, ADDITIONAL VALUATION, AND SPECIAL SERVICES. NO DECISION IS REACHED AS TO WHETHER FENCE POSTS ARE ALLOWABLE AS ITEMS OF HOUSEHOLD GOODS IN THIS CASE BECAUSE, ON THE BASIS OF ALL THE EVIDENCE, THE WEIGHT OF THE FENCE WAS LESS THAN THE GROSS EXCESS WEIGHT WHICH THE INDIVIDUAL WAS OTHERWISE REQUIRED TO PAY.

DR. STEVEN R. KAFRISSEN:

THIS ACTION IS IN RESPONSE TO CORRESPONDENCE FROM JEROME L. COHEN, ESQ., WRITTEN ON BEHALF OF DR. STEVEN R. KAFRISSEN, A COMMISSIONED OFFICER OF THE UNITED STATES PUBLIC HEALTH SERVICE, WHICH REQUESTS RECONSIDERATION OF OUR DECISION OF SEPTEMBER 13, 1974, B-180439, IN WHICH IT WAS DETERMINED THAT DR. KAFRISSEN WAS LIABLE FOR EXCESS COSTS INCURRED IN MOVING HIS HOUSEHOLD GOODS UPON HIS RELEASE FROM ACTIVE DUTY IN THE PUBLIC HEALTH SERVICE.

AT THE TIME OF HIS INACTIVATION, JUNE 30, 1973, DR. KAFRISSEN HELD THE TEMPORARY GRADE OF 0-4 SURGEON AND THE PERMANENT GRADE OF 0-3 SENIOR ASSISTANT SURGEON, TO WHICH HE REVERTED UPON RELEASE. PURSUANT TO SUBSECTION 406(B) OF TITLE 37, U.S.C. AND PARAGRAPHS M8003, M8004, AND M8259 OF VOLUME 1, JOINT TRAVEL REGULATIONS, HE WAS ENTITLED TO MOVE, AT GOVERNMENT EXPENSE, A NET WEIGHT OF 11,000 POUNDS OF PERSONAL PROPERLY CLASSIFIABLE AS HOUSEHOLD GOODS, PLUS PROFESSIONAL BOOKS, THE DISTANCE BETWEEN HIS PERMANENT STATION, ROCKVILLE, MARYLAND, AND HIS HOME OF RECORD, PHILADELPHIA, PENNSYLVANIA, A DISTANCE OF 133 MILES.

THE FILE INDICATES THAT IN JULY 1973, DR. KAFRISSEN SHIPPED BY GOVERNMENT BILL OF LADING F-6249673, A GROSS WEIGHT OF 18,760 POUNDS OF MATERIAL FROM POTOMAC, MARYLAND, TO MOUNTAIN TOP, PENNSYLVANIA, A DISTANCE OF 211 MILES, AT A COST OF $2,648.19. THE NET WEIGHT OF THE SHIPMENT WAS NOT KNOWN. ACCORDING TO THE CARRIER, AMONG THE ITEMS TRANSPORTED WERE 2,250 POUNDS OF PROFESSIONAL BOOKS, A DISMANTLED "RANCH TYPE" YARD FENCE ESTIMATED BY THE CARRIER TO WEIGH 7,200 POUNDS, AND BRICKS USED AS COMPONENTS OF BOOKCASES, CARDBOARD, PLYWOOD AND CANNED FOODS OF UNDETERMINED WEIGHT. THE SHIPMENT APPARENTLY ARRIVED AT ITS DESTINATION ON THE DATE SPECIFIED BY DR. KAFRISSEN, JULY 23, 1973, BUT ACCORDING TO THE CARRIER, HE OR HIS WIFE WOULD NOT PERMIT IT TO BE UNLOADED UNTIL SOMETIME THE NEXT DAY BECAUSE OF SOME DELAY IN THE SETTLEMENT FOR THE HOUSE THEY WERE PURCHASING. ALSO ACCORDING TO THE CARRIER, DR. KAFRISSEN REQUIRED MOST OF THE FURNITURE TO BE REARRANGED AFTER IT HAD BEEN PLACED IN THE HOUSE.

