B-153776, AUGUST 11, 1964, 44 COMP. GEN. 70

B-153776: Aug 11, 1964

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1964: REFERENCE IS MADE TO A LETTER DATED JANUARY 30. QUESTION IS RAISED IN THE LETTER ABOUT CHARGES INCURRED BY THE ARMY FOR FUMIGATION SERVICES AT UNITED STATES PORTS ON CERTAIN HOUSEHOLD GOODS SHIPMENTS TRANSPORTED FROM OVERSEAS POINTS TO INTERIOR POINTS IN THE UNITED STATES. WE ARE ASKED TO DETERMINE WHETHER THE DEPARTMENT OF DEFENSE SHOULD CONTINUE TO PROCEED AGAINST DESIGNATED CARRIERS TO COLLECT THE FUMIGATION CHARGES. THEY WERE INCURRED DURING A PERIOD PRIOR TO APRIL 1. WHEN THE RATE TENDERS INVOLVED WERE AMENDED TO INCLUDE PROVISIONS SPECIFICALLY EXEMPTING THE CARRIERS FROM RESPONSIBILITY FOR FUMIGATION CHARGES. WITH CAPTAIN WILLIAMS' LETTER WERE FURNISHED CERTAIN PAPERS INCLUDING A COPY OF CHANGE 1 TO ARMY REGULATIONS AR 55-356.

B-153776, AUGUST 11, 1964, 44 COMP. GEN. 70

TRANSPORTATION - HOUSEHOLD EFFECTS - FUMIGATION SERVICES - OVERSEAS SHIPMENTS CLAIMS AGAINST OCEAN CARRIERS TO RECOVER THE COST OF FUMIGATION SERVICES AT UNITED STATES PORTS ON HOUSEHOLD GOODS SHIPMENTS TRANSPORTED FROM OVERSEAS UNDER TENDERS OF SERVICE OBLIGATING THE CARRIERS FOR "ALL TRANSPORTATION OR INCIDENTAL COSTS," BUT WHICH DO NOT MAKE SPECIFIC REFERENCE TO FUMIGATION SERVICES, SHOULD BE CANCELED, THE PROVISION FOR TRANSPORTATION OR INCIDENTAL COSTS IN THE TENDERS NOT BEING SPECIFIC ENOUGH TO EMBRACE AN ITEM OF EXPENSE BORNE BY THE SHIPPER ACCORDING TO GENERAL CARRIER CUSTOM AND PRACTICE, AS CONFIRMED BY THE TERMS OF OCEAN AND LAND COMMON CARRIER BILLS OF LADING, TERMS INCORPORATED BY REFERENCE IN THE GOVERNMENT BILL OF LADING, AND TO REMOVE ANY DOUBT AS TO CARRIER LIABILITY FOR FUMIGATION COSTS, RATE TENDERS SPECIFICALLY SHOULD EXCLUDE SUCH COSTS.

COMPTROLLER CAMPBELL TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, AUGUST 11, 1964:

REFERENCE IS MADE TO A LETTER DATED JANUARY 30, 1964, FROM CAPTAIN R. A. WILLIAMS, DEPUTY COMPTROLLER OF YOUR AGENCY, TO OUR TRANSPORTATION DIVISION. QUESTION IS RAISED IN THE LETTER ABOUT CHARGES INCURRED BY THE ARMY FOR FUMIGATION SERVICES AT UNITED STATES PORTS ON CERTAIN HOUSEHOLD GOODS SHIPMENTS TRANSPORTED FROM OVERSEAS POINTS TO INTERIOR POINTS IN THE UNITED STATES. WE ARE ASKED TO DETERMINE WHETHER THE DEPARTMENT OF DEFENSE SHOULD CONTINUE TO PROCEED AGAINST DESIGNATED CARRIERS TO COLLECT THE FUMIGATION CHARGES. THEY WERE INCURRED DURING A PERIOD PRIOR TO APRIL 1, 1964, WHEN THE RATE TENDERS INVOLVED WERE AMENDED TO INCLUDE PROVISIONS SPECIFICALLY EXEMPTING THE CARRIERS FROM RESPONSIBILITY FOR FUMIGATION CHARGES.

