B-188911, JUN 12, 1978

B-188911, JUN 12, 1978

DIGEST: 1. COMMON CARRIERS ARE REQUIRED BY LAW TO BILL CHARGES ON THE ACTUAL WEIGHT TRANSPORTED AT THE RATES PUBLISHED IN THEIR TARIFFS, AND WEIGHT LIMITATIONS INSERTED ON BILLS OF LADING ARE WITHOUT LEGAL EFFECT. 2. EMPLOYEES ARE RESPONSIBLE TO AGENCY FOR TRANSPORTATION CHARGES ON UNAUTHORIZED WEIGHT OF ACCOMPANIED BAGGAGE.

PAYMENT FOR EXCESS WEIGHT OF UNACCOMPANIED BAGGAGE TRANSPORTED BY COMMON CARRIERS:

THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), DEPARTMENT OF STATE, REQUESTS THE COMPTROLLER GENERAL TO REVIEW AN EARLIER OPINION ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION RELATING TO THE METHOD OF PAYMENT FOR THE EXCESS WEIGHT OF UNACCOMPANIED BAGGAGE AND TO GRANT RELIEF TO WILLIAM B. NANCE FOR A DEBT OF $344 REPRESENTING THE COST OF TRANSPORTING UNAUTHORIZED UNACCOMPANIED BAGGAGE.

NEPTUNE WORLD WIDE MOVERS, INC. (NEPTUNE), WAS AUTHORIZED AND INSTRUCTED TO PACK FOR EXPORT BY AIR UP TO 450 POUNDS (GROSS WEIGHT) OF THE UNACCOMPANIED BAGGAGE OF MR. NANCE FOR AIR FREIGHT SHIPMENT FROM DURHAM, NORTH CAROLINA, TO ANKARA, TURKEY. GOVERNMENT BILL OF LADING A 0959491, WHICH WAS ISSUED TO COVER THE AIR FREIGHT SHIPMENT, CONTAINED A NOTATION READING "SHIPMENT OF UNACCOMPANIED BAGGAGE AIR FREIGHT NTE (NOT TO EXCEED) 450 LBS. GROSS WEIGHT AUTHORIZED."

NEPTUNE CRATED THE UNACCOMPANIED BAGGAGE, WHICH HAD A NET WEIGHT OF 460 POUNDS AND TENDERED IT TO A MOTOR COMMON CARRIER WHICH TRANSPORTED THE SHIPMENT TO NEW YORK WHERE IT WAS DELIVERED TO PAN AMERICAN WORLD AIRWAYS.

THE AIR WAYBILL ISSUED BY PAN AMERICAN CONTAINS REFERENCE TO THE NOTATION ON THE GBL AND SHOWS THAT THE GROSS WEIGHT OF THE SHIPMENT WAS 850 POUNDS AND THE CARRIER HAS BEEN PAID FOR TRANSPORTING THAT WEIGHT. THE BILLING BY NEPTUNE WAS PREMISED ON A NET WEIGHT OF 460 POUNDS SUBJECT TO A MINIMUM WEIGHT OF 500 POUNDS.

THE RECORD SHOWS THAT DISCUSSIONS TOOK PLACE BETWEEN NEPTUNE AND MR. NANCE AS TO THE ARTICLES TO BE INCLUDED IN THE UNACCOMPANIED BAGGAGE AND THE METHOD TO BE USED IN PACKING THE ARTICLES, WHICH INCLUDED ONE FOOTLOCKER AND TWO MEDIUM SIZED TRUNKS AND OTHER PACKAGED ARTICLES. ALL OF THE ARTICLES, INCLUDING THE FOOTLOCKER AND THE TWO TRUNKS, ARRIVED IN ANKARA IN ONE LARGE HEAVY WOODEN SHIPPING CONTAINER WHICH WEIGHED APPROXIMATELY 400 POUNDS. MR. NANCE STATES THAT THE USE OF ONE CONTAINER WAS DISCUSSED AT ORIGIN AND THAT HE WAS ASSURED THAT THE HEAVY WOODEN CONTAINER WOULD NOT BE USED. NEPTUNE ASSERTS THAT A HEAVY OUTER CONTAINER WAS AUTHORIZED BY MR. NANCE.

THE PLACEMENT OF WEIGHT LIMITATIONS ON BILLS OF LADING CANNOT LEGALLY LIMIT THE TRANSPORTATION CHARGES TO BE PAID ON THE ACTUAL WEIGHT SHIPPED. THE BILL OF LADING SERVES AS A RECEIPT FOR THE GOODS AND AS A CONTRACT FOR THE CARRIAGE. AIR CARRIERS ARE REQUIRED TO COLLECT TRANSPORTATION CHARGES ON THE ACTUAL WEIGHT TRANSPORTED AT THE RATE PUBLISHED IN THEIR TARIFFS. 49 U.S.C. 1373 (SUPP. V, 1975). SURFACE CARRIERS ARE SUBJECT TO SIMILAR PROVISIONS. SEE 49 U.S.C. 6(7), 317(B), 906(E) AND 1005(C) (SUPP. V, 1975). AND THE COURTS HAVE HELD THAT DIRECTIONS TO THE CARRIER TO COLLECT ALL OR PART OF THE FREIGHT CHARGES FROM A PARTY OTHER THAN THE SHIPPER DOES NOT RELIEVE THE SHIPPER FROM LIABILITY FOR THE FREIGHT CHARGES. SEE DARE V. NEW YORK CENTRAL R.R., 20 F.2D 379 (2ND CIR. 1927); NEW YORK, N.H. & H.R.R. V. CALIFORNIA FRUIT GROWERS EXCHANGE, 5 A.2D 353 (CONN. 1939), CERT. DEN. 308 U.S. 567.

