B-158315, MAR. 9, 1966, 45 COMP. GEN. 556

B-158315: Mar 9, 1966

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STORE THE GOODS WAS A SINGLE UNIFIED TRANSACTION MADE FOR THE PURPOSE OF MOVING THE HOUSEHOLD GOODS OF A SERVICE MEMBER FROM AN ORIGIN POINT TO A DESIGNATED DESTINATION HAVING BEEN DESTROYED BY FIRE WITHIN THE 90-DAY PERIOD THE GOODS WERE TO BE STORED AT DESTINATION BEFORE DELIVERY WAS ACCOMPLISHED. THE CARRIER IS NOT ENTITLED TO LINE-HAUL TRANSPORTATION AND ACCESSORIAL SERVICE CHARGES. THE GOVERNMENT IS NOT LIABLE FOR ANY PART OF THE CONTRACT PRICE. 1966: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7. THE BILLS OF LADING SHOW THAT THE GOODS WERE SHIPPED FOR MILITARY PERSONNEL AND SHOW THE CONSIGNEE AS TRANSPORTATION OFFICER. THE "CONSIGNEE'S CERTIFICATE OF DELIVERY" ON THE BILLS OF LADING SHOW THE GOODS WERE CARRIED TO FAYETTEVILLE.

B-158315, MAR. 9, 1966, 45 COMP. GEN. 556

TRANSPORTATION - HOUSEHOLD EFFECTS - STORAGE IN TRANSIT - DAMAGE, LOSS, ETC. - SERVICE CHARGES THE RESERVATION IN PROGRAM AND PROJECT LOAN AGREEMENTS FOR THE SUSPENSION OR GOVERNMENT BILLS OF LADING SHOWING EACH TRANSPORTATION CONTRACT TO PACK, TRANSPORT, AND STORE THE GOODS WAS A SINGLE UNIFIED TRANSACTION MADE FOR THE PURPOSE OF MOVING THE HOUSEHOLD GOODS OF A SERVICE MEMBER FROM AN ORIGIN POINT TO A DESIGNATED DESTINATION HAVING BEEN DESTROYED BY FIRE WITHIN THE 90-DAY PERIOD THE GOODS WERE TO BE STORED AT DESTINATION BEFORE DELIVERY WAS ACCOMPLISHED, THE CARRIER IS NOT ENTITLED TO LINE-HAUL TRANSPORTATION AND ACCESSORIAL SERVICE CHARGES, AND THE CONDITIONAL PAYMENT MADE TO THE CARRIER UNDER THE PROCEDURE AUTHORIZED BY THE GENERAL ACCOUNTING OFFICE MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, TITLE 5, SECTION 3075, NOT HAVING WAIVED PROPER ACCOMPLISHMENT OF THE BILLS OF LADING, THE CARRIER REMAINED LIABLE FOR THE SHIPMENTS DURING STORAGE AND UNTIL DELIVERY TO THE CONSIGNEE OR OWNER, THE SERVICES UNDER THE CONTRACT BEING INTERDEPENDENT AND NOT SEVERABLE; THEREFORE, ABSENT THE PERFORMANCE CALLED FOR BY THE CONTRACT, THE GOVERNMENT IS NOT LIABLE FOR ANY PART OF THE CONTRACT PRICE.

TO GREYHOUND VAN LINES, INC., MARCH 9, 1966:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1966, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATES, WHICH DISALLOWED YOUR CLAIMS (OUR CLAIMS TK- 795591, TK-795592, TK-795593, TK-795594 AND TK-795595) FOR LINE-HAUL TRANSPORTATION AND ACCESSORIAL SERVICE CHARGES IN CONNECTION WITH FIVE SHIPMENTS OF HOUSEHOLD GOODS.

THE SHIPMENTS MOVED UNDER GOVERNMENT BILLS OF LADING FROM VARIOUS POINTS OF ORIGIN. THE BILLS OF LADING SHOW THAT THE GOODS WERE SHIPPED FOR MILITARY PERSONNEL AND SHOW THE CONSIGNEE AS TRANSPORTATION OFFICER, FORT BRAGG, NORTH CAROLINA. THE BILLS OF LADING ALL BEAR NOTATIONS SUBSTANTIALLY AS FOLLOWS:

STORAGE IN TRANSIT AUTHORIZED AT DESTINATION NOT TO EXCEED 90 DAYS. CARRIER NOTIFY DESTINATION TRANSPORTATION OFFICER OF ARRIVAL OF HHGS PRIOR TO PLACEMENT IN STORAGE.

