A-17930, APRIL 27, 1927, 6 COMP. GEN. 698

A-17930: Apr 27, 1927

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THE GOODS WERE TOTALLY DESTROYED BY FIRE WHILE EN ROUTE. THE UNITED STATES IS NOT OBLIGATED TO PAY THE TRUCKING COMPANY FOR THE PACKING AND HAULING OF GOODS. WHEREIN WAS DISALLOWED THE CLAIM OF E. THE FACTS IN THE CASE ARE AS FOLLOWS: THE CLAIMANT COMPANY. THE GOODS AND AUTO VAN WERE TOTALLY DESTROYED BY FIRE AT RAHWAY. IT APPEARS THAT THE VAN AND CONTENTS WERE INSURED BY E. IT IS CONTENDED ON BEHALF OF CLAIMANT THAT THE INSURANCE COMPANY HAVING PAID THE OWNER OF THE GOODS BURNED. THERE WAS SUCH A CONSTRUCTIVE DELIVERY OF THE GOODS AS TO CONSTITUTE PERFORMANCE ENTITLING IT TO THE CONSIDERATION NAMED IN THE CONTRACT. UNDER THE CIRCUMSTANCES OF THE SHIPMENT HERE INVOLVED THE TRUCKING COMPANY WAS OPERATING AS A COMMON CARRIER AND THEREFORE RESPONSIBLE FOR THE SAFE DELIVERY AT DESTINATION OF THE GOODS PLACED IN ITS CHARGE FOR HAULING AND DELIVERING.

A-17930, APRIL 27, 1927, 6 COMP. GEN. 698

TRANSPORTATION OF HOUSEHOLD GOODS - DESTRUCTION EN ROUTE WHERE A TRUCKING COMPANY CONTRACTED WITH THE GOVERNMENT TO PACK, CRATE, AND DELIVER THE HOUSEHOLD GOODS OF A FEDERAL EMPLOYEE FROM ONE STATION TO ANOTHER FOR A SPECIFIED AMOUNT, AND THE GOODS WERE TOTALLY DESTROYED BY FIRE WHILE EN ROUTE, A SETTLEMENT WITH THE OWNER OF THE GOODS DOES NOT CONSTITUTE DELIVERY WITHIN THE TERMS OF THE CONTRACT, AND THE UNITED STATES IS NOT OBLIGATED TO PAY THE TRUCKING COMPANY FOR THE PACKING AND HAULING OF GOODS.

DECISION BY ASSISTANT COMPTROLLER GENERAL GINN, APRIL 27, 1927:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT NO. 0124037, DATED FEBRUARY 15, 1927, WHEREIN WAS DISALLOWED THE CLAIM OF E. F. CALDWELL (INC.), FOR $150 UNDER A CONTRACT FOR PACKING AND MOVING THE HOUSEHOLD GOODS OF MICHAEL B. GLEASON, AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE ON CHANGE OF STATION FROM BRIGHTON, MASS., TO PHILADELPHIA, PA., IN AUGUST, 1925.

THE FACTS IN THE CASE ARE AS FOLLOWS:

THE CLAIMANT COMPANY, UNDER DATE OF JULY 21, 1925, AGREED WITH THE DEPARTMENT OF AGRICULTURE TO FURNISH ALL NECESSARY MATERIAL AND LABOR FOR WRAPPING, CRATING, OR OTHERWISE PACKING THE HOUSEHOLD GOODS AND FURNITURE BELONGING TO MICHAEL B. GLEASON, AN EMPLOYEE OF THE BUREAU OF AGRICULTURE ECONOMICS, LOCATED AT NO. 364-A, WASHINGTON STREET, BRIGHTON, MASS., AND DELIVER THE PROPERTY BY AUTO VAN TO PHILADELPHIA, PA., FOR $150.

ON AUGUST 11, 1925, WHILE EN ROUTE TO PHILADELPHIA, THE GOODS AND AUTO VAN WERE TOTALLY DESTROYED BY FIRE AT RAHWAY, N.J. IT APPEARS THAT THE VAN AND CONTENTS WERE INSURED BY E. F. CALDWELL (INC.), WITH THE AETNA FIRE INSURANCE CO. FOR $4,000 AND THAT THE INSURANCE COMPANY PAID MR. GLEASON $2,200 IN FULL SATISFACTION OF HIS LOSS.

