B-150463, SEP. 24, 1963, 43 COMP. GEN. 290

B-150463: Sep 24, 1963

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THE LINE HAUL CARRIER IS ENTITLED TO PAYMENT FOR THE SERVICES UNDER THE CONTRACT. THE AMOUNT OWING WILL BE APPLIED TO REDUCE THE CARRIER'S INDEBTEDNESS TO THE UNITED STATES. 1963: REFERENCE IS MADE TO YOUR LETTER OF MAY 20. THE CLAIM IS FOR WAREHOUSE HANDLING AND STORAGE-IN-TRANSIT CHARGES ALLEGED TO BE DUE YOUR COMPANY ON A SHIPMENT OF HOUSEHOLD GOODS OWNED BY STAFF SERGEANT JAMES E. THE CONSIGNEE IS SHOWN AS UNIVERSAL STORAGE WAREHOUSE. THE "CERTIFICATE OF THE ISSUING OFFICER" SHOWS THAT THE SUBJECT SHIPMENT WAS MADE PURSUANT TO THE TERMS OF THE CONTRACT OR PURCHASE ORDER NO. " THUS INDICATING THAT THE ONLY CONTRACT FOR THE TRANSPORTATION AND STORAGE OF THE GOODS WAS REPRESENTED BY THE TERMS AND CONDITIONS OF BILL OF LADING A-8205657.

B-150463, SEP. 24, 1963, 43 COMP. GEN. 290

TRANSPORTATION - ACCESSORIAL CHARGES - WAREHOUSEMAN - DIRECT PAYMENT THE WAREHOUSE HANDLING AND STORAGE-IN-TRANSIT CHARGES DUE ON A SHIPMENT OF HOUSEHOLD GOODS OF A MEMBER OF THE ARMED SERVICES TENDERED BY A TRANSPORTATION OFFICER UNDER A GOVERNMENT BILL OF LADING TO A LINE HAUL CARRIER INDEBTED TO THE UNITED STATES FOR OVERCHARGES IN UNRELATED TRANSPORTATION TRANSACTIONS ALLOWED IN BANKRUPTCY PROCEEDINGS BUT REMAINING UNPAID DUE TO INSUFFICIENT ASSETS, MAY NOT BE ALLOWED THE WAREHOUSEMAN, WHOSE DESIGNATION AS CONSIGNEE ON THE BILL OF LADING CREATES NO PRIVITY OF CONTRACT WITH THE UNITED STATES AND, THEREFORE, NO LIABILITY OF THE PART OF THE GOVERNMENT FOR THE UNPAID ACCESSORIAL CHARGES, THE CONTRACT TO PACK, TRANSPORT, STORE AND DELIVER THE GOODS AT DESTINATION BEING A SINGLE UNIFIED TRANSACTION, PAYMENT FOR THE SERVICES PERFORMED CANNOT BE SPLIT INTO COMPONENT PARTS, AND THE LINE HAUL CARRIER IS ENTITLED TO PAYMENT FOR THE SERVICES UNDER THE CONTRACT, AND THE AMOUNT OWING WILL BE APPLIED TO REDUCE THE CARRIER'S INDEBTEDNESS TO THE UNITED STATES.

TO UNIVERSAL STORAGE WAREHOUSES, SEPTEMBER 24, 1963:

REFERENCE IS MADE TO YOUR LETTER OF MAY 20, 1963, PROTESTING OUR SETTLEMENT CERTIFICATE DATED MAY 15, 1963, WHICH DISALLOWED YOUR CLAIM FOR $131.60 ON YOUR BILL NO. 01994, OUR CLAIM TK-740002. THE CLAIM IS FOR WAREHOUSE HANDLING AND STORAGE-IN-TRANSIT CHARGES ALLEGED TO BE DUE YOUR COMPANY ON A SHIPMENT OF HOUSEHOLD GOODS OWNED BY STAFF SERGEANT JAMES E. KING.

