A-83125, A-90508, AUGUST 16, 1938, 18 COMP. GEN. 164

A-83125,A-90508: Aug 16, 1938

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TRANSPORTATION - HOUSEHOLD EFFECTS - GOVERNMENT OFFICERS AND EMPLOYEES - GOVERNMENT LIABILITY FOR GENERAL AVERAGE CONTRIBUTIONS THE OWNER OF THE PROPERTY IS THE PARTY LIABLE FOR CONTRIBUTION IN GENERAL AVERAGE AND THIS RULE IS APPLICABLE TO SHIPMENTS OF THE PERSONAL EFFECTS OF OFFICERS. UNTIL THE MATTER HAS HAD FURTHER JUDICIAL CONSIDERATION OR THERE IS LEGISLATION AFFIRMATIVELY AUTHORIZING SUCH PAYMENTS. AS FOLLOWS: HOUSEHOLD EFFECTS OF NAVY PERSONNEL ARE TRANSPORTED AT PUBLIC EXPENSE UNDER CHANGE OF STATION ORDERS IN ACCORDANCE WITH SECTION 12 OF THE ACT OF MAY 18. PROVIDES: "THAT THE PERSONNEL OF THE NAVY SHALL HAVE THE BENEFIT OF ALL EXISTING LAWS APPLYING TO THE ARMY AND THE MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS.'.

A-83125, A-90508, AUGUST 16, 1938, 18 COMP. GEN. 164

TRANSPORTATION - HOUSEHOLD EFFECTS - GOVERNMENT OFFICERS AND EMPLOYEES - GOVERNMENT LIABILITY FOR GENERAL AVERAGE CONTRIBUTIONS THE OWNER OF THE PROPERTY IS THE PARTY LIABLE FOR CONTRIBUTION IN GENERAL AVERAGE AND THIS RULE IS APPLICABLE TO SHIPMENTS OF THE PERSONAL EFFECTS OF OFFICERS, ENLISTED MEN, AND EMPLOYEES OF THE GOVERNMENT ON PERMANENT CHANGE OF STATION, ACCORDINGLY THE ACCOUNTING OFFICERS OF THE GOVERNMENT MAY NOT FOLLOW THE HODGES CASE. 84 CT.CLS. 380, HOLDING THE GOVERNMENT LIABLE IN GENERAL AVERAGE IN CONNECTION WITH SUCH SHIPMENTS, UNTIL THE MATTER HAS HAD FURTHER JUDICIAL CONSIDERATION OR THERE IS LEGISLATION AFFIRMATIVELY AUTHORIZING SUCH PAYMENTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 16, 1938:

BY YOUR DIRECTION THERE HAS BEEN RECEIVED LETTER DATED JUNE 1, 1938, AS FOLLOWS:

HOUSEHOLD EFFECTS OF NAVY PERSONNEL ARE TRANSPORTED AT PUBLIC EXPENSE UNDER CHANGE OF STATION ORDERS IN ACCORDANCE WITH SECTION 12 OF THE ACT OF MAY 18, 1920 (41 STAT. 604; 34 U.S. CODE, SEC. 896), AND THE INSTRUCTIONS CONTAINED IN ARTICLE 1870, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL.

THE LAST PROVISO OF SECTION 12 OF THE CITED ACT OF MAY 18, 1920, PROVIDES:

"THAT THE PERSONNEL OF THE NAVY SHALL HAVE THE BENEFIT OF ALL EXISTING LAWS APPLYING TO THE ARMY AND THE MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS.'

ARTICLE 1870-11 (C) (2), BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, CONTAINS THE FOLLOWING:

"SHIPMENTS OF HOUSEHOLD EFFECTS BY SUPPLY OFFICERS SHALL BE MADE BY ORDINARY FREIGHT LINES (INCLUDING COMMERCIAL TRUCKS) AT THE LOWEST FREIGHT RATE AND AT THE AGREED OR DECLARED VALUE AT WHICH THE LOWEST RATE IS APPLICABLE (PROVIDED THE OWNER DOES NOT FILE REQUEST TO SHIP AT A HIGHER VALUATION), UNLESS SHIPMENT BY EXPRESS OR MOVING VAN INVOLVES LESS EXPENSE TO THE GOVERNMENT, IN WHICH CASE THE LESS EXPENSIVE OF THESE TWO METHODS SHALL BE EMPLOYED. WHERE SHIPMENT BY ORDINARY FREIGHT LINES (INCLUDING COMMERCIAL TRUCKS) INVOLVES LESS EXPENSE TO THE GOVERNMENT THAN SHIPMENT BY EXPRESS OR MOVING VANS, EITHER OF THE TWO LATTER METHODS MAY BE EMPLOYED IF REQUESTED IN WRITING BY THE OWNER OF THE EFFECTS, IN WHICH CASE ANY EXCESS COSTS INVOLVED SHALL BE HANDLED AS PROVIDED IN PAR. 7 (B).'

UNLESS SPECIFICALLY REQUESTED TO THE CONTRARY BY THE OWNER, SHIPMENTS OF HOUSEHOLD EFFECTS TURNED OVER TO SUPPLY OFFICERS FOR HANDLING ARE PACKED, CRATED, HAULED, AND SHIPPED ENTIRELY UNDER CONTROL AND DIRECTION OF GOVERNMENT SHIPPING OFFICERS. IN LIKE MANNER, CONTRACTS FOR PACKING, CRATING, AND HAULING WITHIN THE ESTABLISHED ZONES OF NAVAL ACTIVITIES ARE ENTERED INTO BY THE GOVERNMENT AND THE PERSONNEL WHOSE HOUSEHOLD EFFECTS ARE BEING HANDLED THEREUNDER HAVE NO PART IN THE ENTERING INTO OF SUCH CONTRACTS.

IN THE TRANSPORTATION OF HOUSEHOLD EFFECTS AND ALSO IN THE PACKING, CRATING, AND HAULING THEREOF, QUESTIONS OF LOSS AND DAMAGE FREQUENTLY ARISE. THE INSTRUCTIONS IN BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, ARTICLE 1870-17 (A), READ AS FOLLOWS:

"DAMAGE TO OR LOSS OF HOUSEHOLD EFFECTS IN TRANSIT, WHETHER SHIPPED BY A SUPPLY OFFICER OR BY THE OWNER, IS A MATTER FOR ADJUSTMENT BY THE OWNER OF THE EFFECTS WITH THE CARRIER, AS HOUSEHOLD EFFECTS ARE NOT GOVERNMENT PROPERTY. (SEE 15 COMP. DEC. 38, JULY 16, 1908).'