WITH CAPTAIN WILLIAMS' LETTER WERE FURNISHED CERTAIN PAPERS INCLUDING A COPY OF CHANGE 1 TO ARMY REGULATIONS AR 55-356, AND APPENDIX A OF DSAR 4500.1, EFFECTIVE AUGUST 6, 1962. WE LATER OBTAINED SOME FILES CONTAINING A LIMITED NUMBER OF PAPERS WITH THE ORIGINAL GOVERNMENT BILLS OF LADING SHOWING DETAILS OF MOVEMENTS FROM EUROPEAN POINTS OF ORIGIN TO INTERIOR POINTS OF DESTINATION IN THE UNITED STATES THROUGH THE PORT OF NEW ORLEANS. A STATEMENT ENCLOSED WITH THE LETTER CONTAINS A LISTING OF VARIOUS CARRIERS AND SHOWS THE INDIVIDUAL TARIFF AUTHORITIES IN CONNECTION WITH THE AMOUNTS DUE FROM EACH COMPANY FOR FUMIGATION CHARGES BORNE BY THE DEPARTMENT OF DEFENSE. APPARENTLY MUCH OF THE OCEAN TRANSPORTATION WAS PERFORMED ON VESSELS CONTROLLED BY THE MILITARY SEA TRANSPORTATION SERVICE, ALTHOUGH COMMERCIALLY OWNED AND CONTROLLED VESSELS WERE ALSO USED.

WE HAVE NO COPIES OF PERTINENT COMMERCIAL OCEAN SHIPPING DOCUMENTATION AND WILL CONSIDER THE PROBLEM OF FUMIGATION CHARGES GENERALLY AS THEY RELATE TO THE FEW GOVERNMENT BILLS OF LADING WHICH HAVE BEEN OBTAINED AND THE PROVISIONS OF THE TENDERS AND OTHER DOCUMENTS PERTINENT TO THE TRANSPORTATION CONTRACTS. ONE OF THESE CONTRACTS IS COVERED BY GOVERNMENT BILL OF LADING WY-10436756 ON A CONTAINERIZED SHIPMENT OF HOUSEHOLD GOODS HANDLED BY U.S. VAN LINES, INC.

THE RECORD INDICATES THAT THE SHIPMENT IN QUESTION WAS LOADED ABOARD THE SS. GREEN POINT, A VESSEL APPARENTLY CONTROLLED BY THE MILITARY SEA TRANSPORTATION SERVICE (MSTS). BILL OF LADING WY-10436756 SHOWS THAT THE SHIPMENT WAS PICKED UP AT ORIGIN, VICENZA, ITALY, ON JUNE 28, 1961, FOR TRANSPORTATION TO FORT HOOD, TEXAS, AND THAT "CONEXES LISTED HEREON ARE CERTIFIED SNAIL FREE.' ON ITS BILL NO. N 4820 THE CARRIER BILLED AND COLLECTED $407.68, WHICH WAS PAID IN THE NOVEMBER 1961 ACCOUNTS OF LT.COL. A. G. PERRY. THE APPLICABLE CHARGE AUTHORITY IS SHOWN AS BEING MILITARY RATE TENDER I.C.C. NO. 19. LATER A BILL, DA FORM 1857, WAS ISSUED TO THE CARRIER FOR $86 APPARENTLY TO COVER THE COST OF FUMIGATING SNAIL INFESTED SEA VAN CONTAINERS ON A U.S. ARMY WHARF AT NEW ORLEANS FOR THE DESCRIBED SHIPMENT AND ANOTHER COVERED BY GOVERNMENT BILL OF LADING WY -10436748.