THE RECORD SHOWS THAT PRIOR TO SHIPMENT, THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE COLLECTED $135.75 FROM DR. KAFRISSEN FOR ESTIMATED EXCESS COSTS. THE CARRIER THEN BILLED HEW $2,648.19 FOR THE MOVE, WHICH INCLUDED $133.45 ADDITIONAL VALUATION CHARGES, AS WELL AS CHARGES FOR NORMAL ACCESSORIAL SERVICES, AND ANOTHER $303.00 FOR VAN AND LABOR TIME LOST BECAUSE OF THE DELAY IN UNLOADING AND FOR REARRANGING THE FURNITURE IN THE HOUSE.

IN DECISION B-180439, SEPTEMBER 13, 1974, IT WAS HELD:

(1) THAT WHILE THE CANNED FOODS AND THE BRICKS USED AS PARTS OF BOOKCASES MIGHT BE CLASSIFIED AS HOUSEHOLD GOODS, THE FENCE, CARDBOARD, AND PLYWOOD COULD NOT AND THAT ALL COSTS ATTRIBUTABLE TO THE TRANSPORTATION OF THESE UNAUTHORIZED ITEMS MUST BE BORNE BY THE INDIVIDUAL, AS PROVIDED BY PARAGRAPH M8007 OF THE JTR'S;

(2) THAT COSTS ATTRIBUTABLE TO ANY WEIGHT IN EXCESS OF THE INDIVIDUAL'S AUTHORIZED ALLOWANCE, IN ADDITION TO THE WEIGHT OF THE UNAUTHORIZED ITEMS, AND ALL COSTS ATTRIBUTABLE TO MOVING THE SHIPMENT FURTHER THAN THE DISTANCE AUTHORIZED WERE CHARGEABLE TO HIM AS FURTHER PROVIDED BY PARAGRAPH M8007;

(3) THAT THE ADDITIONAL EXPENSE INCURRED BECAUSE OF THE DELAY IN UNLOADING AND REARRANGING FURNITURE MUST BE BORNE BY THE INDIVIDUAL AS PROVIDED BY PARAGRAPH M8009; AND

(4) THAT REIMBURSEMENT FOR RENT OF A TRAILER AND HITCH WAS NOT AUTHORIZED.

THEREUPON, HEW DEDUCTED THE ESTIMATED WEIGHT OF THE FENCE, 7,200 POUNDS, FROM THE GROSS WEIGHT OF THE SHIPMENT, 18,760 POUNDS, ALLOWING DR. KAFRISSEN 11,560 POUNDS GROSS WEIGHT WHICH INCLUDED PACKING AND PROFESSIONAL BOOKS, AND COMPUTED THE EXCESS COSTS CHARGEABLE TO HIM AS FOLLOWS:

LINE HAUL CARRIER'S BILL ALLOWED BY HEW CHARGEABLE TO 18,760#, 211 MILES 11,560#, 122 MILES DR. KAFRISSEN $ 844.20 $ 491.30 $ 352.90 SHIPMENT CHARGE 39.00 32.25 6.75 VALUATION 133.45 NONE 133.45 ADDITIONAL TRANSPORTATION 93.80 55.00 38.80 APPLIANCE SERVICE 10.00 10.00 NONE PACKING 608.50 608.50 NONE STORAGE 159.46 93.80 65.96 HANDLING 234.50 137.5097.00 CARTAGE 525.28 308.00 217.28

TOTAL $2,648.19 $1,736.05 $ 912.14

SPECIAL ACCESSORIAL SERVICES 303.00 NONE 303.00

TOTAL $2,951.00 $1,736.05 $1,215.14

FROM THE TOTAL DETERMINED TO BE CHARGEABLE TO DR. KAFRISSEN, $1,215.14, THE AGENCY DEDUCTED THE $135.75 PREVIOUSLY COLLECTED FROM HIM AND $8.16 ALLOWED HIM FOR TRAVEL OF 136 MILES AT $.06 PER MILE BY PRIVATELY OWNED CONVEYANCE FROM WASHINGTON, D.C. TO PHILADELPHIA, PENNSYLVANIA, AND BILLED HIM FOR THE DIFFERENCE, $1,071.23.

