B-124899, NOV. 14, 1955

B-124899: Nov 14, 1955

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YOU WERE DETACHED FROM DUTY WITH AMPHIBIOUS GROUP ONE AND ASSIGNED TO NAVAL WAR COLLEGE. AT YOUR REQUEST YOUR HOUSEHOLD GOODS WERE SHIPPED FROM SAN DIEGO TO NEWPORT IN TWO LOTS. SINCE YOUR NET WEIGHT ALLOWANCE WAS 9. IT IS YOUR CONTENTION (IN YOUR LETTER OF APRIL 15. YOU STATE THAT UNDER CONTROLLING REGULATIONS THE AUTHORIZED WEIGHT ALLOWANCE IS A NET WEIGHT (TO BE INCREASED ON A FIXED PERCENTAGE BASIS FOR PACKING DEPENDING ON THE MODE OF TRANSPORTATION USED). WHILE YOU ACKNOWLEDGE THAT SUCH CHANGE OCCURRED AFTER YOUR SHIPMENT WAS MADE. AT THE TIME HERE INVOLVED PARAGRAPH 8001-1 OF THE JOINT TRAVEL REGULATIONS PROVIDED THAT WHEN ANY PORTION OF THE SHIPMENT IS BY RAIL THE WEIGHT ALLOWANCE WOULD BE INCREASED BY 25 PERCENT (OR PACKED WEIGHT REDUCED BY ONE-FIFTH) TO COVER THE WEIGHT OF THE MATERIALS USED IN PACKING.

B-124899, NOV. 14, 1955

TO COMMANDER EDWIN C. ENSLEY, USN:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY YOUR LETTER OF JUNE 23, 1955, REQUESTING REVIEW OF THE SETTLEMENT OF JANUARY 20, 1955, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $345 COLLECTED FROM YOU AS THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD GOODS FROM SAN DIEGO, CALIFORNIA, TO NEWPORT, RHODE ISLAND.

BY CHIEF OF NAVAL PERSONNEL ORDERS DATED APRIL 23, 1953, YOU WERE DETACHED FROM DUTY WITH AMPHIBIOUS GROUP ONE AND ASSIGNED TO NAVAL WAR COLLEGE, NEWPORT, RHODE ISLAND, FOR DUTY. AT YOUR REQUEST YOUR HOUSEHOLD GOODS WERE SHIPPED FROM SAN DIEGO TO NEWPORT IN TWO LOTS, THE FIRST BY EXPRESS AND THE SECOND BY VAN. SINCE YOUR NET WEIGHT ALLOWANCE WAS 9,000 POUNDS, OF WHICH YOU EXHAUSTED 54 POUNDS (68 POUNDS LESS ONE-FIFTH FOR PACKING FOR RAIL EXPRESS SHIPMENT) BY THE FIRST SHIPMENT, THERE REMAINED A BALANCE OF 8,946 POUNDS PLUS FIVE PERCENT FOR PACKING FOR VAN SHIPMENT (447 POUNDS) AND 100 POUNDS PROFESSIONAL BOOKS, OR 9,493 POUNDS. SINCE THE VAN SHIPMENT WEIGHTED 11,620 POUNDS YOU EXCEEDED YOUR ALLOWANCE BY 2,127 POUNDS, RESULTING IN AN EXCESS COST OF $345. IT IS YOUR CONTENTION (IN YOUR LETTER OF APRIL 15, 1955, TO THE JUDGE ADVOCATE GENERAL OF THE NAVY) THAT THE GREATER PORTION OF THE EXCESS WEIGHT RESULTED FROM THE FACT THAT THE PACKING FOR THE VAN SHIPMENT EXCEEDED THE FIVE PERCENT ALLOWANCE. YOU STATE THAT UNDER CONTROLLING REGULATIONS THE AUTHORIZED WEIGHT ALLOWANCE IS A NET WEIGHT (TO BE INCREASED ON A FIXED PERCENTAGE BASIS FOR PACKING DEPENDING ON THE MODE OF TRANSPORTATION USED). YOU OBJECT TO THE METHOD OF DETERMINING EXCESS WEIGHT IN YOUR CASE, IT BEING YOUR VIEW THAT THAT METHOD MAY RESULT IN EXCESS COST CHARGEABLE TO THE OWNER ALTHOUGH THE NET WEIGHT OF HIS EFFECTS MAY BE LESS THAN HIS AUTHORIZED NET WEIGHT ALLOWANCE. YOU REFER ALSO TO A CHANGE IN REGULATIONS AUTHORIZING A DEVIATION FROM PRESCRIBED ALLOWANCES, AND WHILE YOU ACKNOWLEDGE THAT SUCH CHANGE OCCURRED AFTER YOUR SHIPMENT WAS MADE, YOU EXPRESS THE BELIEF THAT THE LACK OF SPECIFIC REGULATIONS SHOULD NOT PREVENT AN EQUITABLE ADJUSTMENT OF YOUR CLAIM.