THE CARRIER HAS DENIED LIABILITY FOR THE PAYMENT OF THE FUMIGATION CHARGES, INDICATING THAT THE CONTAINERS WERE CERTIFIED TO BE SNAIL FREE AT THE TIME THE CARRIER RECEIVED THEM AND THAT AT THE TIME THEY WERE TURNED OVER TO MSTS THE CONTAINERS WERE NOT INFESTED. IN THE LETTER OF JANUARY 30, 1964, YOUR AGENCY MAINTAINS THAT UNDER THE CARRIERS' TENDERS (TENDER OF SERVICE AND RATE TENDER) THEY HAVE ACCEPTED LEGAL RESPONSIBILITY FOR THE PAYMENT OF THE FUMIGATION CHARGES. IT IS INDICATED THAT A QUARANTINE EXPENSE PROVISION IN THE UNIFORM STRAIGHT BILL OF LADING, REQUIRING SUCH EXPENSE TO BE BORNE BY THE PROPERTY OWNER MIGHT BE REGARDED AS RELIEVING THE CARRIERS IN THIS INSTANCE BUT THAT CONDITION 2 ON THE BACK OF THE GOVERNMENT BILL OF LADING AND THE LANGUAGE OF THE CARRIERS' TENDERS SERVE TO REMOVE THE PROTECTION AFFORDED BY THE COMMERCIAL BILL OF LADING FORMS. CONDITION 2 READS:

UNLESS OTHERWISE SPECIFICALLY PROVIDED OR OTHERWISE STATED HEREON, THIS BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERN COMMERCIAL SHIPMENTS MADE ON THE USUAL FORMS PROVIDED THEREFOR BY THE CARRIER.

SHIPMENTS OF PROPERTY TRANSPORTED UNDER COMMERCIAL BILLS OF LADING ARE USUALLY SUBJECT TO A CONTRACTUAL PROVISION TO THE EFFECT THAT QUARANTINE EXPENSES OF WHATEVER KIND SHALL BE BORNE BY THE OWNERS OF THE PROPERTY. SEE, FOR EXAMPLE, PART I, RULE 1 (C) OF THE UNIFORM THROUGH EXPORT BILL OF LADING AND RULE 1 (C) OF THE UNIFORM STRAIGHT BILL OF LADING, AS REPRODUCED IN THE UNIFORM FREIGHT CLASSIFICATION, AND IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION. CONTEMPORANEOUS OCEAN BILLS OF LADING ALSO SHOW THAT OCEAN CARRIERS ARE SPECIFICALLY RELIEVED OF LIABILITY FOR ANY PAYMENT OR EXPENSE RESULTING FROM COMPLIANCE WITH LAWS AND REGULATIONS OF ANY KIND IMPOSED BY THE AUTHORITIES WITH RESPECT TO THE GOODS AT ANY PORT OR PLACE OR ANY ACT OR OMISSION OF THE SHIPPER OR CONSIGNEE. A ROUTED THRU-PAC, INC. CONTRACT FORM, APPARENTLY PRINTED IN 1963, INCLUDES A PROVISION IMMUNIZING THAT FORWARDER (ONE OF THE SEVERAL REPORTED AS OWING THE GOVERNMENT MONEY BECAUSE OF FUMIGATION CHARGES) AGAINST CLAIMS FOR LOSS OR DAMAGE RESULTING FROM INSECTS, MOTHS, VERMIN, AND INHERENT VICE, THUS INDIRECTLY INDICATING THAT THE FORWARDER DOES NOT UNDERTAKE TO PAY ANY EXPENSES ARISING FROM OFFICIAL ACTION TAKEN TO REMOVE SUCH INFESTATION AS A PREREQUISITE TO THE ADMISSION OF GOODS INTO A COUNTRY.

IT IS ESTABLISHED THAT CONDITION 2 ON THE BACK OF THE GOVERNMENT BILL OF LADING INCORPORATES BY REFERENCE THOSE RULES AND REGULATIONS GOVERNING COMMERCIAL SHIPMENTS WHICH ARE NOT INCONSISTENT WITH THE TERMS OF THE GOVERNMENT BILL OF LADING. ALCOA S.S. CO. V. UNITED STATES, 338 U.S. 421 (1949); SEABOARD AIR LINE RAILROAD COMPANY V. UNITED STATES, 216 F.2D 855 (1954). CF. UNITED STATES V. YALE TRANSPORT CORP., 184 F.SUPP. 42, 45 (1960). THE PROVISION IN COMMERCIAL BILLS OF LADING PLACING LIABILITY FOR PAYMENT OF QUARANTINE EXPENSES ON THE OWNER OF PROPERTY IS NOT INCONSISTENT WITH ANY OF THE STANDARD OR PRINTED TERMS OF THE GOVERNMENT BILL OF LADING.

