B-126577, JAN. 30, 1956

B-126577: Jan 30, 1956

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21. THE RECORDS INDICATE THAT THE FOLLOWING CIRCUMSTANCES ARE INVOLVED IN YOUR CLAIM. RECITING THAT IT WAS ISSUED UNDER CONTRACT NO. IT IS ADMITTED THAT ALL SERVICES PERFORMED PRIOR TO DECEMBER 24. INCLUDING THE MOVING OF THE GOODS INTO STORAGE AND THE STORAGE TO THAT DATE WERE PAID FOR BY CAPTAIN CHURCHILL. RECEIPT OF CHANGE WAS ACKNOWLEDGED ON DECEMBER 29. CAPTAIN CHURCHILL WAS TRANSFERRED FROM THE MARINE RESERVE TRAINING COMMAND. IT SEEMS APPARENT THAT IT WAS ISSUED PURSUANT TO THE OFFICER'S APPLICATION OF JANUARY 2. IT MUST HAVE BEEN ISSUED ON OR AFTER JUNE 24. REGULATIONS ISSUED PURSUANT TO THE PROVISIONS OF SECTION 303 (C) ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

B-126577, JAN. 30, 1956

TO O. J. GLENN AND SON, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1955, REQUESTING REVIEW OF THE SETTLEMENT DATED DECEMBER 6, 1955, WHICH DISALLOWED YOUR CLAIM FOR $418.10, AS THE CHARGES FOR STORAGE AND HAULING OF THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF CAPTAIN JOHN CHURCHILL, JR., USMC, DURING THE PERIOD FROM DECEMBER 24, 1951, TO JUNE 24, 1953. ALSO, YOUR LETTER OF THE SAME DATE TO HONORABLE HERBERT H. LEHMAN, REGARDING THE MATTER HAS BEEN FORWARDED HERE.

THE RECORDS INDICATE THAT THE FOLLOWING CIRCUMSTANCES ARE INVOLVED IN YOUR CLAIM. YOU ENTERED INTO CONTRACT NO. N140S-18542B, DATED SEPTEMBER 22, 1950, WITH THE UNITED STATES NAVY PURCHASING OFFICE IN NEW YORK CITY, FOR HAULING, PACKING, AND STORAGE OF EFFECTS OF UNIFORMED PERSONNEL AS ORDERED DURING THE PERIOD FROM SEPTEMBER 22, 1950, TO JUNE 30, 1951, EXTENDED TO AUGUST 31, 1951, BY AMENDMENT NO. 2. ON OR ABOUT OCTOBER 20, 1951, AS REFLECTED IN THE WEIGHER'S CERTIFICATE AND IN THE POSTSCRIPT ON YOUR LETTER TO HONORABLE HERBERT H. LEHMAN, CAPTAIN CHURCHILL ENGAGED YOU TO PICK UP HIS EFFECTS AT HIS HOME IN ROCHESTER, NEW YORK, AND TO STORE THEM IN YOUR WAREHOUSE IN BUFFALO, NEW YORK. AN ORDER BEARING DATE OF DECEMBER 24, 1951, AND RECITING THAT IT WAS ISSUED UNDER CONTRACT NO. N140S-18542B, PURPORTED TO AUTHORIZE YOU TO CONTINUE THE STORAGE OF THE EFFECTS OF CAPTAIN CHURCHILL FOR THREE CONSECUTIVE PERIODS OF SIX MONTHS, BEGINNING DECEMBER 24, 1951, AND ENDING ON JUNE 24, 1953, AND TO HAUL THE EFFECTS FROM YOUR WAREHOUSE TO THE RESIDENCE OF CAPTAIN CHURCHILL ON THE LATTER DATE. IT IS ADMITTED THAT ALL SERVICES PERFORMED PRIOR TO DECEMBER 24, 1951, INCLUDING THE MOVING OF THE GOODS INTO STORAGE AND THE STORAGE TO THAT DATE WERE PAID FOR BY CAPTAIN CHURCHILL. ALSO, THE RECORD SHOWS THAT BY PERMANENT CHANGE OF STATION ORDERS NO. P16-4, DATED DECEMBER 22, 1951, RECEIPT OF CHANGE WAS ACKNOWLEDGED ON DECEMBER 29, 1951, CAPTAIN CHURCHILL WAS TRANSFERRED FROM THE MARINE RESERVE TRAINING COMMAND, U.S. NAVAL AIR STATION, NIAGARA FALLS, NEW YORK, TO THE MARINE CORPS AIR STATION, CHERRY POINT, NORTH CAROLINA, AND THAT ON THE BASIS OF SUCH ORDERS CAPTAIN CHURCHILL MADE APPLICATION ON JANUARY 2, 1952, FOR COMMERCIAL STORAGE OF HIS HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE FOR A PERIOD OF SIX MONTHS BEGINNING DECEMBER 24, 1951, AND ENDING JUNE 24, 1952.

