B-127366, MAY 29, 1956

B-127366: May 29, 1956

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TO PYRAMID VAN LINES: WE HAVE YOUR LETTER OF SEPTEMBER 8. YOUR CLAIM IS FOR $109 PACKING CHARGES AND $621.48 FREIGHT CHARGES. ALLEGED TO HAVE ACCRUED IN CONNECTION WITH A SHIPMENT OF HOUSEHOLD GOODS OWNED BY LIEUTENANT ROBERT O. WHICH WAS SIGNED BY AN EMPLOYEE OF "WESTERN TRANS.'. LIEUTENANT ROBERT OTTO BARNES WAS NAMED AS CONSIGNEE. THE DESTINATION ORIGINALLY SHOWN WAS "PATUXENT RIVER. THE BILL OF LADING ALSO PROVIDED THAT "60 DAYS STORAGE IN TRANSIT IS AUTHORIZED AND WILL BE AT DESTINATION.'. THE ABOVE DESTINATION WAS CROSSED OUT AND INSERTED IN ITS STEAD WAS "DELIVERED TO PYRAMID VAN LINES INC ALEXANDRIA VIRGINIA.'. THE BILL OF LADING WAS ACCOMPLISHED AT ALEXANDRIA. WAS ATTACHED IN SUPPORT OF BILL OF LADING N-30923497.

B-127366, MAY 29, 1956

TO PYRAMID VAN LINES:

WE HAVE YOUR LETTER OF SEPTEMBER 8, 1955, REQUESTING REVIEW OF THE SETTLEMENT IN CLAIM TK-514418, JUNE 28, 1955, WHICH DISALLOWED YOUR CLAIM FOR $730.48. YOUR CLAIM IS FOR $109 PACKING CHARGES AND $621.48 FREIGHT CHARGES, ALLEGED TO HAVE ACCRUED IN CONNECTION WITH A SHIPMENT OF HOUSEHOLD GOODS OWNED BY LIEUTENANT ROBERT O. BARNES, U.S. NAVY.

THE RECORD SHOWS THAT THE COMMANDING OFFICER OF THE NAVAL SUPPLY DEPOT, SAN DIEGO, CALIFORNIA, TENDERED "1 LOT HOUSEHOLD GOODS," WEIGHING 4,510 POUNDS TO THE "PYRAMID VAN LINES (WESTERN TRSF. AND STG)" AT 634 ELM AVENUE, PALM CITY, CALIFORNIA, ON NOVEMBER 17, 1953, UNDER GOVERNMENT BILL OF LADING N-30923497. THE BILL OF LADING, WHICH WAS SIGNED BY AN EMPLOYEE OF "WESTERN TRANS.' AS AGENT FOR PYRAMID VAN LINES, BORE THE TYPEWRITTEN NOTATION "INITIAL CARRIER BY SIGNATURE BELOW CERTIFIES HE HAS RECEIVED THE ORIGINAL B/L.' LIEUTENANT ROBERT OTTO BARNES WAS NAMED AS CONSIGNEE, THE DESTINATION ORIGINALLY SHOWN WAS "PATUXENT RIVER, MARYLAND," AND THE BILL OF LADING INSTRUCTED THAT, UPON ARRIVAL OF THE GOODS, THE OWNER, LIEUTENANT BARNES, SHOULD BE NOTIFIED AT ,NATC, PATUXENT RIVER, MARYLAND.' THE BILL OF LADING ALSO PROVIDED THAT "60 DAYS STORAGE IN TRANSIT IS AUTHORIZED AND WILL BE AT DESTINATION.' THE ABOVE DESTINATION WAS CROSSED OUT AND INSERTED IN ITS STEAD WAS "DELIVERED TO PYRAMID VAN LINES INC ALEXANDRIA VIRGINIA.' ON NOVEMBER 30, 1953, THE BILL OF LADING WAS ACCOMPLISHED AT ALEXANDRIA, VIRGINIA, WITH THE FOLLOWING ENDORSEMENT IN THE SPACE DESIGNATED FOR THE CONSIGNEE'S SIGNATURE: "RECEIVED GOODS, JOHN ROANE, INC., D. F. THOMAS INSURANCE ADJUSTERS.' A NOTATION "SHIPMENT PARTIALLY DESTROYED BY FIRE," HAD BEEN PLACED ON THE BILL OF LADING AND LATER CROSSED OUT.