THE RECORD SHOWS THAT THE TRANSPORTATION OFFICER AT SELFRIDGE AIR FORCE BASE, MICHIGAN, TENDERED "1 LOT HOUSEHOLD GOODS," WEIGHING 3,300 POUNDS, TO H. L. LEONARD MOVING AND STORAGE COMPANY, INC., AT MOUNT CLEMENS, MICHIGAN, ON DECEMBER 13, 1960, UNDER GOVERNMENT BILL OF LADING A- 8205657. THE CONSIGNEE IS SHOWN AS UNIVERSAL STORAGE WAREHOUSE, NEWARK, NEW JERSEY, AND THE DESTINATION AS JERSEY CITY, NEW JERSEY. THE BILL OF LADING BLOCK--- MARKS--- BEARS THE NOTATIONS ,FOR: SSGT JAMES E. KING" AND "STORAGE INTRANSIT AUTHORIZED AT DESTINATION NOT TO EXCEED 90 S.' THE "CERTIFICATE OF THE ISSUING OFFICER" SHOWS THAT THE SUBJECT SHIPMENT WAS MADE PURSUANT TO THE TERMS OF THE CONTRACT OR PURCHASE ORDER NO.--- "SEE ABOVE," THUS INDICATING THAT THE ONLY CONTRACT FOR THE TRANSPORTATION AND STORAGE OF THE GOODS WAS REPRESENTED BY THE TERMS AND CONDITIONS OF BILL OF LADING A-8205657. YOUR BILL NO. 01994 INDICATES THAT IT IS A "SUPPLEMENTAL BILLING FOR GOV-T BILL OF LADING NO. A-8205657 SHIPMENT FOR SSGT JAMES E. KING AF16330715 (S/SGT. KING'S SERVICE NUMBER) FOR STORAGE IN TRANSIT AND REDELIVERY CHARGES.' THIS BILL IS SUPPORTED BY A COPY OF A DOCUMENT ENTITLED "STATEMENT OF ACCESSORIAL SERVICES PERFORMED" DATED MARCH 6, 1962, WHICH SHOWS BILL OF LADING A-8205657. IN THE SPACE HEADED "PLACE FROM" THERE IS INSERTED ,SELFRIDGE AFB, MICHIGAN TO SIT UNIVERSAL STAGE., NEWARK, N.J.' IN THE SPACE HEADED "TO" THERE IS INSERTED "903 GOLDEN STREET, JERSEY CITY NEW JERSEY.' YOU ALSO ENCLOSED A PHOTOSTAT OF THE SAME FORM DATED DECEMBER 27, 1960 (THE DATE THE SHIPMENT WAS PLACED IN STORAGE) SIGNED BY CLARICE H. KING (PRESUMABLY A RELATIVE OF S/SGT. KING) ON JANUARY 11, 1961, BEARING NOTATIONS TO THE SAME EFFECT AND STATING THAT THE SERVICES OF UNPACKING, WAREHOUSE HANDLING, STORAGE, AND DELIVERY OUT WERE PERFORMED BY "H. L. LEONARD M AND S" (IN THE BLANK ENTITLED "NAME OF CARRIER").

THE RECORD SHOWS THAT THE LINE-HAUL CARRIER, H. L. LEONARD MOVING AND STORAGE COMPANY, PRESENTED BILL NO. 3386 FOR THE TRANSPORTATION CHARGES FOR THE MOVE FROM MOUNT CLEMENS, MICHIGAN, TO NEWARK, NEW JERSEY. FOR THIS SERVICE LEONARD WAS PAID $305.15. IN THE AUDIT OF LEONARD'S BILLS FOR TRANSPORTATION CHARGES WE FOUND THAT THIS CARRIER IS INDEBTED TO THE UNITED STATES BECAUSE OF OVERCHARGES IN UNRELATED TRANSPORTATION TRANSACTIONS. HOWEVER, THE LINE-HAUL CARRIER WAS ADJUDICATED A BANKRUPT ON APRIL 17, 1961. ALTHOUGH PROOFS OF CLAIM COVERING LEONARD'S INDEBTEDNESS TO THE UNITED STATES WERE FILED IN THE BANKRUPTCY PROCEEDING, WE HAVE BEEN ADVISED BY THE UNITED STATES ATTORNEY AT DETROIT, MICHIGAN, THAT THE BANKRUPTCY MATTER INVOLVING LEONARD (IN BANKRUPTCY NO. 47845) WAS CLOSED ON NOVEMBER 30, 1962, AND THAT THE GOVERNMENT'S CLAIMS AGAINST THE BANKRUPT HAD BEEN ALLOWED, BUT THAT THERE WERE INSUFFICIENT ASSETS IN WITH WHICH TO PAY ANY PART OF SUCH INDEBTEDNESS.