ALTHOUGH AS INDICATED ABOVE, THE ORDERS PURPORTING TO AUTHORIZE YOU TO STORE CAPTAIN CHURCHILL'S EFFECTS FROM DECEMBER 24, 1951, TO JUNE 24, 1953, AND TO HAUL THE EFFECTS TO THE OFFICER'S RESIDENCE, BORE THE DATE OF DECEMBER 24, 1951, IT SEEMS APPARENT THAT IT WAS ISSUED PURSUANT TO THE OFFICER'S APPLICATION OF JANUARY 2, 1952, AND, SINCE IT INCLUDED THE HAULING TO BE EFFECTED ON JUNE 24, 1953, IT MUST HAVE BEEN ISSUED ON OR AFTER JUNE 24, 1953.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 814, REENACTING PRIOR STATUTORY PROVISIONS, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES SHALL, UPON CHANGE OF STATION, BE ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE AND UNPACKING OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR) AS AUTHORIZED BY REGULATIONS PRESCRIBED BY THE HEADS OF THE DEPARTMENTS CONCERNED. REGULATIONS ISSUED PURSUANT TO THE PROVISIONS OF SECTION 303 (C) ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 8006-1A AUTHORIZES TEMPORARY STORAGE AFTER PICKUP BUT BEFORE SHIPMENT, WHILE THE SHIPMENT IS IN TRANSIT OR EN ROUTE AND STORAGE IS NOT FURNISHED FREE OF CHARGE BY THE CARRIER, AND AFTER ARRIVAL AT THE CARRIER'S DESTINATION BUT BEFORE DELIVERY TO THE OWNER'S QUARTERS. PARAGRAPH 8006-2A AUTHORIZES NONTEMPORARY STORAGE IN A GOVERNMENT INSTALLATION ONLY. IN VIEW OF SUCH REGULATIONS IT REGULARLY HAS BEEN HELD THAT COMMERCIAL STORAGE CAN BE FURNISHED ONLY ON A TEMPORARY BASIS AND THEN ONLY WHEN NECESSARY AS AN INCIDENT TO A SHIPMENT CURRENTLY IN PROCESS OR IN IMMEDIATE PROSPECT. 34 COMP. GEN. 45, QUOTING THE SYLLABUS, IT WAS HELD:

"THERE IS NO AUTHORITY IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, OR IN THE REGULATIONS PROMULGATED THEREUNDER, TO OBLIGATE GOVERNMENT FUNDS FOR TEMPORARY COMMERCIAL STORAGE OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES WHERE THE SOLE MOVEMENT OF THE EFFECTS INCIDENT TO AN ORDERED CHANGE OF STATION IS FROM RESIDENCE TO LOCAL STORAGE, AND EXCEPTIONS TAKEN TO PAYMENTS FOR SUCH STORAGE WILL BE CONTINUED, NOTWITHSTANDING SHIPPING OFFICERS AND INDIVIDUALS WHO PROCURED THE COMMERCIAL STORAGE ACTED IN GOOD FAITH AND IN COMPLIANCE WITH THE ADMINISTRATIVE INTERPRETATION OF THE REGULATIONS.'

IN 33 COMP. GEN. 470, AT 474, IT WAS STATED:

"* * * WHERE HOUSEHOLD EFFECTS ARE PLACED IN STORAGE AT POINT OF ORIGIN SOLELY UPON THE OWNER'S OWN RESPONSIBILITY, AND NO SHIPMENT IS EFFECTED, NO PART OF SUCH STORAGE MAY BE REGARDED AS TEMPORARY STORAGE AT GOVERNMENT EXPENSE, IRRESPECTIVE OF HIS INTENTIONS AT TIME OF STORAGE. * * *"

IN THE PRESENT CASE IT IS OBVIOUS THAT THE COMMERCIAL STORAGE AND HAULING IN QUESTION WERE NOT INCURRED INCIDENT TO AN AUTHORIZED SHIPMENT OF THE OFFICER'S HOUSEHOLD EFFECTS SINCE NO SHIPMENT WAS CONTEMPLATED OR MADE AND, THEREFORE, THAT THE STORAGE AND HAULING WERE NOT AUTHORIZED UNDER APPLICABLE LAW AND REGULATIONS. FURTHERMORE THERE IS A WELL-RECOGNIZED DISTINCTION BETWEEN THE LIABILITY OF INDIVIDUALS AND THE GOVERNMENT WITH RESPECT TO THEIR AGENTS, IN THAT THE FORMER ARE LIABLE TO THE EXTENT OF THE POWERS OSTENSIBLY GIVEN TO THEIR AGENTS WHILE THE GOVERNMENT IS LIABLE ONLY TO THE EXTENT OF THE POWERS ACTUALLY GIVEN ITS AGENTS BY LAW. THUS, FOR THE REASONS INDICATED ABOVE AND SINCE CONTRACT NO. N140S-18542B, AS AMENDED, HAD EXPIRED BY THE LIMITATIONS SPECIFIED THEREIN, THE ORDER BEARING DATE OF DECEMBER 24, 1951, GAVE RISE TO NO VALID OBLIGATION OF THE GOVERNMENT TO PAY FOR STORAGE AND HAULING OF CAPTAIN CHURCHILL'S HOUSEHOLD EFFECTS. FURTHERMORE, SINCE IT APPEARS THAT THE ORDER IN THIS CASE WAS NOT ISSUED UNTIL ON OR AFTER JUNE 24, 1953, AFTER THE CHARGES HAD ACCRUED, IT CAN HARDLY BE SAID THAT YOU RELIED UPON IT AS A PROPER ORDER SINCE THE CONTRACT UNDER WHICH IT WAS PURPORTEDLY ISSUED HAD EXPIRED THERETOFORE. MOREOVER, SINCE YOU KNEW THAT CONTRACT NO. N140S-18542B HAD EXPIRED PRIOR TO THE TIME THE ORDER WAS ISSUED ON OR AFTER JUNE 24, 1953, AND SINCE YOU HAD A CONTRACT WITH CAPTAIN CHURCHILL FOR THE SERVICES COVERED BY THAT ORDER, IT DOES NOT APPEAR THAT THE CONTRACT WITH CAPTAIN CHURCHILL WAS CANCELLED BY THE SAID ORDER.