THE "CONSIGNEE'S CERTIFICATE OF DELIVERY" ON THE BILLS OF LADING SHOW THE GOODS WERE CARRIED TO FAYETTEVILLE, NORTH CAROLINA, AND THE NAME OF THE TRANSPORTATION COMPANY MAKING DELIVERY THERE AS ,GREYVAN LINES, INC., " AND ARE SIGNED BY EITHER JAMES E. LAWRENCE, JR., OR W. C. IRELAND WHOSE SIGNATURES ARE FOLLOWED BY THE INITIALS "G.V.S.' APPARENTLY THE INITIALS "G.V.S.' STAND FOR GREYVAN STORAGE. THE GOODS WERE PLACED IN YOUR STORAGE WAREHOUSE, GREYVAN STORAGE COMPANY AT FAYETTEVILLE, NORTH CAROLINA, AND WERE DESTROYED WITHIN THE 90-DAY STORAGE PERIOD BY FIRE REPORTEDLY CAUSED BY LIGHTNING WHEN THE WAREHOUSE BURNED ON AUGUST 23, 1959. THE MAIN ENTRANCE TO FORT BRAGG IS UNDERSTOOD TO BE ON STATE HIGHWAY 87, THIRTEEN HIGHWAY-MILES NORTHWEST OF THE CENTER OF FAYETTEVILLE, NORTH CAROLINA, AND 2 MILES NORTHWEST OF ITS CORPORATE LIMITS.

PRIOR TO THE FIVE YOU SUBMITTED YOUR BILLS FOR LINE-HAUL AND ACCESSORIAL SERVICES IN CONNECTION WITH GOVERNMENT BILLS OF LADING WY 8756736, DATED MAY 22, 1959 (TK-795593), AND WY-9903895, DATED JULY 18, 1959 (TK- 795591). ALTHOUGH BOTH BILLS WERE PAID, ONE BEFORE AND ONE SHORTLY AFTER THE FIRE, YOUR BILL NO. 118-198 (TK-795593) IS NOT SUPPORTED BY A CERTIFICATE THAT THE GOODS WERE PLACED IN STORAGE AS REQUIRED BY 5 GAO 3075.20.

BILLS FOR THE OTHER THREE MOVEMENTS WERE PAID ON YOUR CERTIFICATION MADE AFTER THE GOODS WERE DESTROYED BY FIRE AT THE DESTINATION STORAGE IN TRANSIT POINT. EACH OF THESE BILLS IS SUPPORTED BY THE GOVERNMENT BILL OF LADING ON WHICH THE CONSIGNEE'S CERTIFICATE IS SIGNED BY JAMES E. LAWRENCE, JR., FOLLOWED BY THE INITIALS "G.V.S., " AND A DESTINATION STORAGE IN TRANSIT CERTIFICATE WHICH READS AS FOLLOWS:

THE HOUSEHOLD GOODS DESCRIBED ON (GOVERNMENT BILL OF LADING NO.) WERE PLACED IN THE CARRIER'S STORAGE WAREHOUSE AT FAYETTEVILLE, NORTH CAROLINA ON (DATE), AND WILL BE PERMITTED TO REMAIN FOR A PERIOD OF (90 DAYS) OR SUCH SHORTER PERIOD AS MAY MEET THE CONSIGNEE'S OR OWNER'S DEMANDS. CARRIER ASSUMES FULL CARRIER LIABILITY FOR THE SHIPMENT DURING SUCH STORAGE AND UNTIL DELIVERY TO THE CONSIGNEE OR OWNER WITHIN THE DESIGNATED STORAGE PERIOD.

THE RECORDS IN TK-795592 AND TK-795594 SHOW THAT YOU SUBSEQUENTLY CLAIMED AND WERE PAID FOR WAREHOUSE HANDLING AND STORAGE IN TRANSIT FOR PERIODS TERMINATING ON THE DATE OF THE FIRE. AFTER AN APPROPRIATE INVESTIGATION, WE ISSUED NOTICES OF OVERCHARGE (FORMS 1003) ON MAY 21, 1963, REQUESTING REFUND OF ALL AMOUNTS WHICH HAD BEEN PAID IN CONNECTION WITH THE FIVE BILL OF LADING CONTRACTS, AND WHEN YOU FAILED TO MAKE REFUND, THE AMOUNTS WERE RECOVERED FROM BILLS OTHERWISE PAYABLE TO YOUR COMPANY. YOU FILED CLAIMS ON THE FIVE SHIPMENTS AND THE CLAIMS WERE DISALLOWED.

