B-137468, OCTOBER 17, 1958, 38 COMP. GEN. 314

B-137468: Oct 17, 1958

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ETC. - GOVERNMENT LIABILITY LOSS OR DAMAGE TO AN EMPLOYEE'S HOUSEHOLD EFFECTS WHICH ARE SHIPPED UNDER ARRANGEMENTS MADE BY A GOVERNMENT AGENCY AND UNDER A GOVERNMENT BILL OF LADING. IS NOT AN OBLIGATION OR LIABILITY OF THE GOVERNMENT. EVEN THOUGH THE EMPLOYEE IS UNABLE TO COLLECT FROM THE PACKING COMPANY OR THE CARRIER. THE CLAIM IS NOT FOR SUBMISSION TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT. FOR LOSS AND DAMAGE TO HIS HOUSEHOLD EFFECTS WHICH WERE SHIPPED FROM PEORIA. THE HOUSEHOLD EFFECTS WERE CRATED IN SEVEN BOXES BY THEDE BROS. IT WAS FOUND UPON UNPACKING THE SEVEN BOXES THAT SEVERAL ARTICLES WERE DAMAGED AND OTHERS WERE MISSING. INDICATES THAT THE DAMAGE WAS DUE TO POOR PLACEMENT OF THE ARTICLES AND INSUFFICIENT PADDING IN CONTAINERS.

B-137468, OCTOBER 17, 1958, 38 COMP. GEN. 314

CIVILIAN PERSONNEL - TRANSPORTATION OF HOUSEHOLD EFFECTS - DAMAGE, LOSS, ETC. - GOVERNMENT LIABILITY LOSS OR DAMAGE TO AN EMPLOYEE'S HOUSEHOLD EFFECTS WHICH ARE SHIPPED UNDER ARRANGEMENTS MADE BY A GOVERNMENT AGENCY AND UNDER A GOVERNMENT BILL OF LADING, WHICH LIMITS THE CARRIER'S LIABILITY, IS NOT AN OBLIGATION OR LIABILITY OF THE GOVERNMENT, EVEN THOUGH THE EMPLOYEE IS UNABLE TO COLLECT FROM THE PACKING COMPANY OR THE CARRIER, AND IN THE ABSENCE OF ANY LEGAL LIABILITY ON THE PART OF THE GOVERNMENT, THE CLAIM IS NOT FOR SUBMISSION TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, OCTOBER 17, 1958:

BY LETTER OF SEPTEMBER 19, 1958, THE ACTING ADMINISTRATOR FORWARDED FOR OUR CONSIDERATION THE FILE PERTAINING TO THE CLAIM OF MR. EARL C. SHARICK, 416 SOUTH WASHINGTON STREET, LACON, ILLINOIS, FOR LOSS AND DAMAGE TO HIS HOUSEHOLD EFFECTS WHICH WERE SHIPPED FROM PEORIA, ILLINOIS, TO THE PANAMA CANAL ZONE, PURSUANT TO TRAVEL ORDERS ISSUED TO MR. SCHARICK BY THE PANAMA CANAL COMPANY.