IN THE DECISION OF THE COURT OF CLAIMS, NO. 170, DECIDED JANUARY 11, 1937, IN THE CASE OF LIEUTENANT COLONEL JOHN N. HODGES, U.S. ARMY, IT WAS HELD:

"IN THE CASE AT BAR, WHEN THE GOVERNMENT, UNDER OBLIGATION AND WITH FULL CONTROL AND AUTHORITY FOR TRANSPORTATION OF THE PROPERTY, ACCEPTED AND SHIPPED IT, THE CARRIER WAS THE AGENT OF THE GOVERNMENT, AND THE RISK OF THE TRANSPORTATION, INCLUDING POSSIBLE OR CONTINGENT LIABILITY FOR GENERAL AVERAGE, WAS THE RISK OF THE GOVERNMENT, AND IT WAS THEREFORE LIABLE TO THE CLAIMANT BOTH FOR THE DAMAGE TO THE PROPERTY AND FOR THE LIABILITY IN GENERAL AVERAGE.'

IN DENYING THE CLAIM OF CHIEF MACHINIST B. H. FAHERTY, U.S. NAVY, NO. 0665852, FOR REFUND OF THE SUM OF $70.91, REPRESENTING THE AMOUNT ALLEGED TO BE DUE CLAIMANT ON ACCOUNT OF GENERAL AVERAGE CHARGES HE WAS REQUIRED TO PAY IN ORDER TO SECURE THE RELEASE OF HIS HOUSEHOLD GOODS SHIPPED ON THE S.S. KENTUCKIAN, THE GENERAL ACCOUNTING OFFICE (CLAIMS DIVISION) CERTIFIED, UNDER DATE OF FEBRUARY 4, 1938:

"THE OBLIGATION TO CONTRIBUTE IN GENERAL AVERAGE RESTS UPON THE VESSEL, THE CARGO, AND THE FREIGHT, AND THE OWNERS OF SUCH INTERESTS, THE CARGO OWNERS CONTRIBUTING ACCORDING TO THE VALUE OF THEIR PROPERTY SAVED. YOU, AS THE OWNER OF THE HOUSEHOLD EFFECTS SHIPPED, WERE NOT RELIEVED FROM YOUR OBLIGATION TO CONTRIBUTE IN GENERAL AVERAGE AS A RESULT OF THE FIRE EVEN THOUGH YOUR PERSONAL HOUSEHOLD EFFECTS WERE SHIPPED ON GOVERNMENT BILL OF LADING. FURTHERMORE, THERE IS NO AUTHORITY OF THE UNITED STATES TO CONTRIBUTE IN GENERAL AVERAGE WHERE NONE OF THE CARGO INVOLVED, OR THE VESSEL, IS GOVERNMENT PROPERTY AND THE FACT THAT THE GOVERNMENT BORE THE EXPENSE OF TRANSPORTING YOUR PERSONAL HOUSEHOLD EFFECTS DOES NOT OPERATE TO MAKE THE GOVERNMENT AN INSURER OF SUCH EFFECTS. AS BETWEEN THE GOVERNMENT AND THE OWNER, ALL RISKS OF THE SHIPMENT ARE ASSUMED BY THE OWNER UNLESS SPECIFICALLY PROVIDED BY LAW.

"I THEREFORE CERTIFY THAT NO BALANCE IS FOUND DUE YOU FROM THE UNITED STATES.'

IN VIEW OF THE DIFFERENT RULINGS IN THIS MATTER BY THE GENERAL ACCOUNTING OFFICE AND THE COURT OF CLAIMS, THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS OF THE NAVY DEPARTMENT HAS REQUESTED INSTRUCTIONS OF THE SECRETARY OF THE NAVY AS TO THE PROCEDURE TO BE FOLLOWED IN THE SETTLEMENT OF CLAIMS COVERING GENERAL AVERAGE PERTAINING TO SHIPMENT OF HOUSEHOLD EFFECTS.

BEFORE TAKING ANY FURTHER ACTION IN THIS MATTER, YOUR DECISION IS REQUESTED ON THE QUESTION WHETHER THE DECISION OF THE COURT OF CLAIMS IN THE HODGES CASE, SUPRA, WILL BE ACCEPTED BY THE GENERAL ACCOUNTING OFFICE AS A BASIS FOR SETTLEMENT OF THE CLAIM IN GENERAL AVERAGE OF CHIEF MACHINIST B. H. FAHERTY, U.S. NAVY, AND SIMILAR CLAIMS IN GENERAL AVERAGE ARISING IN THE FUTURE.

THE CLAIM OF LIEUTENANT COLONEL JOHN N. HODGES, U.S. ARMY, FOR GENERAL- AVERAGE LIABILITY FOR THE AMOUNT CLAIMED FROM HIM BY REASON OF DAMAGE CAUSED BY FLOODING IN ORDER TO EXTINGUISH FIRE ON THE VESSEL WHICH TRANSPORTED THE CLAIMANT'S HOUSEHOLD GOODS AND BOOKS, WAS SUBMITTED BY THE WAR DEPARTMENT TO THE COURT OF CLAIMS UNDER THE AUTHORITY CONTAINED IN 28 U.S.C. 254, SECTION 1063, REVISED STATUTES, AS AMENDED. IN AN OPINION DATED JANUARY 11, 1937, THE COURT FOUND THE FACTS IN THE CASE TO BE, BRIEFLY, AS FOLLOWS:

THE CLAIMANT, PURSUANT TO AN ORDER DATED MARCH 23, 1931, FOR CHANGE OF STATION FROM WASHINGTON, D.C., TO NEW ORLEANS, LA., AND PURSUANT TO ARMY REGULATIONS RELATIVE TO TRANSPORTATION OF OFFICERS' PROPERTY ON CHANGE OF STATION, TURNED OVER TO THE QUARTERMASTER OF THE ARMY AT WASHINGTON, D.C., HIS HOUSEHOLD GOODS AND OTHER PROPERTY FOR TRANSPORTING TO NEW ORLEANS. THE QUARTERMASTER DEPARTMENT, WITHOUT NOTICE TO THE CLAIMANT AS TO THE MANNER OR ROUTE OF SHIPMENT, SHIPPED THE PROPERTY BY RAIL TO NEW YORK AND THENCE ON MAY 6, 1931, BY THE VESSEL EL CAPITAN, A STEAMSHIP OF THE SOUTHERN PACIFIC STEAMSHIP LINES (MORGAN LINE), TO NEW ORLEANS, CONSIGNED TO THE CLAIMANT, SUCH ROUTE BEING CHOSEN AS THE CHEAPEST ROUTE. ON MAY 10, 1931, FIRE WAS DISCOVERED IN THE CARGO OF THE VESSEL AND IN ORDER TO EXTINGUISH THE FIRE PART OF THE VESSEL WAS SUBSEQUENTLY FLOODED, THEREBY DAMAGING THE CLAIMANT'S PROPERTY AND OTHER PORTIONS OF THE CARGO. THE CLAIMANT EXECUTED A GENERAL-AVERAGE AGREEMENT IN ORDER TO OBTAIN POSSESSION OF HIS PROPERTY, THE QUARTERMASTER DEPARTMENT HAVING REFUSED TO EXECUTE SUCH AN AGREEMENT. THE STATEMENT OF GENERAL AVERAGE SUBMITTED TO THE CLAIMANT SHOWED A BALANCE OF $4,153.18. THE CLAIMANT PAID NO PART OF THE SAID BALANCE. ON NOVEMBER 6, 1931, THE CLAIMANT SUBMITTED TO THE WAR DEPARTMENT A CLAIM FOR RELIEF UNDER SECTION 35-7100, ARMY REGULATIONS (ACT OF MARCH 4, 1921, 41 STAT. 1436), AND A BOARD OF ARMY OFFICERS APPOINTED BY THE MISSISSIPPI RIVER COMMISSION, WAR DEPARTMENT, THEREAFTER REPORTED TO THE CHIEF OF FINANCE, WAR DEPARTMENT, THAT THE CLAIMANT HAD SUFFERED DAMAGE IN THE AMOUNT OF $3,870.36 AND RECOMMENDED THAT THE GOVERNMENT ASSUME RESPONSIBILITY FOR SUCH DAMAGE AND RELIEVE THE CLAIMANT FROM ALL LIABILITY UNDER THE GENERAL-AVERAGE AGREEMENT. SUBSEQUENTLY, ANOTHER BOARD OF OFFICERS IN THE OFFICE OF THE CHIEF OF FINANCE RECOMMENDED THAT THE CLAIM BE DISALLOWED, FINDING THAT IT DID NOT COME UNDER THE ACT OF MARCH 4, 1921, 41 STAT. 1436. THE CHIEF OF FINANCE APPROVED THE FINDINGS OF THE LATTER BOARD AND REFERRED THE MATTER TO THE SECRETARY OF WAR WITH THE SUGGESTION THAT THE MATTER BE REFERRED TO THE COURT OF CLAIMS FOR DECISION.

ON THE FACTS AS FOUND, THE COURT OF CLAIMS DECIDED THAT THE CLAIMANT WAS ENTITLED TO RECOVER FROM THE UNITED STATES THE SUM OF $4,153.18, FOR THE REASONS, BRIEFLY, THAT THE GOVERNMENT WAS OBLIGATED UNDER THE APPLICABLE STATUTES AND ARMY REGULATIONS FOR THE TRANSPORTATION OF THE CLAIMANT'S PROPERTY ON HIS CHANGE OF STATION; THAT THE GOVERNMENT, WITH FULL AUTHORITY TO DETERMINE THE MANNER AND ROUTE OF SHIPMENT, SHIPPED THE PROPERTY BY A MORE HAZARDOUS ROUTE WITHOUT NOTICE TO THE CLAIMANT; AND THAT THE GENERAL-AVERAGE ASSESSMENT WAS A CONTINGENT PART OF THE COST OF TRANSPORTATION FOR WHICH THE GOVERNMENT WAS LIABLE.

THE ATTORNEY GENERAL OF THE UNITED STATES DID NOT REQUEST OF THIS OFFICE PRIOR TO THE HEARING OR ARGUMENT ON THE CASE, ANY FACTS OR CIRCUMSTANCES RELATING TO THE CASE. SECTION 188, REVISED STATUTES (5 U.S.C. 91). SUBSEQUENT TO THE DATE OF THE DECISION OF THE COURT,HOWEVER, THE ATTORNEY GENERAL REQUESTED THE RECOMMENDATIONS OF THIS OFFICE AS TO FURTHER PROCEEDINGS IN THE CASE.

IN REPLY TO THE REQUEST OF THE ATTORNEY GENERAL, THIS OFFICE INVITED ATTENTION TO THAT PART OF THE OPINION STATING THAT THE WEIGHT OF THE CLAIMANT'S SHIPMENT WAS 13,088 POUNDS AND IN THAT CONNECTION TO THE ARMY REGULATIONS FIXING THE QUANTITY OF A LIEUTENANT COLONEL'S PERSONAL PROPERTY, IN ADDITION TO PROFESSIONAL BOOKS AND PAPERS, TO BE TRANSPORTED AT GOVERNMENT EXPENSE, AT 9,500 POUNDS. THIS OFFICE STATED THAT THE GOVERNMENT CLEARLY WAS NOT LIABLE FOR DAMAGES TO, OR GENERAL-AVERAGE CONTRIBUTION BY REASON OF THAT PORTION OF THE CLAIMANT'S PROPERTY IN EXCESS OF THE REGULATION ALLOWANCE. AND IN VIEW OF THE NOVELTY OF THE QUESTION THIS OFFICE RECOMMENDED THAT THE SUPREME COURT OF THE UNITED STATES BE PETITIONED FOR A WRIT OF CERTIORARI TO REVIEW THE JUDGMENT, AFTER FIRST OBTAINING FROM THE COURT OF CLAIMS AN AMENDED FINDING OF FACT AS TO THE EXCESS OF THE INVOLVED PROPERTY ABOVE THE REGULATION ALLOWANCE. SUBSEQUENTLY THE ATTORNEY GENERAL ADVISED THIS OFFICE THAT THE SOLICITOR GENERAL HAD DETERMINED NOT TO SEEK A WRIT OF CERTIORARI IN THE CASE.

THE COURT'S OPINION AS TO THE LIABILITY OF THE GOVERNMENT IS STATED IN THE FOLLOWING LANGUAGE:

IN THE CASE AT BAR, WHEN THE GOVERNMENT, UNDER OBLIGATION AND WITH FULL CONTROL AND AUTHORITY FOR TRANSPORTATION OF THE PROPERTY, ACCEPTED AND SHIPPED IT, THE CARRIER WAS THE AGENT OF THE GOVERNMENT, AND THE RISK OF THE TRANSPORTATION, INCLUDING POSSIBLE OR CONTINGENT LIABILITY FOR GENERAL AVERAGE, WAS THE RISK OF THE GOVERNMENT, AND IT WAS THEREFORE LIABLE TO THE CLAIMANT BOTH FOR THE DAMAGE TO THE PROPERTY AND FOR THE LIABILITY IN GENERAL AVERAGE.

