B-139715, JUL. 24, 1959

B-139715, JUL. 24, 1959

TO CAPTAIN J. S. GRAY, JR., USN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1959, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 21, 1955, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $711.06, REPRESENTING THE AMOUNT COLLECTED FROM YOU AS THE COST OF SHIPPING HOUSEHOLD EFFECTS IN EXCESS OF YOUR AUTHORIZED WEIGHT ALLOWANCE FROM THE UNITED STATES TO NAPLES, ITALY.

BY BUREAU OF NAVAL PERSONNEL ORDERS DATED SEPTEMBER 18, 1952, YOU WERE TRANSFERRED FROM THE U.S.S. CORAL SEA (CVB-143) TO DUTY WITH THE COMMANDER, FLEET AIR, EASTERN ATLANTIC AND MEDITERRANEAN. THE RECORD INDICATES THAT YOU ORIGINALLY REQUESTED THE SUPPLY OFFICER, NAVAL GUN FACTORY, WASHINGTON, D.C., TO SHIP CERTAIN HOUSEHOLD EFFECTS TO NONTEMPORARY STORAGE IN THE UNITED STATES AND TO SHIP CERTAIN OTHER EFFECTS TO YOU AT NAPLES, ITALY. ON DECEMBER 31, 1952, YOU SENT MESSAGE TO THE HOUSEHOLD EFFECTS SECTION, NAVAL GUN FACTORY, WASHINGTON, D.C., REQUESTING THAT ALL YOUR HOUSEHOLD EFFECTS BE SHIPPED TO NAPLES AND THAT NONE BE SHIPPED TO STORAGE IN THE UNITED STATES. THE RECORD INDICATES THAT THE MESSAGE REACHED THE NAVAL GUN FACTORY ONE DAY BEFORE A SHIPMENT OF YOUR EFFECTS (SHIPMENT NO. 4) PURSUANT TO EARLIER ARRANGEMENTS, WAS MADE TO MECHANICSBURG, PENNSYLVANIA, FOR NONTEMPORARY STORAGE. SUBSEQUENTLY, THOSE EFFECTS WERE RESHIPPED TO BAYONNE, NEW JERSEY, FOR TRANSSHIPMENT TO NAPLES, ITALY. NO PART OF THE CHECK AGE AGAINST YOUR PAY WAS MADE BY REASON OF THE FACT THAT SHIPMENT FROM WASHINGTON TO BAYONNE WAS MADE VIA MECHANICSBURG. IN THE SETTLEMENT OF NOVEMBER 21, 1955, THERE WAS CONSIDERED THE TOTAL WEIGHT OF THE EFFECTS SHIPPED TO YOUR OVERSEAS RESIDENCE AND THE REGULATIONS APPLICABLE TO THE SHIPMENT OF HOUSEHOLD EFFECTS IN EXCESS OF YOUR AUTHORIZED ALLOWANCE. IN YOUR PRESENT LETTER YOU STATE THAT TWO ERRORS ON THE PART OF THE SUPPLY OFFICER, NAVAL GUN FACTORY, WASHINGTON, D.C., ARE INVOLVED: "/1) SENDING THE WRONG SHIPMENT OF EFFECTS TO STORAGE AND (2) AFTER HAVING RECEIVED A MESSAGE ASKING THAT NOTHING BE STORED, PERMITTING THIS SHIPMENT TO BE SENT TO MECHANICSBURG FOR LONG TIME STORAGE.' YOU STATE THAT THE IMPROPER SHIPMENT OF YOUR EFFECTS CAUSED YOU AND YOUR FAMILY TO LIVE IN A HOTEL, WITH INCREASED PERSONAL EXPENSE FOR MORE THAN FOUR MONTHS. IT IS YOUR CONTENTION THAT NO OFFICER SHOULD BE OUT OF POCKET DUE TO ERRORS COMMITTED BY A GOVERNMENT AGENCY. THEREFORE, YOU REQUEST RECONSIDERATION ON THE BASIS OF RESPONSIBILITY FOR ERROR RATHER THAN ON THE NET WEIGHT OF THE EFFECTS SHIPPED.

THE RECORD DOES NOT ESTABLISH WHY YOUR MESSAGE OF DECEMBER 31, 1952, DID NOT RESULT IN ACTION BY THE SUPPLY OFFICER AT THE NAVAL GUN FACTORY TO PREVENT SHIPMENT NO. 4 OF YOUR EFFECTS FROM GOING FORWARD TO MECHANICSBURG, PENNSYLVANIA, FOR NONTEMPORARY STORAGE. HOWEVER, THAT MATTER IS NOT MATERIAL HERE SINCE NO INCREASED SHIPPING COSTS WERE CHARGED TO YOU AS A RESULT OF SUCH SHIPMENT. IF, AS INDICATED, SUCH SHIPMENT CAUSED A DELAY IN THEIR BEING MOVED TO NAPLES AND YOU INCURRED ADDITIONAL EXPENSE AS THE RESULT OF NOT BEING ABLE TO ESTABLISH A HOUSEHOLD IN NAPLES AT AN EARLIER DATE, SUCH DELAY FURNISHES NO BASIS FOR A CLAIM AGAINST THE GOVERNMENT, SINCE IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM NEGLIGENT ACTS OR OMISSIONS OF DUTY OF OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515, AND CASES THERE CITED.

CONCERNING YOUR STATEMENT THAT "UNNECESSARY EFFECTS WEIGHED SUFFICIENTLY TO HAVE ELIMINATED OVERWEIGHT CHARGES HAD THEY BEEN STORED AS ORIGINALLY REQUESTED AND NOT SHIPPED TO ITALY"--- PRESUMABLY YOU REFER TO SHIPMENT NO. 2--- IT APPEARS THAT SUCH EFFECTS WERE SHIPPED PURSUANT TO DIRECTIONS IN YOUR MESSAGE OF DECEMBER 31, 1952, REQUESTING SHIPMENT OF "ALL" HOUSEHOLD EFFECTS AND DIRECTING THAT "NO ITEMS" BE STORED IN THE UNITED STATES. IN YOUR LETTER OF JANUARY 12, 1954, TO THE NAVY REGIONAL ACCOUNTS OFFICE, YOU STATED THAT YOUR MESSAGE "REQUESTED IMMEDIATE SHIPMENT OF THE BULK OF ALL MY EFFECTS" BUT THAT ABOUT HALF OF THESE (SHIPMENT NO. 4) WERE ERRONEOUSLY SENT TO STORAGE BEFORE BEING SHIPPED TO NAPLES. THE RECORD CONTAINS NO EVIDENCE THAT YOU HAVE PREVIOUSLY REGARDED SHIPMENT NO. 2 AS UNNECESSARY OR THAT IT WAS MADE AGAINST YOUR WILL. THE SHIPMENT WAS RECEIVED BY YOU IN NAPLES ON MARCH 20, 1953, AND APPARENTLY WAS SHIPPED AFTER DECEMBER 31, 1952. IT INCLUDED DISHES WHICH ARE A NECESSARY PART OF MOST HOUSEHOLDS.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM AND THE SETTLEMENT OF NOVEMBER 21, 1955, IS SUSTAINED.