DR. KAFRISSEN HAS DECLINED TO PAY THIS BILL AND, THROUGH HIS ATTORNEY, JEROME L. COHEN, HAS CHALLENGED, IN PART, THE PROPRIETY OF THE COMPUTATION OF EXCESS COSTS, THE EXCLUSION OF CERTAIN ITEMS AS HOUSEHOLD GOODS AND THEIR WEIGHTS. AS TO THE ARTICLES IN QUESTION, DR. KAFRISSEN CONTENDS THAT THE FENCE WAS, AS FAR AS HE IS CONCERNED, NOT A PART OF THE REALTY, BUT RATHER, A PART OF HIS PERSONAL PROPERTY AND DID NOT COMPRISE 20 FENCE POSTS OF 150 POUNDS EACH AND 60 CROSS BARS OF 70 POUNDS EACH AS STATED BY THE CARRIER. INSTEAD, HE CONTENDS THAT THERE WERE ONLY 4 OR 5 POSTS AND 12 TO 15 CROSS BARS, EACH OF MUCH LESSER WEIGHT. HE ALSO CONTENDS THAT THE ONLY CARDBOARD AND PLYWOOD ITEMS WHICH WERE MOVED BY THE CARRIER WERE A TRAIN BOARD AND SOME BOOK SHELVES. WITH REGARD TO ACCESSORIAL COSTS, HE DISPUTES THE CARRIER'S VERSION OF THE CIRCUMSTANCES SURROUNDING THE DELAY IN UNLOADING AND THE REARRANGING OF ITEMS IN THE HOUSE. IN ADDITION, HE CONTENDS THAT HE SHOULD BE REIMBURSED $54.81 FOR THE RENT OF A TRAILER AND HITCH USED IN THE MOVE, ALLEGING THAT AN ADMINISTRATIVE OFFICIAL ASSURED HIM OF PAYMENT FROM SOME SPECIAL FUND.

UNDER THE PROVISIONS OF 37 U.S.C. 406(B) AND THE PERTINENT PARAGRAPHS OF THE JTR'S, THE MAXIMUM POTENTIAL LIABILITY OF THE GOVERNMENT AND THE MAXIMUM CREDIT TO WHICH DR. KAFRISSEN COULD BE ENTITLED IS THE COST OF SHIPPING (INCLUDING THE COST OF PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) A NET WEIGHT OF 11,000 POUNDS OF PERSONAL PROPERTY PROPERLY CLASSIFIABLE AS HOUSEHOLD EFFECTS (PARAGRAPH M8003 OF THE JTR'S), OR A CONSTRUCTED GROSS WEIGHT OF 12,265 POUNDS IN UNCRATED CONDITION (PARAGRAPH M8002-1 OF THE JTR'S), PLUS 2,250 POUNDS OF PROFESSIONAL BOOKS (PARAGRAPH M8004 OF THE JTR'S), FOR A TOTAL GROSS WEIGHT OF 14,515 POUNDS, FOR A DISTANCE OF 133 MILES, THE SHORT LINE MILEAGE BETWEEN ROCKVILLE, MARYLAND, HIS PERMANENT STATION, AND PHILADELPHIA, PENNSYLVANIA, HIS HOME OF RECORD (PARAGRAPH M8259 OF THE JTR'S). THUS, IF THE ENTIRE LOAD SHIPPED COULD BE PROPERLY CLASSIFIED AS HOUSEHOLD EFFECTS, THEN THE SHIPMENT OF 18,760 POUNDS GROSS WEIGHT FOR A DISTANCE OF 211 MILES, EXCEEDS THE MAXIMUM LIMITS AUTHORIZED BY 4,245 POUNDS AND 78 MILES.

IN OTHER WORDS, DR. KAFRISSEN MUST BEAR ALL COSTS OF (1) SHIPPING OTHERWISE PROPER HOUSEHOLD GOODS WHICH ARE IN EXCESS OF THE MAXIMUM WEIGHT ALLOWANCE AUTHORIZED FOR SUCH GOODS (2) THE COSTS ATTRIBUTABLE TO THE EXTRA DISTANCE FOR ALL GOODS SHIPPED (3) COSTS OF ADDITIONAL VALUATION (4) COSTS OF SERVICES ATTENDANT TO THE EXCESSIVE WEIGHT AND EXTRA DISTANCE AND (5) ANY SPECIAL SERVICES PERFORMED FOR WHICH ADDITIONAL EXPENSES WERE INCURRED, SUCH AS REQUESTED DELAYS IN UNLOADING AND REARRANGING OF FURNITURE.

