B-156490, JUL. 15, 1965

B-156490: Jul 15, 1965

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JR.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 16. THE SETTLEMENT WAS ADDRESSED TO BALTIMORE STORAGE COMPANY. THE BALTIMORE STORAGE COMPANY'S ORIGINAL BILL FOR THE PUERTO RICAN SEGMENT OF THE INVOLVED TRANSPORTATION WAS FOR $575.64. 100 POUNDS WAS AUTHORIZED FOR USE AS A BASIS FOR COMPUTATION OF THE APPLICABLE CHARGES IN A LETTER DATED JULY 31. YOUR PRESENT CLAIM IS FOR AN ALLEGED UNDERPAYMENT OF $150.95. 000 POUNDS WHICH WAS AUTHORIZED BY YOU IN A LETTER DATED DECEMBER 1. SHOULD BE DISREGARDED SINCE ERRONEOUS SHIPPING CONTAINER WEIGHTS WERE USED. 760 POUNDS BECAUSE THAT WAS THE ACCEPTED SCALE WEIGHT OF HIS HOUSEHOLD GOODS WHEN SHIPPED PREVIOUSLY FROM NASHVILLE. BECAUSE SEVERAL ARTICLES HAD BEEN REMOVED AND WITHHELD FROM THE GOODS WHEN THEY WERE SHIPPED FROM SAN JUAN.

B-156490, JUL. 15, 1965

TO MR. C. W. SIEGMUND, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 16, 1965, ADDRESSED TO PRESIDENT LYNDON B. JOHNSON AND REFERRED TO OUR OFFICE FOR HANDLING. YOUR LETTER IN EFFECT REQUESTS REVIEW OF OUR SETTLEMENT DATED MARCH 8,1963.

THE SETTLEMENT WAS ADDRESSED TO BALTIMORE STORAGE COMPANY, BALTIMORE, MARYLAND, AND IT DISALLOWED $183.71 OF THAT COMPANY'S TOTAL CLAIM FOR $1,457.68 IN CONNECTION WITH THE TRANSPORTATION OF HOUSEHOLD GOODS OWNED BY DR. L. N. MILLER FROM SAN JUAN, PUERTO RICO, TO TOWSON, MARYLAND, DURING AUGUST 1961, UNDER GOVERNMENT BILL OF LADING A 3844118.

THE BALTIMORE STORAGE COMPANY'S ORIGINAL BILL FOR THE PUERTO RICAN SEGMENT OF THE INVOLVED TRANSPORTATION WAS FOR $575.64, INCLUDING CERTAIN CHARGES FOR CARTAGE AND FOR LOADING AND WRAPPING BASED ON A TOTAL NET WEIGHT OF 7,410 POUNDS DERIVED FROM WEIGHT REPORTS (SCALE TICKETS) PREPARED BY THE PORTORICAN PAPER PRODUCTS COMPANY, INC. OUR SETTLEMENT ALLOWED THE BALTIMORE STORAGE COMPANY $391.93 FOR YOUR HANDLING, BASED UPON A TOTAL NET WEIGHT OF 4,100 POUNDS. THIS NET WEIGHT OF 4,100 POUNDS WAS AUTHORIZED FOR USE AS A BASIS FOR COMPUTATION OF THE APPLICABLE CHARGES IN A LETTER DATED JULY 31, 1962, FROM C. W. SIEGMUND, THE PRESIDENT OF YOUR COMPANY, TO DR. MILLER, THE OWNER OF THE GOODS. YOUR PRESENT CLAIM IS FOR AN ALLEGED UNDERPAYMENT OF $150.95, BASED UPON A TOTAL NET WEIGHT OF 7,000 POUNDS WHICH WAS AUTHORIZED BY YOU IN A LETTER DATED DECEMBER 1, 1961, TO THE U.S. DEPARTMENT OF AGRICULTURE AT NEW ORLEANS, LOUISIANA. YOU INDICATE THAT THE LETTER OF JULY 31, 1962, FROM THE PRESIDENT OF YOUR COMPANY, SHOULD BE DISREGARDED SINCE ERRONEOUS SHIPPING CONTAINER WEIGHTS WERE USED.

THERE HAS BEEN CONSIDERABLE CORRESPONDENCE BETWEEN DR. MILLER AND YOUR COMPANY CONCERNING THE CORRECT WEIGHT TO BE USED IN COMPUTING THE ALLOWABLE CHARGES. DR. MILLER FELT THAT THE WEIGHT TO BE USED SHOULD BE SOMEWHAT LESS THAN 5,760 POUNDS BECAUSE THAT WAS THE ACCEPTED SCALE WEIGHT OF HIS HOUSEHOLD GOODS WHEN SHIPPED PREVIOUSLY FROM NASHVILLE, TENNESSEE, TO PUERTO RICO, AND BECAUSE SEVERAL ARTICLES HAD BEEN REMOVED AND WITHHELD FROM THE GOODS WHEN THEY WERE SHIPPED FROM SAN JUAN.