WHILE THERE IS NO DIRECT PROHIBITION WHICH PREVENTS CARRIERS FROM COMMUNICATING WITH SHIPPERS OR THE EMPLOYING AGENCIES, AFTER RECEIPT OF THE BAGGAGE, TO ASCERTAIN WHETHER OR NOT ANY EXCESS WEIGHT SHOULD BE TRANSPORTED, WE DO NOT BELIEVE THAT AS A GENERAL PRACTICE CARRIERS WOULD BE WILLING TO UNDERTAKE THAT ADDITIONAL RESPONSIBILITY WITHOUT SOME KIND OF REMUNERATION. IF THE SHIPPING EMPLOYEE COULD NOT BE IMMEDIATELY LOCATED, AND A MATERIAL DELAY SHOULD OCCUR, A QUESTION WOULD ARISE AS TO WHETHER THE CARRIER'S LIABILITY FOR ANY LOSS OR DAMAGE WOULD BE THAT OF A COMMON CARRIER OR THAT OF A WAREHOUSEMAN. AND SHOULD THE ELECTION BE MADE NOT TO TRANSPORT THE WEIGHT OF THE EXCESS BAGGAGE, A QUESTION WOULD ARISE AS TO THE IDENTIFICATION OF THE PARTICULAR BAGGAGE TO BE SHIPPED AND THE DISPOSITION TO BE MADE OF THE REMAINING PORTION.

IN ADDITION, THE PARTIAL COLLECTION OF CHARGES BY THE CARRIER FROM THE EMPLOYEE FOR EXCESS BAGGAGE WOULD NOT BE COMPATIBLE WITH CONDITION 1 ON THE REVERSE OF THE GOVERNMENT BILL OF LADING. CONDITION 1 (NOW PUBLISHED IN 41 C.F.R. 101-41.302-3(A) (1977)) PROVIDES THAT PREPAYMENT OF THE CHARGES SHALL IN NO CASE BE DEMANDED BY THE CARRIER. PURSUANT TO THAT PROVISION, TRANSPORTATION CHARGES FOR THE SERVICES PROCURED UNDER GOVERNMENT BILLS OF LADING ARE TO BE BILLED TO AND PAID BY THE DESIGNATED DISBURSING OFFICERS OF THE GOVERNMENT DEPARTMENTS OR AGENCIES. THUS, BY THE TERMS OF THE GOVERNMENT BILL OF LADING CARRIERS ARE PREVENTED FROM LEGALLY ATTEMPTING TO EFFECT PARTIAL COLLECTION FROM A GOVERNMENT TRAVELER.

SINCE NUMEROUS RATES ARE PUBLISHED WHICH APPLY ONLY IN CONNECTION WITH GOVERNMENT ACCOUNTS, THE CHARGES PAID BY THE TRAVELER COULD BE AT A DIFFERENT RATE THAN THOSE PAID BY THE GOVERNMENT. THE PAYMENT BY TWO SOURCES ALSO WOULD MAKE DIFFICULT THE RECONCILIATION OF THE TWO PAYMENTS FOR AUDIT PURPOSES.

WE BELIEVE THAT MR. NANCE CANNOT BE RELIEVED FROM LIABILITY FOR $344, THE COST OF TRANSPORTING 400 POUNDS OF UNAUTHORIZED UNACCOMPANIED BAGGAGE.

UNDER THE FOREIGN SERVICE TRAVEL REGULATIONS, EMPLOYEES ARE RESPONSIBLE FOR ANY TRANSPORTATION, DEMURRAGE, STORAGE, CUSTOMS, CARTAGE, OR OTHER COSTS INCURRED BY THEM OR THEIR AGENTS WHICH ARE NOT AUTHORIZED BY LAWS AND REGULATIONS GOVERNING THE SHIPMENT OF EFFECTS AT GOVERNMENT EXPENSE. 6 FAM 163A.

IF THE WEIGHT OF THE UNACCOMPANIED BAGGAGE EXCEEDS THAT AUTHORIZED IN THE EMPLOYEE'S TRAVEL ORDERS, THE EMPLOYEE CAN REDUCE THE WEIGHT OF THE SHIPMENT BY REMOVING CERTAIN ITEMS OR HE CAN AGREE WITH HIS AGENCY TO REIMBURSE IT FOR THE EXCESS CHARGES.

IN THIS CASE THE RECORD SHOWS THAT MR. NANCE AUTHORIZED SOME EXCESS WEIGHT. AND ALTHOUGH THE RECORD IS CONFLICTING, THERE APPARENTLY WAS A MISUNDERSTANDING BETWEEN MR. NANCE AND NEPTUNE ABOUT THE WEIGHT OF THE PACKING MATERIAL HE AUTHORIZED NEPTUNE TO USE. IN THESE CIRCUMSTANCES, AND AS SUGGESTED IN THE RECORD BY AID, WE BELIEVE THAT THE EXCESS CHARGES SHOULD BE COLLECTED FROM MR. NANCE AND THAT HE SHOULD THEN LOOK TO NEPTUNE FOR APPROPRIATE RELIEF.