AN "ACCESSORIAL SERVICES CERTIFICATE," DATED NOVEMBER 17, 1953, WAS ATTACHED IN SUPPORT OF BILL OF LADING N-30923497. ACCORDING TO THIS CERTIFICATE, THE GOODS WERE PACKED, LOADED, AND THEN WEIGHED BY A PUBLIC WEIGHMASTER ON NOVEMBER 16, 1953. ONE "MCCULLOUGH" SIGNED THIS CERTIFICATE FOR THE WESTERN TRANSFER AND STORAGE AND PYRAMID VAN LINES; R. O. BARNES SIGNED AS OWNER. TWO OF THE CARRIER'S INVENTORY SHEETS, DATED NOVEMBER 17, 1953, WHICH DESCRIBE ALL OF THE GOODS SHIPPED, WERE ALSO ATTACHED TO THE BILL OF LADING. THE INVENTORY WAS PREPARED BY "MCCULLOUGH" TO SHOW THAT GOODS OWNED BY ROBERT O. BARNES WERE TO BE SHIPPED FROM PALM CITY, CALIFORNIA, TO PATUXENT RIVER, MARYLAND. ROBERT O. BARNES SIGNED AN ACKNOWLEDGMENT OF THE CONDITION OF THE GOODS AT THE TIME OF LOADING BY THE "DELIVERY RECEIPT," READING "I HAVE INSPECTED AND ACKNOWLEDGE RECEIPT OF ALL GOODS LISTED ON THIS INVENTORY AND AGREE THAT THE GOODS WERE DELIVERED IN THE SAME CONDITION AS LISTED ABOVE AT TIME OF LOADING EXCEPT FOR STORAGE OR DAMAGE AS LISTED BELOW," IS SIGNED "RECEIVED GOODS JOHN ROANE INC., D. F. THOMAS INSURANCE ADJUSTERS.'

THE RECORD SUGGESTS THAT THE HOUSEHOLD GOODS WERE PICKED UP BY THE CARRIER, PACKED, LOADED, WEIGHED, AND STARTED ON THEIR WAY TO PATUXENT RIVER, MARYLAND, WHERE THE OWNER WAS TO BE NOTIFIED OF THEIR ARRIVAL AND THE GOODS WERE TO BE STORED FOR 60 DAYS PRIOR TO DELIVERY. THE FILE FURNISHED BY THE DEPARTMENT OF THE NAVY INDICATES THAT THE GOODS WERE IRRETRIEVABLY DAMAGED BY FIRE NEAR ALBANY, GEORGIA, ON NOVEMBER 24, 1953. APPARENTLY AT THE DIRECTION OF EITHER THE CARRIER OR THE INSURER, THEY WERE THEN FORWARDED TO THE PYRAMID VAN LINES, AT ALEXANDRIA, VIRGINIA, FOR DELIVERY TO, AND INSPECTION BY JOHN ROANE, INC. IT WAS THE INSURANCE ADJUSTER'S DETERMINATION THAT THE GOODS WERE A TOTAL LOSS. AFTER SOME NEGOTIATION, LIEUTENANT BARNES' VALUATION OF $7,037.56 WAS REVISED DOWNWARD. HE WAS PAID $4,000, THE FACE AMOUNT OF AN ALL-RISK POLICY TAKEN OUT ON THE SHIPMENT, AND HIS CLAIM AGAINST THE CARRIER FOR $1,353 (4,510 POUNDS AT 30 CENTS PER POUND) WAS SETTLED FOR $1,021. THUS THE TOTAL AMOUNT PAID ON THE SHIPMENT WAS $5,021.