YOU INDICATE THAT YOU ARE AWARE OF THE DECISION IN NATIONAL TRAILER CONVOY, INC. V. UNITED STATES, 170 CT.CL. 823, 345 F.2D 573, WHICH DENIED THE RECOVERY OF FREIGHT CHARGES WHERE THE CARGO WAS LOST OR DESTROYED. THAT CASE AS WELL AS IN THE SUBJECT CLAIMS, WHETHER YOUR COMPANY IS ENTITLED TO ITS CHARGES IS FOR DETERMINATION UNDER THE BILL OF LADING CONTRACT. SUCH CONTRACT, LIKE THAT CONSIDERED BY THE SUPREME COURT IN ALCOA STEAMSHIP CO. V. UNITED STATES, 338 U.S. 421 (1949), AND STRICKLAND TRANSPORTATION CO. V. UNITED STATES, 223 F.2D 466, 467 (1955), EXPRESSLY CONDITIONS PAYMENT UPON SUBMISSION OF THE BILL OF LADING "PROPERLY ACCOMPLISHED" AND OF A FREIGHT VOUCHER ON THE PROPER FORM. THESE CASES MAKE IT CLEAR THAT THE BILL OF LADING CANNOT BE PROPERLY ACCOMPLISHED UNTIL THERE HAS BEEN A RECEIPT OF THE SHIPMENT BY THE CONSIGNEE AT DESTINATION AND ,DELIVERY OF THE SHIPMENT IS A CONDITION PRECEDENT TO LIABILITY FOR FREIGHT.' SEE STRICKLAND AT PAGE 468.

THE SUBJECT BILLS OF LADING WERE NOT PROPERLY ACCOMPLISHED SINCE THE GOODS WERE NOT DELIVERED TO THE CONSIGNEE AND HE DID NOT EXECUTE THE CONSIGNEE'S CERTIFICATE OF DELIVERY. NOR CAN IT BE SAID THAT CONDITIONAL PAYMENT UNDER THE PROCEDURE AUTHORIZED BY GENERAL ACCOUNTING OFFICE MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, TITLE 5, SECTION 3075, WAIVED A PROPER ACCOMPLISHMENT OF THE BILL OF LADING SINCE SUCH PAYMENT IS CONDITIONED UPON FULFILLMENT OF THE BILL OF LADING CONTRACT IN THAT DELIVERY ULTIMATELY MUST BE MADE AND THE STORAGE IN TRANSIT CERTIFICATE ITSELF INDICATES YOU AGREED TO CONTINUANCE OF "FULL CARRIER LIABILITY FOR THE SHIPMENT DURING SUCH STORAGE AND UNTIL DELIVERY TO THE CONSIGNEE OR OWNER.'

SINCE THESE HOUSEHOLD GOODS WERE NOT DELIVERED TO THE CONSIGNEE AT DESTINATION, THE GOVERNMENT IS NOT LIABLE FOR THE FREIGHT CHARGES, AND BECAUSE ALL OF THE SERVICES CALLED FOR WERE PART OF A SINGLE TRANSACTION, YOUR RIGHT TO RECOVER SUCH CHARGES EXIST ONLY IF THE CONTRACT MADE WAS SEVERABLE RATHER THAN ENTIRE, EVEN ASSUMING THAT YOU CAN SHOW THAT THE BILLS OF LADING WERE PROPERLY ACCOMPLISHED.

YOU CONTEND THAT THE TRANSPORTATION SERVICES WERE FULLY RENDERED AND THAT THE CONTRACT OF CARRIAGE WAS FULLY PERFORMED WHEN THE GOODS WERE PLACED IN YOUR WAREHOUSE FOR STORAGE AT FAYETTEVILLE AND THAT ACCORDINGLY YOU ARE ENTITLED TO THE FREIGHT CHARGES CLAIMED. IN EFFECT, YOU CONTEND THAT THE BILL OF LADING CONTRACT CAN BE BROKEN INTO SEPARATE AND INDEPENDENT AGREEMENTS AND THAT YOU CAN BE PAID FOR ONE AGREEMENT ALTHOUGH OTHER UNDERTAKINGS OF THE CONTRACT HAVE NOT BEEN COMPLETED.

THE BILLS OF LADING AND THE RECORD CLEARLY SHOW THAT EACH OF THESE HOUSEHOLD GOODS TRANSPORTATION CONTRACTS TO PACK, TRANSPORT AND STORE THE GOODS WAS A SINGLE UNIFIED TRANSACTION MADE ONLY FOR THE PURPOSE OF MOVING THE HOUSEHOLD GOODS OF A SERVICE MEMBER FROM AN ORIGIN POINT TO FORT BRAGG, NORTH CAROLINA.