WE THINK, ALSO, THAT CLAIMANT CAN BE HELD TO HAVE A SECOND GROUND OF RECOVERY ON THE BASIS OF THE GENERAL AVERAGE ASSESSMENT AND LIABILITY BEING A CONTINGENT PART OF THE COST OF THE TRANSPORTATION FOR WHICH THE GOVERNMENT WAS LIABLE. WHEN THE GOVERNMENT, BEING LIABLE FOR THE TRANSPORTATION, ACCEPTED THE PROPERTY FOR TRANSPORTATION AND, FOR ECONOMY TO ITSELF, ELECTED TO SHIP IT BY A ROUTE AND UNDER AN AFFREIGHTMENT AGREEMENT WHICH MADE IT LIABLE FOR A POSSIBLE OR CONTINGENT ADDITIONAL CHARGE IN THE WAY OF GENERAL AVERAGE, THIS ADDITIONAL CHARGE WAS IN EFFECT A PART OF THE COST OF TRANSPORTATION FOR WHICH THE GOVERNMENT WAS LIABLE, AND SHOULD BE SO HELD.

IT WILL BE NOTED THAT THE COURT CITES NO PRIOR CASES TO SUPPORT EITHER OF THESE CONCLUSIONS. EARLIER IN THE OPINION THE CASE OF R. P. ANDREWS V. THE UNITED STATES, 41 CT.CLS, 48, AFFIRMED, 207 U.S. 229, WAS REFERRED TO. THAT CASE TURNED ENTIRELY ON THE QUESTION WHEN TITLE TO THE GOODS PASSED, IT BEING HELD THAT A SOLICITATION OF BIDS AT GOVERNMENT CONTRACT PRICES FOR DELIVERY IN WASHINGTON, PLUS FREIGHT NEW YORK TO MANILA, WITH DIRECTIONS AS TO DELIVERY TO BE MADE TO THE AGENT, IN NEW YORK, OF THE GOVERNMENT FOR FORWARDING THE SUPPLIES TO THE PHILIPPINE ISLANDS BY A CARRIER SELECTED BY THE GOVERNMENT, PASSED THE TITLE TO THE GOODS TO THE GOVERNMENT UPON SUCH DELIVERY IN NEW YORK, NOTWITHSTANDING THE USE OF THE TERM "F.O.B. MANILA" IN THE CORRESPONDENCE LEADING UP TO THE FORMATION OF THE CONTRACT. IT SEEMS TO HAVE NO APPLICATION TO THE QUESTION INVOLVED IN THE HODGES CASE, AS THERE IS NO QUESTION HE WAS THE OWNER OF THE GOODS.

THE FIRST OF THE QUOTED PARAGRAPHS ABOVE FROM THE OPINION ANNOUNCES A LIABILITY OF THE GOVERNMENT HAS NOT HERETOFORE ASSUMED, AND NO OTHER COURT HAS EVER BEFORE INTIMATED SUCH A LIABILITY ATTACHED TO THE GOVERNMENT. THAT THE MERE FACT THAT IT WAS OBLIGATED TO PAY THE FREIGHT CHARGES AND HAD CONTROL OF THE MANNER AND ROUTE OF SHIPMENT SHOULD TRANSFER TO IT A LIABILITY TO CONTRIBUTE IN GENERAL AVERAGE, ALTHOUGH THE GOVERNMENT WAS NOT THE OWNER OF THE GOODS, SEEMS CONTRARY TO ALL THE CASES ON GENERAL AVERAGE, BOTH ENGLISH AND AMERICAN, WHICH UNIFORMLY FIX SUCH LIABILITY ON THE OWNER OF THE GOODS. IT IS APPROPRIATE SINCE THE CASE HOLDS THE GOVERNMENT RESPONSIBLE FOR THE OWNER'S LIABILITY UNDER THE MARITIME LAW TO CONTRIBUTE IN GENERAL AVERAGE TO INQUIRE WHAT THE EXACT RELATION OF THE GOVERNMENT TO SUCH A SHIPMENT IS. THE RIGHT OF AN OFFICER OF THE ARMY TO HAVE HIS PERSONAL PROPERTY SHIPPED AT THE EXPENSE OF THE GOVERNMENT UPON PERMANENT CHANGE OF STATION RESTS ON NO PERMANENT PROVISIONS OF LAW. THE PRACTICE ORIGINATED IN THE EARLY YEARS OF THE NATION WHEN IT WAS THE CUSTOM TO LOAD OFFICERS' EFFECTS INTO THE REGIMENTAL WAGONS WHEN A REGIMENT OR OTHER UNIT WAS MOVED. SUBSEQUENTLY, THIS PERMISSION WAS REGULATED AS TO WEIGHTS AND, LATER, WHEN MOVEMENTS OF OFFICERS WERE SO FREQUENTLY INDEPENDENT OF AND WITHOUT REFERENCE TO THE MOVEMENT OF AN ORGANIZATION, THE APPROPRIATION ACTS CONTAINED AUTHORITY TO PAY THE COST OF SHIPPING THE OFFICER'S BAGGAGE. LATER, SPECIFIC AUTHORITY WAS ADDED TO PAY FOR THE COST OF PACKING AND CRATING. THE AUTHORITY IS CONTAINED IN THE APPROPRIATION "ARMY ANSPORTATION," FOR THE FISCAL YEAR 1938, 50 STAT. 451, WHICH SPECIFICALLY MAKES THE FUNDS THEREIN APPROPRIATED AVAILABLE FOR SUCH SHIPMENTS IN THE FOLLOWING LANGUAGE:

* * * FOR TRANSPORTATION OF ARMY SUPPLIES; OF AUTHORIZED BAGGAGE, INCLUDING PACKING AND RATING; * * *

THE PRACTICE HAVING GROWN UP WITHOUT STATUTORY AUTHORITY AND HAVING BEEN REGULATED BY THE ARMY AUTHORITIES, THE APPROPRIATION ACT LEAVES THE MATTER ENTIRELY TO REGULATION, AND ARMY REGULATIONS HAVE REQUIRED THAT IF AN OFFICER WANTS THE GOVERNMENT TO ASSUME THE COST OF TRANSPORTATION, HE MUST TURN HIS EFFECTS OVER TO A QUARTERMASTER, IF STATIONED WHERE ONE IS AVAILABLE, FOR SHIPMENT. THE REGULATIONS HAVE FURTHER REQUIRED THE QUARTERMASTER TO SHIP THE GOODS AT RELEASED VALUATION BY THE ROUTE AND METHOD GIVING THE LOWEST RATE, SPECIFICALLY REQUIRING THE USE OF RAIL- WATER OR RAIL-WATER-RAIL ROUTING WHEN AVAILABLE AT LESS COST. IT HAS ALWAYS BEEN BELIEVED THAT THIS WAS A MERE AUTHORITY TO SAVE THE OFFICER THE EXPENSE OF MOVING HIS HOUSEHOLD EFFECTS WHEN OFFICIAL BUSINESS REQUIRED THAT HE CHANGE STATIONS. THE PRACTICE ORIGINATED IN THE ARMY, AS STATED ABOVE, AND MORE RECENTLY, FROM TIME TO TIME, USUALLY IN APPROPRIATION ACTS THE CONGRESS HAS MADE FUNDS AVAILABLE FOR OTHER BRANCHES OF THE SERVICE FOR SUCH PURPOSES. SEE, FOR EXAMPLE, 50 STAT. 152, PROCUREMENT DIVISION--- PUBLIC BUILDINGS BRANCH--- "TRANSPORTATION OF HOUSEHOLD GOODS, INCIDENT TO CHANGE OF HEADQUARTERS OF ALL EMPLOYEES ENGAGED IN FIELD ACTIVITIES, NOT TO EXCEED FIVE THOUSAND POUNDS AT ANY ONE TIME, TOGETHER WITH THE NECESSARY EXPENSES INCIDENT TO PACKING AND DRAYING SAME; " VETERANS' ADMINISTRATION, 50 STAT. 346, WITH THE SAME LIMITATION "WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY AND WHEN SPECIFICALLY AUTHORIZED BY THE ADMINISTRATOR; " STATE DEPARTMENT, 50 STAT. 264, "EXPENSES OF TRANSPORTATION OF EFFECTS, IN GOING TO AND RETURNING FROM THEIR POSTS; " DEPARTMENT OF COMMERCE--- BUREAU OF AIR COMMERCE--- 50 STAT. 285,"APPROPRIATIONS HEREIN MADE FOR MAINTENANCE OF AIR-NAVIGATION FACILITIES AND AIRCRAFT IN COMMERCE SHALL BE AVAILABLE IN A TOTAL AMOUNT OF NOT TO EXCEED $15,000 FOR EXPENSES OF PACKING, CRATING, AND TRANSPORTING HOUSEHOLD EFFECTS OF EMPLOYEES, IN ANY ONE CASE NOT TO EXCEED SIX THOUSAND POUNDS, WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY; " BUREAU OF FOREIGN AND DOMESTIC COMMERCE, 50 STAT. 287,"TO PAY * * * EXPENSES OF TRANSPORTATION, UNDER SUCH REGULATIONS AS THE SECRETARY OF COMMERCE MAY PRESCRIBE, OF * * * EFFECTS OF OFFICERS AND EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE IN GOING AND RETURNING FROM THEIR POSTS, * * *; " BUREAU OF LIGHTHOUSES, 50 STAT. 291,"* * * NOT EXCEEDING $3,500 FOR PACKING, CRATING AND TRANSPORTING PERSONAL HOUSEHOLD EFFECTS OF EMPLOYEES, NOT TO EXCEED SIX THOUSAND POUNDS IN ANY ONE CASE, WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY; DEPARTMENT OF LABOR, LIAISON WITH THE INTERNATIONAL LABOR ORGANIZATION, GENEVA, SWITZERLAND, 50 STAT. 298,"* * * TRANSPORTATION OF EMPLOYEES, THEIR FAMILIES, AND EFFECTS, IN GOING TO AND RETURNING FROM FOREIGN POSTS; * * *"

AS TO THE PERMANENT LAW RELATING TO THE DEPARTMENT OF AGRICULTURE, SEE 17 COMP. DEC. 698. IT WAS HELD BY THE COMPTROLLER OF THE TREASURY, 19 COMP. DEC. 758, THAT IN THE ABSENCE OF A STATUTE SO AUTHORIZING AN OFFICER WHOSE COMPENSATION IS FIXED BY LAW WAS NOT ENTITLED TO HAVE HIS HOUSEHOLD EFFECTS SHIPPED AT THE EXPENSE OF THE GOVERNMENT UPON PERMANENT CHANGE OF STATION. IN THE NAVY, PRIOR TO THE ACT OF MAY 18, 1920, WHICH YOU CITE, THERE WAS NO AUTHORITY TO SHIP THE HOUSEHOLD EFFECTS OF AN OFFICER OF THE NAVY IN THE UNITED STATES, 19 COMP. DEC. 699, BUT UNDER A STATUTE AUTHORIZING ACTUAL AND NECESSARY EXPENSES FOR TRAVEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, AND REGULATIONS OF THE NAVY AN OFFICER WAS ENTITLED TO HAVE SUCH SHIPMENT MADE AT THE EXPENSE OF THE UNITED STATES FROM THE UNITED STATES TO A POST OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. PRACTICALLY ALL PROVISIONS OF THIS CHARACTER HAVE BEEN BY AUTHORITY IN THE APPROPRIATION ACT AND EXCEPT FOR THE ARMY AND MARINE CORPS, PRACTICALLY ALL PROVISIONS OF THIS CHARACTER HAVE BEEN BY AUTHORITY IN THE APPROPRIATION ACT AND EXCEPT FOR THE ARMY AND MARINE CORPS, PRACTICALLY ALL HAVE BEEN SO AUTHORIZED WITHIN THE PAST 20 OR 25 YEARS. PRIOR TO SUCH AUTHORITY ON PERMANENT CHANGE OF STATION, AS HELD IN 19 COMP. DEC. 758, THE OFFICER OR EMPLOYEE BORE THE EXPENSES OF PACKING, CRATING, HAULING, AND TRANSPORTATION OF HIS EFFECTS, AND THE PURPOSE OF THE STATUTES WAS NO MORE THAN TO RELIEVE THE OFFICER OR EMPLOYEE OF THESE SPECIFIC EXPENSES. AND IN ALL CASES THE NECESSARY REQUIREMENT IS THAT THE EXPENSE OF THE GOVERNMENT SHALL BE LIMITED TO THE COST AT RELEASED VALUATION BY THE ROUTE OR METHOD GIVING THE LOWEST RATE. THE GOVERNMENT'S OBLIGATION AS SHIPPER, OF COURSE, IS TO PAY THE FREIGHT. IN THE ARIZPA, 63 FED./2ND) 42 (CERTIORARI DENIED, 290 U.S. 648), AT PAGE 43, THE APPLICABLE RULE WAS STATED AS FOLLOWS:

* * * ORDINARILY, THE PRIMARY OBLIGATION TO PAY THE CARRIER'S CHARGES RESTS UPON THE SHIPPER EVEN WHEN THE BILL OF LADING IN TERMS IMPOSES A LIABILITY UPON THE CONSIGNEE. LOUISVILLE AND N.R.R.CO. V. CENTRAL IRON AND COAL CO., 265 U.S. 59, 44 SP.CT. 441, 68 L.ED. 900. AND THE OBLIGATION SURVIVES ALTHOUGH THE SHIPPER HAS ASSIGNED THE BILL OF LADING TO ANOTHER WHO RECEIVES THE GOODS. UNITED STATES V. UNITED STATES STEEL PRODUCTS CO. (D.C.) 27 F./2D) 547; MAIN ISLAND CREEK COAL CO. V. CHESAPEAKE AND OHIO RY.CO. (C.C.A.) 23 F./2D) 248; TWEEDIE TRADING CO. V. PITCH PINE LUMBER CO. (D.C.) 146 F. 162; DAVIS V. SMOKELESS FUEL CO. (C.C.A.) 196 F. 753; TWEEDIE TRADING CO. V. STRONG AND TROWBRIDGE CO. (C.C.A.) 195 F. 929.