THE RECORD FORWARDED WITH THE LETTER OF SEPTEMBER 19 INDICATES THAT YOUR ADMINISTRATION, AS AGENT FOR AND AT THE REQUEST OF THE PANAMA CANAL COMPANY, ARRANGED FOR THE EXPORT PACKING AND TRANSPORTATION OF MR. SHARICK'S HOUSEHOLD EFFECTS FROM LACON, ILLINOIS, TO CRISTOBAL, CANAL ZONE. THE HOUSEHOLD EFFECTS WERE CRATED IN SEVEN BOXES BY THEDE BROS., INC., 110 NORTH WASHINGTON STREET, PEORIA, ILLINOIS, AND TURNED OVER TO NATIONAL CARLOADING CORPORATION FOR SHIPMENT UNDER GOVERNMENT BILL OF LADING PC 79563. THE LATTER CORPORATION TRANSPORTED THE SHIPMENT TO NEW YORK CITY AND DELIVERED IT TO THE PANAMA LINE FOR OCEAN SHIPMENT TO DESTINATION. ALTHOUGH THE NATIONAL CARLOADING CORPORATION OBTAINED A CLEAR DOCK RECEIPT AND THE PANAMA LINE RECEIVED AND DISCHARGED THE SHIPMENT IN APPARENT GOOD ORDER AND CONDITION, IT WAS FOUND UPON UNPACKING THE SEVEN BOXES THAT SEVERAL ARTICLES WERE DAMAGED AND OTHERS WERE MISSING. THE UNPACKING RECORD PREPARED BY THE MAINTENANCE DIVISION, BALBOA FIELD OFFICE OF THE PANAMA CANAL COMPANY, INDICATES THAT THE DAMAGE WAS DUE TO POOR PLACEMENT OF THE ARTICLES AND INSUFFICIENT PADDING IN CONTAINERS. SINCE THE INVENTORY PREPARED BY THEDE BROS., INC., SHOWS THAT THE MISSING ARTICLES HAD BEEN REMOVED FROM MR. SHARICK'S HOME BY THAT COMPANY AND THE BOXES CLEARLY HAD NOT BEEN PILFERED IN TRANSIT, IT IS APPARENT THAT THE LOSS WAS DUE TO FAILURE OF THEDE BROS., INC., TO PACK ALL THE ARTICLES SO REMOVED. IT WAS DETERMINED THAT THEDE BROS., INC., WAS LIABLE TO THE EXTENT OF $649.50 FOR THE VALUE OF THE LOST ARTICLES AND FOR THE COST OF REPAIRING THE DAMAGED ONES.

DESPITE DILIGENT COLLECTION EFFORTS ON THE PART OF GENERAL SERVICES ADMINISTRATION, THEDE BROS., INC., HAS REFUSED TO PAY THE CLAIM. MR. SHARICK APPEARS TO BELIEVE IT IS THE DUTY OF THE GOVERNMENT TO ASSIST HIM IN COLLECTING THE CLAIM AND THAT THE GOVERNMENT IS RESPONSIBLE FOR THE LOSS AND DAMAGE. SINCE YOUR ADMINISTRATION BELIEVES THERE IS NO LIABILITY OR OBLIGATION ON THE PART OF THE GOVERNMENT, THE MATTER WAS FORWARDED HERE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236.

YOUR ADMINISTRATION IS CORRECT IN ITS BELIEF THAT THERE IS NO LIABILITY OR OBLIGATION ON THE PART OF THE GOVERNMENT IN CASES SUCH AS HERE INVOLVED. IN B-92393, DATED APRIL 27, 1950, INVOLVING DAMAGE TO A GOVERNMENT EMPLOYEE'S HOUSEHOLD EFFECTS SHIPPED VIA A CARRIER BY A GOVERNMENT AGENCY, WE SAID:

YOUR REQUEST FOR REVIEW IS BASED UPON WHAT IS ALLEGED TO BE THE GENERAL RESPONSIBILITY OF A GOVERNMENT AGENCY TO EXERCISE DUE CARE IN CARRYING OUT ITS UNDERTAKING TO TRANSPORT PROPERTY OF ITS EMPLOYEES. IN THAT CONNECTION YOU ALLEGE THAT BY UNDERTAKING THE SHIPMENT OF YOUR GOODS THE PHILIPPINE WAR DAMAGE COMMISSION REMOVED ALL OPPORTUNITY FOR YOU TO DO THE JOB PROPERLY; THAT THE COMMISSION THROUGH THE AGENTS SELECTED BY IT WAS NEGLIGENT AND IS RESPONSIBLE FOR THE DAMAGES SUFFERED BY YOU AS A RESULT THEREOF, ESPECIALLY SINCE IT CONTRACTED WITH THE CARRIERS INVOLVED BY GOVERNMENT BILL OF LADING WHICH PROVIDES FOR REDUCED RATES IN CONSIDERATION OF LIMITED LIABILITY ON THE PART OF THE CARRIERS. YOU STATE THAT YOU HAVE MADE CLAIMS UPON THE CARRIERS FOR THE DAMAGES INVOLVED AND THAT ONE OF SUCH CARRIERS HAS PAID ITS PRO RATA SHARE OF THE DAMAGES TO THE EXTENT OF ITS LIABILITY UNDER THE BILL OF LADING.