IN ADDITION TO THE FOREGOING, UNDER THE PROVISIONS OF SUBPARAGRAPH M8007- 1 OF THE JTR'S, THE COST OF TRANSPORTING UNAUTHORIZED ARTICLES WOULD ALSO HAVE TO BE BORNE BY DR. KAFRISSEN. IN THIS REGARD, DR. KAFRISSEN CONTENDS THAT THE FENCE POSTS AND RAILS WHICH HE HAD SHIPPED WERE HIS OWN PERSONAL PROPERTY AND HE DISPUTES THE CARRIER'S ESTIMATION OF WEIGHT (7200 POUNDS).

WHILE A FENCE SUCH AS DR. KAFRISSEN DESCRIBES MIGHT BE CONSIDERED PERSONAL PROPERTY, IT IS NOT CLEAR THAT THIS ITEM WOULD BE PROPERLY CLASSIFIABLE AS HOUSEHOLD GOODS AS THAT TERM IS USED IN THE JOINT TRAVEL REGULATIONS. HOWEVER, IN ANY SITUATION WHERE AN INDIVIDUAL SHIPS GOODS WHICH ARE IN EXCESS OF HIS AUTHORIZED WEIGHT ALLOWANCE WHERE THE WEIGHT OF DISPUTED ITEMS IS NOT KNOWN, BUT THE WEIGHT OF SUCH DISPUTED ITEMS CAN BE REASONABLY ESTABLISHED AS NOT EXCEEDING THAT EXCESS WEIGHT, THE ISSUE AS TO WHETHER SUCH ITEMS ARE AUTHORIZED OR UNAUTHORIZED BECOMES IMMATERIAL.

IN THE PRESENT SITUATION, WHEN DR. KAFRISSEN'S INDEBTEDNESS DUE TO THE EXCESSIVE WEIGHT AND DISTANCE WAS ADMINISTRATIVELY ESTABLISHED, THE CARRIER'S ESTIMATION OF BOTH NUMBER AND WEIGHT OF THE FENCE POSTS AND RAILS WAS USED. WE BELIEVE THAT SUCH ESTIMATION OF WEIGHT (POSTS - 150 POUNDS AND RAILS - 70 POUNDS) IS EXCESSIVE AND THAT EVEN IF THE ESTIMATION AS TO THE NUMBER OF COMPONENTS (20 POSTS AND 60 RAILS) IS CORRECT THE MAXIMUM WEIGHT OF THE FENCE DID NOT EXCEED THE GROSS EXCESS WEIGHT OTHERWISE CHARGEABLE TO DR. KAFRISSEN.

WITH REGARD TO THE MATTER OF THE $303 CHARGE FOR ADDITIONAL ACCESSORIAL SERVICE, WE FIND NO BASIS FOR DISPUTING THE CARRIER'S REPORT ON THE MATTER. IT IS OUR VIEW THAT THE SERVICES PERFORMED DO NOT QUALIFY AS NORMAL ACCESSORIAL SERVICES AND THAT DR. KAFRISSEN MUST BEAR THE COSTS THEREOF.

AS TO THE COST OF RENTAL OF A TRAILER AND HITCH, WE KNOW OF NO AUTHORITY FOR REIMBURSEMENT TO AN INDIVIDUAL BY THE GOVERNMENT OF SUCH RENTAL COSTS.

ACCORDINGLY, OUR DECISION B-180439, SEPTEMBER 13, 1974, IN DR. KAFRISSEN'S CASE IS MODIFIED TO THE EXTENT THAT HE IS TO BE ALLOWED A TOTAL GROSS WEIGHT OF 14,515 POUNDS FOR A DISTANCE OF 133 MILES, PLUS THE NORMAL ADDITIONAL CHARGES APPROPRIATE FOR SUCH INCREASED WEIGHT AND DISTANCE AUTHORIZED.