SO THAT IT IS CLEAR THAT IF AN AGENT OF THE GOVERNMENT WITH AUTHORITY TO SHIP, DOES SHIP, IT WILL OBLIGATE THE GOVERNMENT TO PAY THE FREIGHT BOTH BY THE STATUTE OR BY THE LAW AS FORMULATED BY THE COURTS.

THE CONGRESS HAS GIVEN ITS ATTENTION TO THE POSSIBILITY OF LOSS OR DAMAGE TO AN OFFICER'S EFFECTS WHILE UNDERGOING SHIPMENT AND HAS AUTHORIZED REIMBURSEMENT UNDER SPECIFIC AND LIMITED CONDITIONS. THE ACT OF MARCH 3, 1885, 23 STAT. 350, AUTHORIZED REIMBURSEMENT FOR THE VALUE OF PRIVATE PROPERTY BELONGING TO OFFICERS OR ENLISTED MEN IN THE MILITARY SERVICE WHEN LOST OR DAMAGED UNDER TWO CONDITIONS, THE FIRST OF WHICH WAS:

WHERE THE PRIVATE PROPERTY SO LOST OR DESTROYED WAS SHIPPED ON BOARD AN UNSEAWORTHY VESSEL BY ORDER OF ANY OFFICER AUTHORIZED TO GIVE SUCH ORDER OR DIRECT SUCH SHIPMENT.

THIS ACT WAS NOT AMENDED TO PROVIDE FOR REIMBURSEMENT FOR LOSS OR DAMAGE DURING SHIPMENT OTHERWISE UNTIL THE ACT OF MARCH 4, 1915, 38 STAT. 1077, WHICH PROVIDED THAT THE ACT OF 1885---

SHALL HEREAFTER EXTEND TO COVER LOSS OF OR DAMAGE TO THE REGULATION ALLOWANCE OF BAGGAGE OF OFFICERS AND ENLISTED MEN SUSTAINED IN SHIPMENT UNDER ORDERS, TO THE EXTENT OF SUCH LOSS OR DAMAGE OVER AND ABOVE THE AMOUNT RECOVERABLE FROM THE CARRIER FURNISHING THE TRANSPORTATION.

THE SUBSTANCE OF BOTH THESE PROVISIONS WILL NOW BE FOUND IN THE ACT OF MARCH 4, 1921, 41 STAT. 1436. NOTWITHSTANDING THIS LIMIT THAT CONGRESS HAS FIXED AS TO THE LIABILITY OF THE GOVERNMENT, THE COURT IN THE FIRST OF THE QUOTED PARAGRAPHS HOLDS THAT THE GOVERNMENT, BEING UNDER OBLIGATION TO SHIP AND WITH FULL CONTROL OF THE SHIPMENT OF THE PROPERTY, CONSTITUTES THE CARRIER ITS AGENT ,AND IT WAS THEREFORE LIABLE TO THE CLAIMANT BOTH FOR THE DAMAGE TO THE PROPERTY AND FOR THE LIABILITY IN GENERAL AVERAGE.'

IF THIS IS TRUE, THE ACT OF 1885 AND THE AMENDMENT MADE BY THE ACT OF 1915, AND THE PROVISION IN THE ACT OF 1921 ARE UNNECESSARY; AND YET PRIOR TO 1885 NO REIMBURSEMENT WAS MADE ON SUCH A BASIS, AND SINCE 1885 REIMBURSEMENT HAS BEEN MADE ONLY IN ACCORD WITH THE CITED ACTS. BY THE ACT OF OCTOBER 6, 1917, 40 STAT. 389, PROVISION WAS MADE FOR REIMBURSING OFFICERS, ENLISTED MEN, AND OTHERS IN THE NAVAL SERVICE WHO MAY HEREAFTER SUFFER LOSS OF OR DAMAGE TO THEIR PERSONAL PROPERTY AND EFFECTS IN THE NAVAL SERVICE, AMONG OTHER CONDITIONS---

WHERE THE PRIVATE PROPERTY SO LOST, DESTROYED, OR DAMAGED WAS SHIPPED ON BOARD AN UNSEAWORTHY VESSEL BY ORDER OF AN OFFICER AUTHORIZED TO GIVE SUCH ORDER OR DIRECT SUCH SHIPMENT.

GENERAL-AVERAGE CONTRIBUTION IS DEFINED TO BE A CONTRIBUTION BY ALL THE PARTIES TO A SEA ADVENTURE TO MAKE GOOD THE LOSS SUSTAINED BY ONE OF THEIR NUMBER ON ACCOUNT OF SACRIFICES VOLUNTARILY MADE OF PART OF THE SHIP OR CARGO TO SAVE THE RESIDUE AND THE LIVES OF THOSE ON BOARD FROM AN IMPENDING PERIL, OR FOR EXTRAORDINARY EXPENSES NECESSARILY INCURRED BY ONE OR MORE OF THE PARTIES FOR THE GENERAL BENEFIT OF ALL THE INTERESTS EMBARKED IN THE ENTERPRISE. STAR OF HOPE, 9 WALL. 203, 228; THE EMILIA S. DEPEREZ, 22 F./2D) 585; RALLI V. TROOP, 157 U.S. 386; STEVENS AND BENECKE, TREATISES ON AVERAGE IN MARINE INSURANCE, PAGE 60; CARVER ON CARRIAGE OF GOODS BY SEA, SECTIONS 361, 366; PARSONS ON SHIPPING AND ADMIRALTY, PAGE 338; AND CONGDON ON GENERAL AVERAGE, PAGE 1.

CONTRIBUTION IN GENERAL AVERAGE IS MADE UPON THE PRINCIPLE DERIVED FROM THE ANCIENT LAW OF RHODES, THAT WHAT IS GIVEN FOR THE GENERAL BENEFIT OF ALL SHOULD BE MADE GOOD BY THE CONTRIBUTION OF ALL IN PROPORTION TO THEIR INTERESTS. DET FORENEDE DAMPSKIBS SELSHAB V. INSURANCE COMPANY OF NORTH AMERICA, 28 F./2D) 449, AFFIRMED C.C.A. 31 F./2D) 658, CERTIORARI DENIED, 280 U.S. 571; MCANDREWS V. THATCHER, 3 WALL. 347; AND FOWLER V. RATHBONES, 12 ID. 102.