YOU ARE ADVISED THAT WHEN AN EMPLOYEE OF THE UNITED STATES AVAILS HIMSELF OF ANY RIGHT HE MAY HAVE ACQUIRED UNDER THE LAW TO HAVE HIS HOUSEHOLD EFFECTS TRANSPORTED AT GOVERNMENT EXPENSE, SUCH RIGHT AS WELL AS THE LIABILITY OF THE GOVERNMENT IS LIMITED BY THE SPECIFIC PROVISIONS OF LAW AND REGULATION AUTHORIZING THE EXPENDITURE OF PUBLIC FUNDS FOR THAT PURPOSE. IN THOSE CASES WHERE THE SHIPMENT OF AN EMPLOYEE'S HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IS AUTHORIZED AND REQUESTED BY THE EMPLOYEE, THE GOVERNMENT UNDERTAKES SUCH SHIPMENT UPON THE SAME BASIS AS IT WOULD SHIP ITS OWN PROPERTY, THAT IS, BY GOVERNMENT BILL OF LADING WHICH CARRIES A LOWER RATE AS WELL AS A LIMITED RESPONSIBILITY FOR LOSS OR DAMAGE ON THE PART OF THE CARRIER. THIS IS A STANDARD POLICY OF LONG STANDING AND SINCE THE LAWS AND REGULATIONS PERTAINING TO THE SHIPMENT OF HOUSEHOLD EFFECTS OF CIVILIAN EMPLOYEES CONTAIN NO PROVISION FOR INDEMNIFYING THE EMPLOYEE FOR LOSS OR DAMAGE IN EXCESS OF THE LIMITED LIABILITY ASSUMED BY THE CARRIER UNDER A GOVERNMENT BILL OF LADING, IT IS INCUMBENT UPON THE EMPLOYEE TO PROCURE PRIVATE INSURANCE IF HE IS UNWILLING TO ASSUME THE SAME RISKS WITH RESPECT TO HIS EFFECTS AS THE GOVERNMENT ASSUMES IN SHIPPING ITS OWN PROPERTY.

ASIDE FROM THE FOREGOING, HOWEVER, THE FACT REMAINS THAT THERE IS NO PROVISION OF LAW AUTHORIZING THE PAYMENT OF AN ADDITIONAL AMOUNT BY THE UNITED STATES TO COVER DAMAGES TO A CIVILIAN EMPLOYEE'S HOUSEHOLD EFFECTS WHILE SUCH EFFECTS ARE IN TRANSIT, AND IN THE ABSENCE OF SUCH PROVISION, THERE IS NO AUTHORITY WHEREBY APPROPRIATED FUNDS MAY BE EXPENDED FOR THAT PURPOSE. * * *

SINCE THE SITUATION HERE INVOLVED IS PRACTICALLY IDENTICAL WITH THAT CONSIDERED IN B-92393, THE CONCLUSION CLEARLY MUST BE THE SAME. SEE ALSO 21 COMP. GEN. 894.

THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, PROVIDES AS FOLLOWS:

WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.

THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS OF ONLY THOSE CASES WHEREIN THERE IS A LEGAL OR EQUITABLE LIABILITY ON THE PART OF THE GOVERNMENT AND SETTLEMENT CANNOT BE MADE SOLELY BECAUSE OF THE ABSENCE OF AN APPROPRIATION AVAILABLE THEREFOR. SINCE, AS INDICATED ABOVE, THERE IS NO LIABILITY ON THE PART OF THE GOVERNMENT IN THIS CASE, THE MATTER IS NOT WITHIN THE PURVIEW OF THE MERITORIOUS CLAIMS ACT AND WE HAVE NO AUTHORITY THEREUNDER TO SUBMIT IT TO THE CONGRESS.