IT IS CONTENDED ON BEHALF OF CLAIMANT THAT THE INSURANCE COMPANY HAVING PAID THE OWNER OF THE GOODS BURNED, THERE WAS SUCH A CONSTRUCTIVE DELIVERY OF THE GOODS AS TO CONSTITUTE PERFORMANCE ENTITLING IT TO THE CONSIDERATION NAMED IN THE CONTRACT.

UNDER THE CIRCUMSTANCES OF THE SHIPMENT HERE INVOLVED THE TRUCKING COMPANY WAS OPERATING AS A COMMON CARRIER AND THEREFORE RESPONSIBLE FOR THE SAFE DELIVERY AT DESTINATION OF THE GOODS PLACED IN ITS CHARGE FOR HAULING AND DELIVERING, AND THE FACT THAT THE SAID COMPANY FOR ITS OWN PROTECTION TOOK OUT INSURANCE ON THE GOODS IS A MATTER IN WHICH THE GOVERNMENT IS IN NOWISE CONCERNED AND DOES NOT ALTER OR CHANGE IN ANY WAY THE CONTRACT OF THE TRUCKING COMPANY TO HAUL THE HOUSEHOLD GOODS IN QUESTION AND DELIVER SAME AT PHILADELPHIA, PA.

THE CONTRACT IN THIS CASE WAS AN ENTIRE AND INDIVISIBLE CONTRACT UNDER WHICH NO PART OF THE CONSIDERATION COULD BE EARNED UNLESS AND UNTIL THE SERVICES REQUIRED THEREUNDER WERE COMPLETELY PERFORMED.

INASMUCH AS THE GOODS WERE DESTROYED BY FIRE EN ROUTE DELIVERY WAS NOT MADE IN ACCORDANCE WITH THE CONTRACT OF CARRIAGE AND THEREFORE THE UNITED STATES IS NOT LIABLE FOR ANY PART OF THE CONTRACT PRICE. SEE BURN LINE V. U.S. AND A.S.S. COMPANY, 162 FED.REP. 298; DE SOLA ET AL. V. ROMARES ET AL., 119 FED.REP. 373. SEE ALSO 4 COMP. GEN. 562; 12 COMP. DEC. 746. SEE ALSO DECISION OF JANUARY 8, 1924, REVIEW NO. 5819, IN WHICH THE SAME RULE WAS APPLIED IN THE SETTLEMENT OF A CLAIM FOR TRANSPORTATION CHARGES ON A SHIPMENT OF PILLOWS, A NUMBER OF WHICH WERE LOST IN TRANSIT THE VALUE THEREOF BEING PAID BY THE CARRIER.

IN A DECISION OF SEPTEMBER 13, 1915, APPEAL NO. 24971, THERE WAS INVOLVED A CLAIM FOR TRANSPORTATION CHARGES ON A CERTAIN SHIPMENT CONSISTING OF ONE BUNDLE OF STEEL, ONE CRATED CAN, AND TWO BOXES OF FITTINGS. THE BUNDLE OF STEEL WAS LOST IN TRANSIT AND THE COMPTROLLER OF THE TREASURY, IN SETTLEMENT OF THE CLAIM, HELD THAT "AS THE STEEL WAS NOT DELIVERED NO TRANSPORTATION CHARGES CAN BE ALLOWED THEREON," AND DEDUCTED THE FULL VALUE OF THE STEEL LOST FROM THE TRANSPORTATION CHARGES DUE ON THE OTHER ITEMS ACTUALLY DELIVERED. TO THE SAME EFFECT WAS DECISION OF THIS OFFICE DATED NOVEMBER 15, 1923, REVIEW NO. 5715, INVOLVING A SHIPMENT OF 19 HORSES BELONGING TO THE GOVERNMENT, ONLY 18 OF WHICH WERE DELIVERED AT DESTINATION. THE CARRIER PAID THE FULL VALUE OF THE HORSE NOT DELIVERED BUT WAS ALLOWED ONLY EIGHTEEN NINETEENTHS OF THE FREIGHT CHARGES THAT WOULD HAVE ACCRUED IF ALL 19 HORSES HAD BEEN DELIVERED AT DESTINATION.

THERE HAVING BEEN NO DELIVERY OF THE HOUSEHOLD GOODS IN ACCORDANCE WITH THE CONTRACT OF CARRIAGE IN THIS CASE, THERE IS NO LIABILITY UPON THE PART OF THE UNITED STATES FOR THE CARRYING CHARGES AND ACCORDINGLY, UPON REVIEW, THE DISALLOWANCE MUST BE AND IS SUSTAINED.