IN JANUARY 1954 YOU SUBMITTED YOUR BILL "SD 2916 BARNES" TO THE NAVY DEPARTMENT FOR PAYMENT OF THESE CHARGES. THE CLAIM WAS FORWARDED HERE FOR SETTLEMENT IN FEBRUARY, AND THE DISPUTED DISALLOWANCES FOLLOWED. YOU NOW PRESS YOUR CLAIM ON THE GROUNDS THAT (1) THE TRANSPORTATION CONTRACT WAS COMPLETED BY DELIVERY OF THE GOODS AT DESTINATION; (2) THE SERVICE WAS COMPLETED AND CONSTRUCTIVE DELIVERY ACCOMPLISHED BY PERMITTING THE OWNER THE ELECTION OF A "FULL VALUE" CASH SETTLEMENT IN LIEU OF "DEPRECIATION AND SALVAGE; " AND (3) THE PACKING CHARGES ARE DUE AND PAYABLE BECAUSE THIS SERVICE WAS COMPLETED PRIOR TO THE COMMENCEMENT OF TRANSPORTATION.

YOUR FIRST CONTENTION AS TO EXECUTION OF THE CONTRACT BY DELIVERY OF THE GOODS AT DESTINATION SEEMS TO BE REFUTED BY THE SHOWING ON THE BILL OF LADING ITSELF THAT DELIVERY WAS NOT MADE TO THE CONSIGNEE, LIEUTENANT BARNES, AT THE DESTINATION, PATUXENT RIVER, MARYLAND, BUT TO THE INSURANCE ADJUSTERS AT ALEXANDRIA, VIRGINIA. AS TO THE SECOND CONTENTION, THE FACTS DO NOT SHOW THAT LIEUTENANT BARNES RECEIVED A "FULL VALUE" CASH SETTLEMENT SINCE HE CLAIMED ORIGINALLY $7,037.56. HE WAS PAID INSURANCE OF $4,000, AND ON JANUARY 15, 1954, HE PRESENTED A CLAIM TO YOU FOR $1,353--- 4,510 POUNDS AT 30 CENTS PER POUND. APPLETON AND COX, INC., ATTORNEYS FOR YOUR INSURER, U.S. FIRE INSURANCE COMPANY, APPLIED A BASIS OF DEPRECIATION WHICH RESULTED IN A TOTAL VALUE OF $5,021. LIEUTENANT BARNES WAS THEN PAID $1,021, THE BALANCE OVER THE $4,000 HE HAD ALREADY RECEIVED.

AT COMMON LAW, A CARRIER DOES NOT EARN AND IS NOT ENTITLED TO FREIGHT UNLESS IT COMPLETELY PERFORMS ITS CONTRACT BY DELIVERING THE GOODS TO THE CONSIGNEE AT DESTINATION. IN THIS CONNECTION, SEE CHRISTIE, ET AL. V. DAVIS COAL AND COKE CO., 95 F. 837. AS TO SHIPMENT FOR THE ACCOUNT OF THE UNITED STATES, THE LAW IS WELL SETTLED THAT WHEN GOODS TRANSPORTED ON A GOVERNMENT BILL OF LADING ARE LOST IN TRANSIT, THE CARRIER IS NOT ENTITLED TO FREIGHTAGE. ALCOA STEAMSHIP COMPANY V. UNITED STATES, 338 U.S. 421; STRICKLAND TRANSPORTATION COMPANY V. UNITED STATES, 223 F.2D 466. THE FACT THAT THE INSURER MADE A SETTLEMENT WITH LIEUTENANT BARNES FOR THE RUINED GOODS DOES NOT OPERATE TO ENTITLE YOU TO THE FREIGHT CHARGES. AS A COMMON CARRIER IN RELATION TO THIS SHIPMENT, YOU WERE CHARGED WITH THE DUTY OF SAFE DELIVERY TO THE CONSIGNEE NAMED IN THE BILL OF LADING AT THE DESTINATION NAMED IN THE BILL OF LADING. YOUR INSURANCE OF THE GOODS FOR YOUR OWN PROTECTION IS NOT A MATTER WITH WHICH THE GOVERNMENT IS CONCERNED, NOR DOES IT SERVE TO ALTER OR CHANGE IN ANY MANNER YOUR CONTRACT TO PACK AND CARRY THE GOODS, AND TO STORE THEM AT PATUXENT RIVER FOR ULTIMATE DELIVERY TO LIEUTENANT BARNES. SEE 6 COMP. GEN. 698 AND 30 COMP. GEN. 348.

