B-127084, MAY 1, 1956

B-127084, MAY 1, 1956

TO LIEUTENANT COLONEL JOHN W. PAGE, ACC:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1956, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF JANUARY 13, 1956, WHICH DISALLOWED YOUR CLAIM FOR $126.25, REPRESENTING THE AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD GOODS.

BY PARAGRAPH 11, SPECIAL ORDERS NO. 23, DATED JANUARY 30, 1951, YOU WERE TRANSFERRED FROM DUTY IN THE PHILIPPINES TO DUTY IN WASHINGTON, D.C. AT YOUR REQUEST, YOUR HOUSEHOLD GOODS, ESTIMATED TO WEIGH 16,250 POUNDS, WERE PACKED AND SHIPPED IN TWO LOTS FROM MANILA, PHILIPPINE ISLANDS, TO CHEVERLY, MARYLAND, WHERE THEY WERE UNPACKED. ALSO, 7,940 POUNDS OF YOUR HOUSEHOLD EFFECTS WERE SHIPPED FROM MEMPHIS, TENNESSEE, TO CHEVERLY, MARYLAND, VIA CAMERON, VIRGINIA, AND UNPACKED AT DESTINATION. SINCE THE SHIPMENTS EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE THE DEPARTMENT OF THE ARMY CONCLUDED THAT THE LATTER SHIPMENT, THAT IS, THE SHIPMENT FROM MEMPHIS TO CHEVERLY (GOVERNMENT BILLS OF LADING NOS. WW-8-789-969, APRIL 16, 1950 (1), AND WV-1-629 974, MAY 2, 1951) INVOLVED AN EXCESS COST OF $254.91. THE SUM OF $126.25 WAS COLLECTED FROM YOU, LEAVING A BALANCE OF $128.66.

IN YOUR PRESENT LETTER YOU STATE (WITH RESPECT TO THE SHIPMENT FROM MANILA) THAT YOUR HOUSEHOLD EFFECTS WERE NOT WEIGHED AND THAT THE WEIGHTS USED IN COMPUTING EXCESS COST WERE BASED ON ESTIMATES. THEREFORE, YOU REQUEST INFORMATION AS TO (1) HOW IT HAS BEEN SHOWN BEYOND A REASONABLE DOUBT THAT, IN THE ABSENCE OF SCALE WEIGHING, YOUR EFFECTS WEIGHED AS MUCH AS ESTIMATED; (2) WHAT CONSIDERATION WAS GIVEN TO THE FACT THAT DESPITE YOUR REQUEST FOR SCALE WEIGHING, NO ACTUAL WEIGHING WAS ACCOMPLISHED, AND (3) WHAT CONSIDERATION WAS GIVEN TO THE FACT THAT THE FINDINGS OF THE BOARD OF OFFICERS APPOINTED TO CONSIDER YOUR CASE WAS DISAPPROVED BY THE CONVENING AUTHORITY.