THE OBLIGATION TO CONTRIBUTE IN GENERAL AVERAGE RESTS ON THE VESSEL, THE CARGO, THE FREIGHT, AND THE OWNERS OF SUCH INTERESTS. 58 C.J. 622. "GENERAL AVERAGE MEANS THAT CONTRIBUTION TO WHICH THE OWNERS OF THE SHIP, CARGO, AND FREIGHT BECOME LIABLE AMONG THEMSELVES, * * *.' LYON V. ALVORD, 18 CONN. 66, 74. THE CASE OF BACKUS V. COYNE, 35 MICH. 5, 7, QUOTES FROM SCAIFE V. TOBIN, 3 B. AND AD. 523, THAT,"A CONSIGNEE, WHO IS THE ABSOLUTE OWNER OF THE GOODS, IS LIABLE TO PAY GENERAL AVERAGE, BECAUSE THE LAW THROWS UPON HIM THAT LIABILITY. THERE IS NO OTHER PERSON TO PAY IT. * * * THERE IS NO DOUBT THAT AN ABSOLUTE OWNER OF GOODS IS LIABLE TO PAY GENERAL AVERAGE.' IN THE CASE OF HOBSON ET AL. V. LORD, 92 U.S. 397, 402, THE COURT STATED THAT- -

EXPENSES INCURRED OF THE CHARACTER MENTIONED, OR SACRIFICES MADE ON ACCOUNT OF ALL THE ASSOCIATED INTERESTS BY THE OWNERS OF EITHER, TO SAVE THE ADVENTURE FROM A COMMON PERIL, CONSTITUTE THE PROPER OBJECTS OF GENERAL AVERAGE; AND THE OWNERS OF THE OTHER INTERESTS ARE BOUND TO MAKE CONTRIBUTION FOR THE SAME, IN THE PROPORTION OF THE VALUE OF THEIR SEVERAL INTERESTS, * * *.

THE COURT STATED IN JOHNSON AND HIGGINS V. CHARLES F. GARRIGUES CO. ET AL., 30 F./2D) 251, 253, THAT---

CONTRIBUTION IN GENERAL AVERAGE REQUIRED, WHERE THE OWNERSHIP OF THE GOODS IS ESTABLISHED IN A RESPONDENT, AND, ON TENDER AT DESTINATION OF THE SOUND GOODS WHICH HAVE BEEN SAVED, DELIVERY IS ACCEPTED. * * *

THIS CASE SEEMS TO BE AN APPLICATION OF THE DOCTRINE TO AN UNUSUAL, IF NOT AN EXTREME, CASE AS THE "OWNER" HELD LIABLE PURCHASED, AFTER THE DAMAGE TO THE VESSEL, THE SOUND PORTION OF THE CARGO, THE COURT REMARKING AT PAGE 252:

* * * BUT THIS SUIT WILL LIE IN PERSONAM, RESTING UPON PROOF THAT DELIVERY WAS ACCEPTED BY APPELLANTS MAY 7, 1920, OF SUCH PART OF THE NITRATE AS WAS IN SOUND CONDITION, AND, HAVING ACCEPTED THE BENEFITS, WITH KNOWLEDGE THAT THE FIRE HAD OCCURRED AND THAT SALVAGE CLAIMS AND OTHER GENERAL AVERAGE EXPENSES WERE INCURRED, THERE IS AN IMPLIED AGREEMENT TO PAY IN CONTRIBUTION. UNITED STATES V. CORNELL STEAMBOAT CO., 202 U.S. 184; 26 S.CT. 648, 50 L.ED. 987; THE DAVIS, 10 WALL. 15, 19 L.ED. 875; MARU NAVIGATION CO. V. SOCIETA COM. ETC. (DC) 271 F. 97; DUPONT DE NEMOURS V. VANCE, 19 HOW. 162, 15 L.ED. 584.

THE TEXT WRITERS ARE OF THE SAME OPINION ON THE SUBJECT, THAT THE OWNER OF PROPERTY IS LIABLE IN GENERAL AVERAGE. SEE PARSONS ON SHIPPING AND ADMIRALTY, PAGE 472, WHEREIN IT IS STATED AT,"THE OWNERS OF THE PROPERTY ON WHICH THE CONTRIBUTION IS PROPERLY ASSESSED ARE LIABLE FOR IT IN AN ACTION BY THE PARTY BY WHOM IT IS RECEIVABLE.' CARVER ON CARRIAGE OF GOODS BY SEA, SECTION 415, WITH RESPECT TO THE MATTER OF WHO IS RESPONSIBLE TO CONTRIBUTE IN GENERAL AVERAGE STATES T,"THE PRINCIPLE IS THAT THOSE WHO HAVE RECEIVED BENEFIT MUST CONTRIBUTE; EACH IN PROPORTION TO THE BENEFIT HE HAS RECEIVED.' TO THE SAME EFFECT IS CONGDON ON GENERAL AVERAGE, PAGE 153, WHEREIN THE STATEMENT IS MADE THAT,"AN OWNER OF CARGO IS LIABLE AT COMMON LAW, ON AN IMPLIED PROMISE, FOR GENERAL AVERAGE CONTRIBUTION, AND THE SHIPOWNER HAS A MARITIME LIEN ON THE CARGO FOR SAME * * *.' SEE ALSO, THE EMILIA S. DE PEREZ, 22 F./2D) 585, AND CASES THEREIN CITED. THE RIGHT TO, AND LIABILITY FOR, GENERAL AVERAGE CONTRIBUTION IS ENTIRELY INDEPENDENT OF THE CONTRACT OF CARRIAGE. CHARTER SHIPPING CO. V. BOWRING, ET AL., 281 U.S. 515; THE LEWIS H. GOWARD, 34 F/2D) 791; SWIFT AND CO. V. GLASGOW STEAM SHIPPING CO. LTD., ET AL., 280 FED. 910; SONSMITH V. THE J. P. DONALDSON, 21 ID. 671 (REVERSED ON OTHER GROUNDS, 167 U.S. 599); AND THE JOHN PERKINS, 13 F.CAS.NO. 7,360. IN THE CASE OF THE ROANOKE, 59 FED. 161, THE COURT STATED THAT GENERAL AVERAGE IS ASIDE FROM THE CONTRACT RELATION FOR CARRIAGE, AND QUOTED IN CONNECTION THEREWITH FROM CROOKS V. ALLAN, 5 Q.B.DIV. 38, 4 ASP. 216, AND SCHMIDT V. STEAMSHIP CO. 45 LAW J.Q.B. 646, AT,"THE OFFICE OF THE BILL OF LADING IS TO PROVIDE FOR THE RIGHTS AND LIABILITIES OF THE PARTIES IN REFERENCE TO THE CONTRACT TO CARRY, AND IS NOT CONCERNED WITH LIABILITIES TO CONTRIBUTE IN GENERAL AVERAGE.' SEE, ALSO, CARVER ON CARRIAGE OF GOODS BY SEA, SECTION 364, AND QUOTATION THEREIN FROM THE COURT'S OPINION IN THE CASE OF BURTON V. ENGLISH, 12 Q.B.D. 218, 220, THAT,"I DO NOT THINK THAT IT (THE RIGHT TO CONTRIBUTION) FORMS ANY PART OF THE CONTRACT TO CARRY, AND THAT IT DOES NOT ARISE FROM ANY CONTRACT AT ALL, BUT FROM THE OLD RHODIAN LAWS, AND HAS BECOME INCORPORATED INTO THE LAW OF ENGLAND AS THE LAW OF THE OCEAN.'