THERE SEEMS TO BE NO DEFINITELY SUPPORTABLE WEIGHT BASIS THAT MAY BE RECOGNIZED AS THE ACTUAL NET WEIGHT OF THE SHIPMENT AS HANDLED BY YOU AND YOUR CONNECTING CARRIERS. SUCH AN UNDERSTANDING IS REFLECTED IN YOUR COMPANY PRESIDENT'S LETTER OF JULY 31, 1962, IN WHICH HE STATED THAT HE HAD ,NEVER SEEN SUCH BOTCHED UP SCALE TICKETS," AND HE DID "NOT UNDERSTAND HOW SCALE OPERATOR ARRIVED AT FIGURES SHOWN.' IN VIEW OF THE INABILITY TO ARRIVE AT A RELIABLE WEIGHT BASIS, YOUR COMPANY PRESIDENT AT THAT TIME STATED THAT "WE ARE PERFECTLY WILLING, IN ORDER THAT BALTIMORE STORAGE COMPANY MAY RECEIVE ITS SHARE OF THE JOB, TO ACCEPT THE ARRIVED AT PROBABLE NET WEIGHT OF 4100 S., PROVIDED THAT THIS IS ACCEPTABLE TO THE GOVERNMENT.'

THE LETTER OF JULY 31, 1962, COMING FROM THE CHIEF EXECUTIVE OFFICER OF YOUR COMPANY, EFFECTIVELY SUPERSEDED YOUR OFFER CONTAINED IN LETTER OF DECEMBER 1, 1961, WHICH EXPRESSED A WILLINGNESS TO USE 7,000 POUNDS AS THE CORRECT WEIGHT FOR CHARGE COMPUTATION PURPOSES. THERE IS NOTHING IN THE RECORD TO ESTABLISH WHAT PARTICULAR SIZE VANS (CONTAINERS) WERE USED EXCEPT FOR THE INDICATION ON THE GOVERNMENT BILL OF LADING THAT THE SHIPMENT MEASURED 1,100 CUBIC FEET. NOTHING IN THE RECORD SHOWS PRECISELY HOW MANY POUNDS OF HOUSEHOLD GOODS BELONGING TO DR. MILLER WERE PLACED IN EACH CONTAINER.

IN YOUR LETTER OF AUGUST 24, 1964, TO THE U.S. DEPARTMENT OF AGRICULTURE AT WASHINGTON, D.C., YOU POINT OUT THAT 1,100 CUBIC FEET WHEN MULTIPLIED BY SEVEN POUNDS PER CUBIC FOOT FOR COMPUTING THE ESTIMATED WEIGHT, WOULD PRODUCE A TOTAL OF 7,700 POUNDS. BUT FROM PROVISIONS CONTAINED IN A. H. BULL STEAMSHIP COMPANY TARIFFS WE UNDERSTAND THAT SIX POUNDS PER CUBIC FOOT IS USED IN DETERMINING THE CONSTRUCTIVE WEIGHT TO BE USED FOR "FREIGHTING PURPOSES" BASED "ON THE INTERIOR CAPACITY OF THE CONTAINER.' THUS, ON THE BASIS OF BULL STEAMSHIP COMPANY TARIFFS, HOUSEHOLD GOODS OCCUPYING 1,100 CUBIC FEET WOULD NOT EXCEED 6,600 POUNDS FOR CHARGE PURPOSES.

IN LETTER DATED SEPTEMBER 22, 1961, DR. MILLER REPORTED TO YOUR COMPANY THAT:

"OUR FURNITURE WAS LOADED JULY 31, 1961. ALL ITEMS LISTED ON THE INVOICE WERE LOADED IN ONE VAN WITH THE EXCEPTION OF A FEW PIECES WHICH COULD NOT HAVE WEIGHED OVER 100 POUNDS AT THE MOST. YOUR REPORT SHOWS TWO TRUCKS WERE USED WITH NET WEIGHT OF OUR FURNITURE AND PERSONAL EFFECTS BEING 3,210 POUNDS ON ONE TRUCK AND 4,200 POUNDS ON THE OTHER. WEIGHING WAS NOT PERFORMED UNTIL AUGUST 4, FOUR DAYS AFTER FURNITURE WAS LOADED.'

IN THAT LETTER DR. MILLER ALSO QUESTIONED YOUR ALLEGATION (WHICH YOU LATER WITHDREW) THAT 950 POUNDS ADDITIONAL EFFECTS BELONGING TO HIM WERE LOADED AT THE POST OFFICE BUILDING IN SAN JUAN.

FROM THE CONFLICTING INFORMATION IN THIS RECORD IT IS OBVIOUSLY DIFFICULT, IF NOT IMPOSSIBLE, TO DETERMINE THE ACTUAL NET WEIGHT OF DR. MILLER'S HOUSEHOLD GOODS. IN THESE CIRCUMSTANCES, IT IS UNDERSTANDABLE THAT THE PRESIDENT OF YOUR COMPANY WAS PROMPTED TO STIPULATE AN AGREED WEIGHT WHICH HE BELIEVED SHOULD BE 4,100 POUNDS. ACTING ON THIS PROFFER OF AN AGREED WEIGHT, OUR OFFICE THEREUPON ALLOWED MOST OF THE CHARGES ORIGINALLY CLAIMED, DISALLOWING A TOTAL OF $183.71. WE WOULD NOT NOW BE WARRANTED IN DISTURBING THAT SETTLEMENT CONSIDERING THE UNCERTAINTY AS TO THE ACTUAL WEIGHT AND THE ABSENCE OF ANY INFORMATION IN THE RECORD TO CREATE A JUSTIFIABLE DOUBT THAT THE AGREED WEIGHT OF 4,100 POUNDS WAS NOT WITHIN THE REASONABLE RANGE OF PROBABILITY.

IN THIS SITUATION WE FEEL THAT THE BEST INTERESTS OF THE UNITED STATES REQUIRE ADHERENCE TO THE AGREED WEIGHT BASIS AND SINCE THE SETTLEMENT WAS CONSISTENT WITH THIS VIEW, IT IS SUSTAINED.