WITH RESPECT TO THE SHIPMENT FROM MANILA, THE RECORD SHOWS THAT THE GOVERNMENT PAID THE CHARGES FOR PACKING, SHIPMENT, AND UNPACKING OF YOUR HOUSEHOLD EFFECTS ON THE BASIS THAT THEY WEIGHED 16,250 POUNDS. THE GOVERNMENT BILLS OF LADING (WV-3-057-050, FEBRUARY 23, 1951; WV-3 057-807, MARCH 6, 1951, AND WV-3-293-160, APRIL 6, 1951) ON WHICH THE SHIPMENT MOVED FROM SAN FRANCISCO, CALIFORNIA, TO CAMERON, VIRGINIA, AND FROM THE LATTER POINT TO CHEVERLY, MARYLAND, SHOW THAT THE SHIPMENT CONSISTED OF SEVEN HOUSEHOLD GOODS SHIPPING BOXES WEIGHING 2,200 POUNDS EACH (15,400 POUNDS), AND ONE BOX WEIGHING 850 POUNDS. THE TRANSPORTATION OFFICER, HEADQUARTERS 8133RD ARMY UNIT, APO 928, FURNISHED A STATEMENT THAT THE SEVEN LARGE BOXES WERE NOT WEIGHED BECAUSE OF THE NONAVAILABILITY OF SCALES IN THE MANILA AREA, PHILIPPINES COMMAND; THAT THE WEIGHT OF SIMILAR SHIPMENTS ORIGINATING FROM ALL ARMY UNITS IN THAT AREA IS ESTIMATED, AND THAT THE STANDARD SIZE HOUSEHOLD GOODS SHIPPING BOX WAS DETERMINED TO WEIGHT APPROXIMATELY 12 POUNDS TO THE CUBIC FOOT. THE BOARD OF OFFICERS TO WHICH YOU REFER CONVENED ON FEBRUARY 4, 1953, AND RECONVENED ON MARCH 16, 1953. THE BOARD CONCLUDED THAT THERE WERE EIGHT BOXES WITH AN ESTIMATED WEIGHT OF 14,681 POUNDS, AND ONE BOX WEIGHING 975 POUNDS, OR A TOTAL OF 15,656 POUNDS AS COMPARED TO EIGHT BOXES WEIGHING 16,250 POUNDS AS BILLED BY THE CARRIER. THE BOARD RECOMMENDED THAT THE EXCESS COST BE REDUCED BY $6.53 (594 POUNDS AT $1.10 PER HUNDREDWEIGHT). SINCE AT THAT TIME THE EXCESS COST WAS CONSIDERED TO BE $126.25, THE EFFECT OF THE RECOMMENDATION WAS TO REDUCE THAT COST TO $119.72. OUR RECORDS SHOW THAT THIS RECOMMENDATION WAS APPROVED BY THE APPOINTING AUTHORITY ON MARCH 31, 1953, BUT THERE IS NO REASON TO BELIEVE THE WEIGHT AS ESTIMATED BY THE BOARD IS MORE ACCURATE THAN THE ORIGINAL ESTIMATE WHICH FORMED THE BASIS FOR THE PAYMENT MADE BY THE GOVERNMENT FOR SHIPPING YOUR EFFECTS FROM MANILA. OF COURSE, AS IS TRUE WITH ANY WEIGHT ESTIMATE, THE ESTIMATE MAY NOT REPRESENT THE ACTUAL WEIGHT OF THE GOODS INVOLVED. BUT WHERE ADEQUATE SCALE FACILITIES ARE NOT AVAILABLE, SHIPMENTS ARE MADE ON THE BASIS OF ESTIMATED WEIGHTS, AS WAS DONE IN YOUR CASE. YOU CONCLUDE THAT THE WEIGHT ESTIMATE IN YOUR CASE IS EXCESSIVE, BUT UNLESS THAT CONCLUSION (ALSO BASED ON ESTIMATES) CAN BE SUPPORTED BY EVIDENCE OF ACTUAL WEIGHT OF THE GOODS, THERE WOULD BE NO BASIS FOR THE GOVERNMENT TO ACCEPT THAT ESTIMATE. THE FACT THAT THE GOVERNMENT DID NOT HAVE YOUR GOODS WEIGHED IN THE UNITED STATES, AS YOU REQUESTED, DOES NOT OBLIGATE THE GOVERNMENT TO ALLOW YOUR CLAIM BASED ON YOUR ESTIMATED WEIGHT. FURTHER, ALTHOUGH THE EXCESS COST ORIGINALLY WAS BASED ON THE SHIPMENT FROM MANILA, IT CLEARLY WAS INCORRECT SINCE IT WAS BASED ON A RATE OF $1.10 PER HUNDREDWEIGHT. THAT RATE REPRESENTED THE COST OF HAULING FROM CAMERON TO CHEVERLY ONLY. NO EXCESS COST WAS INCURRED UNTIL THE MEMPHIS SHIPMENT WAS MADE. THEREFORE, THE DEPARTMENT OF THE ARMY SUBSEQUENTLY COMPUTED THE EXCESS COST TO BE $254.91, BASED ON THE LATTER SHIPMENT.

WHERE HOUSEHOLD GOODS PACKING BOXES ARE NOT USED THE REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED PROVIDE THAT WHEN IT IS NECESSARY TO DETERMINE THE NET UNPACKED WEIGHT OF HOUSEHOLD GOODS, TWO-SEVENTHS WILL BE DEDUCTED FROM THE GROSS WEIGHT OF EFFECTS SHIPPED BY WATER, AND ONE-FIFTH FROM THE GROSS WEIGHT OF EFFECTS SHIPPED BY RAIL. WHEN HOUSEHOLD GOODS BOXES ARE USED THE WEIGHT OF THE EMPTY BOXES AND THE WEIGHT OF THE BOXES READY FOR SHIPMENT SHOULD BE AVAILABLE. THE DIFFERENCE BETWEEN THOSE TWO WEIGHTS MAY BE REDUCED BY 15 PERCENT TO ALLOW FOR PACKING REQUIRED IN ADDITION TO THE BOXES. IN THE CASE OF YOUR SHIPMENT FROM MANILA THE WEIGHT OF THE EMPTY BOXES IS NOT AVAILABLE. ALSO, AN ALLOWANCE MUST BE MADE FOR THE WEIGHT OF PACKING. UNDER SUCH CIRCUMSTANCES IT WOULD SEEM REASONABLE TO DEDUCT TWO SEVENTHS OF THE GROSS WEIGHT SHIPPED AS REPRESENTING THE WEIGHT OF THE HOUSEHOLD GOODS BOXES AND TO REDUCE THE FIGURE THUS OBTAINED BY THE USUAL 15 PERCENT ALLOWANCE FOR ADDITIONAL PACKING. A RECOMPUTATION OF THE EXCESS COST IS AS FOLLOWS:

CHART

SHIPMENTS FROM MANILA POUNDS

15,400 POUNDS LESS 2/7 EQUALS 11,000 LESS 15 PERCENT 9,350

850 POUNDS LESS 2/7 607

NET WEIGHT 9,957

SHIPMENTS FROM MEMPHIS

7,940 POUNDS LESS 1/5 6,352

TOTAL NET WEIGHT SHIPPED 16,309

AUTHORIZED ALLOWANCE 10,000

PROFESSIONAL BOOKS 1,010 11,010

EXCESS WEIGHT 5,299

EXCESS COST

5299/6352 TIMES $286.63 EQUALS $239.11

LESS REMITTANCE 126.25

BALANCE $112.86

THUS, ON THE BASIS OF THE BEST INFORMATION AVAILABLE TO US, IT MUST BE CONCLUDED THAT THE EXCESS COST EXCEEDS THE AMOUNT REMITTED BY YOU. SUCH BEING THE CASE, THERE APPEARS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JANUARY 13, 1956, IS SUSTAINED.