PARAGRAPH 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 814, PROVIDES FOR THE TRANSPORTATION (INCLUDING PACKING AND CRATING) OF HOUSEHOLD EFFECTS TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES. AT THE TIME HERE INVOLVED PARAGRAPH 8001-1 OF THE JOINT TRAVEL REGULATIONS PROVIDED THAT WHEN ANY PORTION OF THE SHIPMENT IS BY RAIL THE WEIGHT ALLOWANCE WOULD BE INCREASED BY 25 PERCENT (OR PACKED WEIGHT REDUCED BY ONE-FIFTH) TO COVER THE WEIGHT OF THE MATERIALS USED IN PACKING, AND THAT WHEN THE SHIPMENT WAS BY VAN THE ALLOWANCE WOULD BE INCREASED BY FIVE PERCENT. THE REGULATIONS FURTHER PROVIDE (SAME PARAGRAPH) THAT, WITH ORDINARY PACKING AND CRATING METHODS, HOUSEHOLD EFFECTS OF SERVICE PERSONNEL NOT IN EXCESS OF THE WEIGHT LIMITS PRESCRIBED MAY BE SHIPPED AT GOVERNMENT EXPENSE. WEIGHT ALLOWANCES, DESIGNATED AS ACTUAL NET WEIGHTS AUTHORIZED FOR SHIPMENT, ARE SET FORTH FOR VARIOUS RANKS AND GRADES, AND PROVISION IS MADE FOR A PERCENTAGE INCREASE TO ALLOW FOR PACKING AND CRATING. THE REGULATIONS CONTEMPLATE THE SHIPMENT AT GOVERNMENT EXPENSE OF HOUSEHOLD GOODS, AS PACKED FOR SHIPMENT, NOT TO EXCEED AN OVER-ALL WEIGHT ALLOWANCE OF WHICH THE NET WEIGHT OF THE HOUSEHOLD GOODS IS BUT ONE COMPONENT PART. THE PERCENTAGE INCREASE ALLOWED FOR PACKING AND CRATING IS NOT INTENDED TO MARCH, POUND FOR POUND, THE ACTUAL WEIGHT OF THE MATERIALS USED IN PACKING AND CRATING. THAT INCREASE IS GENERALLY ADEQUATE, BUT, AT LEAST TO SOME EXTENT, THE INCREASE IN WEIGHT CAUSED BY PACKING AND CRATING DEPENDS UPON THE CHARACTER OF THE EFFECTS SHIPPED. WEIGHTS IN EXCESS OF THE MAXIMUM OVER-ALL WEIGHT FIXED BY THE REGULATIONS PROPERLY ARE CHARGEABLE TO THE SHIPPER.

AS INDICATED ABOVE, THE NET WEIGHT ALLOWANCE REMAINING AFTER YOUR RAIL SHIPMENT WAS 8,946 POUNDS. THAT BALANCE INCREASED BY FIVE PERCENT FOR PACKING FOR VAN SHIPMENT (447 POUNDS) PLUS 100 POUNDS OF PROFESSIONAL BOOKS TOTALS 9,493 POUNDS. THAT WAS YOUR MAXIMUM WEIGHT ALLOWANCE AUTHORIZED TO BE SHIPPED BY VAN. YOUR VAN SHIPMENT WEIGHED 11,620 POUNDS, 2,127 POUNDS IN EXCESS OF THE MAXIMUM AUTHORIZED WEIGHT. THAT METHOD OF COMPUTING EXCESS WEIGHT IS IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS AND WHILE IT MAY RESULT IN THE MEMBER BEING CHARGED FOR EXCESS WEIGHT OCCASIONED BY THE USE OF EXCESSIVE PACKING OR CRATING, THE REGULATIONS IN EFFECT AT THE TIME OF YOUR SHIPMENT MAKE NO PROVISION FOR AN ADJUSTMENT ON THE BASIS THAT THE PACKING AND CRATING USED EXCEEDED THE REQUIREMENTS OF THE PARTICULAR SHIPMENT.

AUTHORITY TO PERMIT DEVIATIONS FROM THE PRESCRIBED ALLOWANCES ON ACCOUNT OF EXCESSIVE TARE WEIGHT WAS FIRST PROMULGATED BY CHANGE 17, DATED NOVEMBER 1, 1953, TO PARAGRAPH 8001-1, JOINT TRAVEL REGULATIONS,SUBSEQUENT TO THE TIME THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS WAS COMPLETED. WHILE REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE RIGHTS, THEY MAY NOT BE AMENDED TO DECREASE RETROACTIVELY ALLOWANCES PREVIOUSLY AUTHORIZED (COMPARE UNITED STATES V. DAVIS, 132 U.S. 334), AND NO LEGAL BASIS IS PERCEIVED FOR INCREASING RETROACTIVELY THE OBLIGATIONS OF THE GOVERNMENT. SEE 32 COMP. GEN. 315; COMPARE 21 COMP. DEC. 482; 10 COMP. GEN. 242; 15 ID. 869; 17 ID. 566.

SINCE THE WEIGHT OF THE HOUSEHOLD GOODS AS SHIPPED EXCEEDED YOUR WEIGHT ALLOWANCE PLUS THE AUTHORIZED PERCENTAGE INCREASE, YOU WERE PROPERLY CHARGED WITH THE EXCESS COST OF THE SHIPMENT IRRESPECTIVE OF THE ACTUAL WEIGHT OF THE MATERIAL USED IN PACKING AND CRATING. ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF YOUR CLAIM.