ONE TEST OF SEVERABILITY OF A CONTRACT IS WHETHER TWO OR MORE PROMISES ARE SO INTERDEPENDENT THAT THE PARTIES WOULD NOT HAVE ENTERED INTO ONE WITHOUT THE OTHER. LEEKER V. MARCOTTE, 15 PAC. 21 969 (1932); LINEBARGER V. DEVINE, 214 PAC. 532 (1923). IT HAS BEEN HELD, ALSO, THAT WHERE THERE IS A SINGLE ASSENT TO A WHOLE TRANSACTION INVOLVING SEVERAL THINGS OR SEVERAL KINDS OF PROPERTY, THE CONTRACT IS ALWAYS ENTIRE. ORENSTEIN V. KAHN, 119 ATL. 444, 446, (1922). SEE, ALSO, UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289, (1942).

THE PROMISES IN THE PRESENT CASE WERE INTERDEPENDENT--- THE ONE WOULD NOT HAVE BEEN MADE WITHOUT THE OTHERS. THUS THE ENGAGEMENT TO TRANSPORT WOULD NOT HAVE BEEN MADE WITHOUT THE AGREEMENT TO STORE, SINCE ARRIVAL OF THE GOODS AT DESTINATION OBVIOUSLY WAS NOT DESIRED PRIOR TO EACH SERVICEMAN LOCATING QUARTERS AT HIS NEW PLACE OF ASSIGNMENT AND DESIRING DELIVERY OF THE GOODS TO HIS NEW RESIDENCE. THE PROMISE TO PACK FOR SHIPMENT WAS DEPENDENT UPON THE AGREEMENT TO CARRY, SINCE PACKING WOULD HAVE BEEN UNNECESSARY WITHOUT TRANSPORTATION; THE DRAYAGE AGREEMENT DEPENDED UPON THE PROMISES TO STORE, PACK, AND TRANSPORT, SINCE WITHOUT THESE PROMISES, DRAYAGE TO THE CARRIER'S WAREHOUSE WOULD HAVE BEEN UNNECESSARY. THE INTENTION OF THE PARTIES TO PUT THE GOODS IN THE CARRIER'S CUSTODY FROM THE VERY INSTANT OF PICK-UP AT ORIGIN UNTIL FINAL DELIVERY AT DESTINATION IS SHOWN BY THE TENDER AND ACCEPTANCE OF THE GOODS ON BILLS OF LADING WITH THEIR REFERENCE TO THE STORAGE SERVICE. THE GOODS WERE ACTUALLY STILL IN YOUR CUSTODY, BEING HELD IN STORAGE FOR AT LEAST 90 DAYS FOR ULTIMATE DELIVERY WHEN THE FIRE OCCURRED, ALSO EVIDENCING THE SINGLENESS OF PURPOSE AND UNIFICATION OF THE COMBINED SERVICES IN THIS CONTRACT. CLEARLY, THE PARTIES REALIZED THAT THE PERFORMANCE OF ONE OR MORE OF THE SERVICES, WITHOUT THE PERFORMANCE OF ALL, WOULD BE OF NO BENEFIT TO THE GOVERNMENT AND WOULD NOT BE A FULFILLMENT OF YOUR UNDERTAKING.

THE RECORD AS PRESENTED HERE SHOWS THAT THE PARTIES ASSENTED TO THE PROMISES CONCERNING THE PERFORMANCE OF THE DIFFERENT SERVICES AS A SINGLE WHOLE; THAT CONSUMMATION OF A BARGAIN BETWEEN THE GOVERNMENT AND THE CARRIER DEPENDED UPON INCLUSION OF ALL OF THE SERVICES CALLED FOR; AND THAT FULFILLMENT OF THE CARRIER'S ENGAGEMENT REQUIRED COMPLETE PERFORMANCE OF EACH OF THE SERVICES. ACCORDINGLY, THE CONTRACT WAS ENTIRE AND NOT SEVERABLE; IN THE ABSENCE OF DELIVERY OF THE GOODS AT DESTINATION, THERE WAS NOT THE PERFORMANCE CALLED FOR BY CONTRACT, AND THE UNITED STATES IS NOT LIABLE FOR ANY PART OF THE CONTRACT PRICE. THE ACTIONS TAKEN IN DISALLOWING YOUR INVOLVED CLAIMS ARE ACCORDINGLY SUSTAINED.