THE AUTHORITIES CITED ABOVE PLACE THE LIABILITY FOR CONTRIBUTION IN GENERAL AVERAGE ON THE OWNER OF THE PROPERTY AND HOLD THAT THE OBLIGATION TO CONTRIBUTE IN GENERAL AVERAGE IS ENTIRELY INDEPENDENT OF THE CONTRACT OF CARRIAGE.

SO THAT WERE THE TRANSACTION BETWEEN PRIVATE INDIVIDUALS, AN EMPLOYER AGREEING TO SHIP THE EFFECTS OF AN EMPLOYEE TO A DISTANT PLACE FOR THE PERFORMANCE OF SERVICES WOULD BE HELD LIABLE ONLY FOR THE FREIGHT AND THE OWNER OF THE EFFECTS, THE EMPLOYEE, WOULD BE LIABLE TO CONTRIBUTE IN GENERAL AVERAGE. THE COURT OF CLAIMS DOES NOT MAKE PLAIN HOW OR WHY THE RULE IS DIFFERENT IF THE GOVERNMENT IS THE EMPLOYER, THE AUTHORITY TO PAY THE TRANSPORTATION CHARGES IS AUTHORIZED BY STATUTE, AND THE SELECTION OF THE ROUTE IS REQUIRED BY REGULATION TO BE THAT COSTING THE LEAST IN FREIGHT CHARGES.

THE EFFECTS ARE THE PERSONAL PROPERTY OF THE OFFICERS. THEY ARE UNDER NO DUTY OR OBLIGATION TO TURN THEM OVER TO THE GOVERNMENT FOR SHIPMENT. THEY DO SO, FROM CHOICE, TO OBTAIN THE BENEFIT OF THE GOVERNMENT PAYING THE TRANSPORTATION COSTS, THEY DO SO SUBJECT TO THE STATUTE AND REGULATIONS GOVERNING THE MATTER, OF WHICH THEY ARE CHARGEABLE WITH NOTICE, AND, THEREFORE, ASSUME ANY ADDITIONAL RISK OR HAZARDS INCIDENT TO THE MEANS OF TRANSPORTATION REQUIRED BY THE REGULATIONS. THE GOVERNMENT WOULD APPEAR TO BE AT MOST MERELY A BAILEE OF THE PROPERTY FOR THE BENEFIT OF THE BAILOR, AND, ASIDE FROM STATUTE, CONTRACTUALLY LIABLE ONLY FOR THE BREACH OF AN IMPLIED OBLIGATION TO EXERCISE ORDINARY CARE. NEITHER THE STATUTES NOR REGULATIONS PURPORT TO MAKE THE GOVERNMENT AN INSURER OF SUCH PROPERTY VOLUNTARILY BAILED TO THE GOVERNMENT FOR TRANSPORTATION FOR THE BENEFIT OF THE BAILOR. THAT SUCH PROPERTY MAY NOT LEGALLY BE VIEWED AS THE PROPERTY OF THE GOVERNMENT DURING TRANSPORTATION SEE OREGON WASHINGTON RAILROAD AND NAVIGATION COMPANY V. UNITED STATES, 255 U.S. 339, AND UNITED STATES V. GALVESTON, HARRISBURG AND SAN ANTONIO RAILWAY COMPANY, 279 U.S. 401 HOLDING THE GOVERNMENT NOT ENTITLED TO LAND GRANT REDUCTIONS ON SHIPMENT OF OFFICERS' EFFECTS AND PRIVATE MOUNTS TRANSPORTED AT GOVERNMENT EXPENSE BECAUSE NOT THE PROPERTY OF THE UNITED STATES. IT SEEMS CLEAR, THEREFORE, THAT THE UNITED STATES COULD NOT BE HELD DIRECTLY LIABLE FOR GENERAL AVERAGE ON SUCH SHIPMENTS EITHER UNDER THE CONTRACT OF AFFREIGHTMENT OR ON THE THEORY THAT THE GOVERNMENT IS OWNER OF THE GOODS. NOT BEING LIABLE PRIMARILY, IT IS NOT CLEAR HOW, IN THE ABSENCE OF STATUTE, THE GOVERNMENT IS LIABLE OVER TO THE OWNER UNDER THE GRATUITOUS BAILMENT RELATIONSHIP.

THE HOLDING IN THE HODGES CASE BEING CONTRARY TO THE UNIFORM PRACTICE FROM THE BEGINNING OF THE GOVERNMENT, KNOWN TO AND ACQUIESCED IN BY THE CONGRESS; SUBJECTING THE GOVERNMENT WITHOUT ANY CHANGE IN THE STATUTES TO THE PAYMENT OF SUBSTANTIAL AMOUNTS NOT HERETOFORE PAID; AND BEING CONTRARY TO THE HOLDING OF THE SUPREME COURT AND ALL FEDERAL DISTRICT AND CIRCUIT COURTS OF APPEALS, THAT THE OWNER OF THE PROPERTY IS LIABLE TO CONTRIBUTE IN GENERAL AVERAGE, THIS OFFICE DIRECTED DISALLOWANCE IN FAHERTY'S CASE. UNTIL THE MATTER HAS HAD FURTHER JUDICIAL CONSIDERATION OR THERE IS LEGISLATION AFFIRMATIVELY AUTHORIZING SUCH PAYMENTS, THIS OFFICE MAY NOT CONSTRUE APPROPRIATION ACTS AUTHORIZING THE PAYMENT OF TRANSPORTATION CHARGES ON THE PERSONAL EFFECTS OF OFFICERS, ENLISTED MEN, AND EMPLOYEES ON PERMANENT CHANGE OF STATION, AS AVAILABLE TO PAY THE OBLIGATION OF THE OWNER OF THE EFFECTS TO CONTRIBUTE IN GENERAL AVERAGE.