YOUR THIRD CONTENTION IS THAT THE PACKING CHARGES OF $109 SHOULD BE PAID BECAUSE THE SERVICE OF PACKING WAS FULLY COMPLETED BEFORE THE GOODS ENTERED INTO TRANSPORTATION. THE RECORD WHICH HAS ALREADY BEEN DESCRIBED SHOWS CLEARLY THAT THE CONTRACT TO PACK, TRANSPORT, AND STORE AT DESTINATION WAS A SINGLE UNIFIED TRANSACTION MADE FOR THE SOLE PURPOSE OF EFFECTING THE REMOVAL OF LIEUTENANT BARNES' HOUSEHOLD GOODS FROM PALM CITY, CALIFORNIA, TO HIS NEW STATION, PATUXENT RIVER, MARYLAND. TO CARRY OUT THIS OBJECTIVE, INCIDENTAL SERVICES OF PACKING THE GOODS AND STORING THEM AT DESTINATION UNTIL NEEDED--- NOT MORE THAN 60 DAYS--- WERE NECESSARY, IN ADDITION TO THE ACTUAL TRANSPORTATION. ALL OF THESE SERVICES WERE COVERED BY A SINGLE CONTRACT BETWEEN THE GOVERNMENT AND THE CARRIER. SINCE YOU ARE NOT ENTITLED TO THE FREIGHT CHARGES UNDER THE TRANSPORTATION CONTRACT, YOUR ENTITLEMENT TO THE PACKING CHARGES DEPENDS UPON WHETHER THE CONTRACT MADE WAS SEVERABLE RATHER THAN ENTIRE.

ONE TEST OF THE SEVERABILITY OF A CONTRACT IS WHETHER TWO PROMISES ARE SO INTERDEPENDENT THAT THE PARTIES WOULD NOT HAVE ENTERED INTO ONE WITHOUT THE OTHER. LOCKER V. MARCOTTE, 15 P.2D 969; LINEBARGER V. DEVINE, 214 P. 532. IT HAS BEEN HELD THAT WHERE THERE IS A SINGLE ASSENT TO A WHOLE TRANSACTION INVOLVING SEVERAL THINGS OR SEVERAL KINDS OF PROPERTY, THE CONTRACT IS ALWAYS ENTIRE. ORENSTEIN V. KAHN, 119 A. 444, 446. SEC. ALSO, UNITED STATES. V. BETHLEHEM STEEL CORPORATION, 315 U.S. 289.

THE CONCLUSION SEEMS INESCAPABLE THAT THE PROMISES IN THIS CASE WERE INTERDEPENDENT--- THAT ONE WOULD NOT HAVE BEEN MADE WITHOUT THE OTHERS. THE PROMISE TO PACK WAS DEPENDENT UPON THE PROMISE TO CARRY, SINCE PACKING WOULD HAVE BEEN UNNECESSARY WITHOUT TRANSPORTATION; THE ENGAGEMENTS TO PACK AND TRANSPORT WERE INTERDEPENDENT WITH THE AGREEMENT TO STORE AT DESTINATION, SINCE DELIVERY OF THE GOODS WAS NOT DESIRED BY THE CONSIGNEE PRIOR TO SOME PARTICULAR TIME. THE INTENTION OF THE PARTIES TO PUT THE GOODS IN THE CARRIER'S CUSTODY FROM THE INSTANT OF PICK-UP AT ORIGIN UNTIL FINAL DELIVERY AFTER STORAGE AT DESTINATION IS CLEARLY DEMONSTRATED BY THE TERMS OF THE BILL OF LADING ITSELF AND BY THE SUPPORTING DOCUMENTS. THERE SEEMS NO DOUBT THAT THE PARTIES REALIZED THAT NOTHING LESS THAN COMPLETE PERFORMANCE OF ALL THE SERVICES CALLED FOR WOULD FULFILL THE CARRIER'S UNDERTAKING AND CONSTITUTE THE CONSIDERATION REQUIRED TO BIND THE GOVERNMENT TO PAYMENT. THE CONTRACT WAS, THEREFORE, ENTIRE AND NOT SEVERABLE. IN THE ABSENCE OF DELIVERY OF THE GOODS AT DESTINATION, THE CONTRACT WAS NOT PERFORMED, AND THE UNITED STATES IS NOT LIABLE FOR ANY PART OF THE CONTRACT PRICE.