THE RECORD FURTHER SHOWS THAT YOU INITIALLY PRESENTED YOUR BILL FOR THE WAREHOUSE AND DRAYAGE CHARGES TO THE LINE-HAUL CARRIER BUT UPON BEING INFORMED OF THAT COMPANY'S BANKRUPTCY YOU PRESENTED THE BILL TO THE UNITED STATES. THIS CLAIM FOR $131.60 ACCESSORIAL WAREHOUSE AND DRAYAGE CHARGES WAS DISALLOWED BY OUR OFFICE ON THE BASIS THAT THERE WAS NO PRIVITY OF CONTRACT BETWEEN YOUR COMPANY AND THE UNITED STATES, HENCE NO LEGAL LIABILITY TO THE WAREHOUSEMAN FOR ITS CHARGES. HOWEVER, IN YOUR LETTER OF MAY 20, 1963, YOU CONTEND THAT BILL OF LADING A-8205657 SPECIFICALLY NAMES UNIVERSAL STORAGE WAREHOUSES AS THE CONSIGNEE OF THE SHIPMENT FOR STORAGE- IN-TRANSIT NOT TO EXCEED 90 DAYS, THUS GIVING YOUR COMPANY PRIVITY OF CONTRACT. YOU ALSO CONTEND THAT, SINCE THE SHIPMENT REQUIRED DESTINATION SERVICES WHICH WERE PERFORMED ACCORDING TO GOVERNMENT STANDARDS, PAYMENT SHOULD BE MADE TO THE CARRIER PERFORMING THESE SERVICES, I.E., UNIVERSAL.

THE BILL OF LADING AND THE RECORD CLEARLY SHOW THAT THIS HOUSEHOLD GOODS TRANSPORTATION CONTRACT TO PACK, TRANSPORT, STORE THE GOODS AT DESTINATION WAREHOUSE, AND TO MAKE SUBSEQUENT DELIVERY AT DESTINATION WAS A SINGLE UNIFIED TRANSACTION MADE ONLY FOR THE PURPOSE OF MOVING STAFFSERGEANT KING'S HOUSEHOLD GOODS FROM MOUNT CLEMENS, MICHIGAN, TO HIS NEW STATION, JERSEY CITY, NEW JERSEY. THE PROMISE TO PACK IS DEPENDENT UPON THE PROMISE TO CARRY, SINCE PACKING IS UNNECESSARY WITHOUT TRANSPORTATION; THE PROMISES TO PACK AND TO TRANSPORT WERE INTERDEPENDENT WITH THE AGREEMENT TO STORE AT THE DESTINATION WAREHOUSE AND SUBSEQUENTLY MAKE DELIVERY OF THE GOODS TO THE CONSIGNEE. THE PARTIES TO THIS CONTRACT WERE THE GOVERNMENT AS SHIPPER AND H. L. LEONARD MOVING AND STORAGE COMPANY, THE CARRIER TO WHICH THE GOODS WERE INITIALLY TENDERED. THESE PARTIES TO THE CONTRACT UNDERSTOOD THAT COMPLETE PERFORMANCE OF ALL THE REQUIRED SERVICES, INCLUDING THE STORAGE AT NEWARK, WOULD FULFILL THE CARRIER'S UNDERTAKING AND CONSTITUTE THE CONSIDERATION TO BIND THE GOVERNMENT TO PAYMENT, AND THAT SUCH PAYMENT WOULD BE DUE H. L. LEONARD MOVING AND STORAGE COMPANY.