INSOFAR AS THE TENDER OF SERVICE (SET FORTH IN AR 55-356, EFFECTIVE DECEMBER 1, 1960), IS CONCERNED, PARAGRAPHS I, Q, V, W, AND X HAVE BEEN INDICATED AS EVIDENCING AN INTENT THAT A CARRIER AGREES TO ASSUME FUMIGATION EXPENSE. THE NAMED PROVISIONS IN THE TENDER OF SERVICE REFLECT SOME OF THE AGREEING CARRIER'S OBLIGATIONS, INCLUDING CLEAN MOTOR VEHICLES, THE REMOVAL OF GOODS TO PREVENT DAMAGE OR CONTAMINATION, THE PACKING OF ARTICLES IN SHIPPING CONTAINERS, THE GOOD CONDITION OF SHIPPING CONTAINERS SO AS TO PROVIDE MAXIMUM PROTECTION FOR THE CONTENTS, AND CUSTOMS CLEARANCE SERVICES. THERE IS NO SPECIFIC REFERENCE TO FUMIGATION SERVICES OR OTHER ACTIONS TAKEN BY GOVERNMENTAL AUTHORITIES TO INSURE THAT ONLY UNINFESTED MATERIALS ARE ADMITTED TO THE DESTINATION COUNTRY.

CAPTAIN WILLIAMS' LETTER REFERS TO CERTAIN PROVISIONS OF CONTAINER TRANSPORT INTERNATIONAL RATE TENDER NO. 10 AS INDICATIVE OF THE CARRIER'S LEGAL OBLIGATION TO ABSORB OR PAY FUMIGATION CHARGES. THE FOLLOWING PROVISIONS ARE REPORTED AS APPEARING IN TENDER NO. 10 AND IN THE TENDERS OF EACH OF THE CARRIERS LISTED AS INDEBTED:

40 (B) RATES NAMED IN THIS TARIFF WILL APPLY FROM POINT OF ORIGIN TO POINT OF DESTINATION AND WILL INCLUDE

(7) ALL TRANSPORTATION OR INCIDENTAL COSTS NECESSARY TO MOVE THE SHIPMENT FROM POINT OF ORIGIN TO POINT OF DESTINATION.

IN CONNECTION WITH THE SHIPMENT MOVING UNDER BILL OF LADING WY 10436756, THE CARRIER'S RATE TENDER WAS MRT I.C.C. NO. 19. IN SECTION II, PAGE 4, OF THAT TENDER THE CARRIER AGREED THAT TRANSPORTATION RATES INCLUDED "ALL LAND AND WATER TRANSPORTATION FROM ORIGIN TO DESTINATION; EXPORT AND IMPORT SERVICE CHARGES; AND THE ADDITIONAL TRANSPORTATION CHARGE FOR SHIPMENTS DESTINED TO SUCH APPLICABLE AREAS.'

WE DO NOT BELIEVE THAT THE ABOVE-QUOTED PROVISIONS FROM THE CARRIERS' RATE TENDERS ARE SPECIFIC ENOUGH EMBRACE AN ITEM OF EXPENSE WHICH ACCORDING TO GENERAL CARRIER CUSTOM AND PRACTICE, AS CONFIRMED BY THE TERMS OF OCEAN AND LAND COMMON CARRIER BILLS OF LADING, WOULD BE BORNE BY A SHIPPER. PROVISIONS SUCH AS THOSE MENTIONED ABOVE IN THE RATE AND SERVICE TENDERS, THEREFORE, WOULD NOT BE IDENTIFIABLE AS OTHERWISE SPECIFICALLY PROVIDING FOR BILL OF LADING TERMS INCONSISTENT WITH THE PREVAILING BILL OF LADING CARRIER EXEMPTIONS FROM LIABILITY ORDINARILY INCORPORATED IN THE GOVERNMENT BILL OF LADING CONTRACT BY VIRTUE OF ITS CONDITION 2. THE WORD ,SPECIFICALLY" IS DEFINED AS MEANING "WITH EXACTNESS AND PRECISION; IN A DEFINITE MANNER.' WEBSTER'S NEW INTERNATIONAL UNABRIDGED DICTIONARY, 2D EDITION, 1951.