INSOFAR AS THE BILL OF LADING SETS FORTH THE TERMS ON WHICH THE TRANSPORTATION IS TO BE MADE, IT OPERATES, UPON ACCEPTANCE, AS A CONTRACT BETWEEN THE SHIPPER AND THE CARRIER. MICHIGAN CENTRAL R.CO. V. MARK OWEN AND CO., 256 U.S. 427 (1921); NORTHERN PACIFIC R.CO. V. WALL, 241 U.S. 87 (1916); 9 AM.JUR., CARRIERS, SECTION 412. SINCE THE UNITED STATES HAS NO CONTRACT WITH YOUR COMPANY, IT DOES NOT APPEAR LEGALLY LIABLE TO YOU FOR THE WAREHOUSE CHARGES AND YOUR ONLY RECOURSE WAS AGAINST THE LINE-HAUL CARRIER, WITH WHICH YOU CONTRACTED FOR PAYMENT OF THE WAREHOUSE CHARGES INCURRED THEREUNDER. SINCE THERE IS NO PRIVITY OF CONTRACT BETWEEN YOU AND THE GOVERNMENT AND WE ARE UNAWARE OF WHAT ARRANGEMENTS THE LINE-HAUL CARRIER HAS MADE WITH YOU AS TO THE AMOUNT OF YOUR CHARGES OR HOW THEY ARE TO BE SATISFIED, NO PAYMENT COULD BE MADE BY THE GOVERNMENT DIRECTLY TO YOU FOR THE WAREHOUSE SERVICES. AS YOU NO DOUBT ARE AWARE, AS A GENERAL RULE, A CONTRACT CANNOT BE ENFORCED BY A PERSON WHO IS NOT A PARTY TO IT OR IN PRIVITY WITH IT. MCCLENDON V. T. L. JAMES AND CO., 231 F.2D 802 (1956); UNITED STATES V. VOGES, 124 F.SUPP. 543 (1954); CHONG MOE DAN V. MARYLAND CASUALTY COMPANY OF BALTIMORE, 93 A.2D 286, 288 (1952); STALEY V. NEW, 250 P.2D 893 (1952); 17A C.J.S. CONTRACTS, SECTION 518. THE INITIAL CARRIER IS RESPONSIBLE FOR TRANSPORTATION UNDER THE BILL OF LADING, AND CONTRACT OF TRANSPORTATION COVERS ALL CHARGES INCLUDING STORAGE AND DEMURRAGE, AND CANNOT BE SPLIT UP INTO COMPONENT PARTS. PENNSYLVANIA R.CO., V. CHARLES E. GIBSON, INC., 23 F.SUPP. 857, 860 (1938).

THE FACT THAT YOU ARE SHOWN AS CONSIGNEE ON THE BILL OF LADING CONTRACT DOES NOT PUT YOU IN PRIVITY WITH THE SHIPPER. YOU CANNOT NOW COLLECT FROM THE GOVERNMENT FOR THE SERVICES YOU PERFORMED BECAUSE YOU PERFORMED THE SERVICES FOR THE INITIAL AND LINE-HAUL CARRIER ALONE. ANY PRIVITY OF CONTRACT YOU, AS CONSIGNEE, MIGHT HAVE, IS WITH THE LINE-HAUL CARRIER.

WHILE THE CONTRACT BETWEEN THE GOVERNMENT AND H. L. LEONARD MOVING AND STORAGE COMPANY, INC., WAS FULFILLED AND THAT CORPORATION THUS BECAME ENTITLED TO PAYMENT OF THE PROPER CHARGES FOR THE SERVICES UNDER THE CONTRACT, THAT CORPORATION IS INDEBTED TO THE UNITED STATES IN EXCESS OF THE AMOUNT REMAINING PAYABLE UNDER SUCH CONTRACT AND SUCH AMOUNT WILL ACCORDINGLY BE APPLIED IN REDUCTION OF SUCH INDEBTEDNESS TO THE UNITED STATES.

WE THUS MUST SUSTAIN THE SETTLEMENT CERTIFICATE OF MAY 15, 1963, WHICH DISALLOWED YOUR CLAIM FOR $131.60.