WHILE PARAGRAPH X OF THE TENDER OF SERVICE REFERS TO "ALL CUSTOMS CLEARANCE SERVICES" AND TO COMPLIANCE WITH "PERTINENT MILITARY AND CUSTOMS REGULATIONS," AND WHILE SOME OF THE RATE TENDERS DEFINE TRANSPORTATION RATES TO INCLUDE "EXPORT AND IMPORT SERVICE CHARGES," WE BELIEVE THAT THESE PROVISIONS REFER TO THE PREPARATION AND FILING WITH APPROPRIATE AUTHORITIES OF THE DOCUMENTS NECESSARY TO COMPLY WITH CUSTOMS, IMMIGRATION, COAST GUARD AND PUBLIC HEALTH AND OTHER OFFICIAL REQUIREMENTS. SEE, GENERALLY, FLOOD, ADVANCED TRAFFIC MANAGEMENT, 1959, PAGES 287, 288; FAIR, PORT ADMINISTRATION IN THE UNITED STATES, 1954, PAGES 30-37.

WE NOTE ALSO THAT CONTAINER TRANSPORT INTERNATIONAL, INC. FREIGHT TARIFF NO. 10, AS WELL AS MRT I.C.C. NO. 19, CONTAINS PROVISIONS EXEMPTING THE CARRIERS FROM LIABILITY FOR LOSS AND DAMAGES RESULTING FROM INSECTS, MOTHS AND VERMIN, AS IN THE CASE OF ROUTED THRU-PAC'S CONTRACT FORM. INDICATED, AN IMPLIED AGREEMENT BY THE CARRIER THAT IT WOULD PAY FOR FUMIGATION NECESSARY TO RID FREIGHT OR CONTAINERS OF SUCH PESTS WOULD APPEAR TO BE INCONSISTENT WITH ITS USUAL CONTRACTUAL UNDERTAKING. IN THAT KIND OF SITUATION CLEAR AND UNAMBIGUOUS LANGUAGE EXPRESSLY BINDING THE CARRIER WOULD SEEM ESSENTIAL TO MAKE THE CARRIER'S LIABILITY FOR FUMIGATION COSTS OF THE NATURE INVOLVED LEGALLY ENFORCEABLE.

THE DEPARTMENT OF DEFENSE IS SAID TO RECOGNIZE THE EQUITIES IN FAVOR OF THE CARRIERS WHERE THERE IS INVOLVED SNAIL INFESTATION OVER WHICH THEY APPARENTLY HAVE LITTLE CONTROL AND WHEN THEY ARE NOT NEGLIGENT IN CARING FOR THE GOODS ENTRUSTED TO THEIR CARE; THE DEPARTMENT IS NOW ACCEPTING TENDERS OF RATES WHICH SPECIFICALLY EXCLUDE THIS COST. WE CONCUR IN THIS APPROACH TO THE PROBLEM AS A MEANS OF REMOVING ANY DOUBT THAT MIGHT EXIST AS TO LIABILITY FOR FUMIGATION COSTS IN THE KIND OF SITUATION INVOLVING THE TYPE OF BILL OF LADING AND TENDER CONTRACT HERE CONSIDERED.

IT IS THEREFORE OUR OPINION THAT THE CLAIMS AGAINST THE CARRIERS TO REIMBURSE THE DEPARTMENT OF DEFENSE FOR FUMIGATION COSTS IN CONNECTION WITH THE SHIPMENT MOVING UNDER BILL OF LADING WY-10436756 AND OTHER SHIPMENTS HANDLED UNDER THE SAME CONDITIONS SHOULD BE CANCELED.