B-160670, FEB. 16, 1967

B-160670, FEB. 16, 1967

TO THE LOUISIANA DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1966, IN EFFECT REQUESTING RECONSIDERATION OF CLAIMS DIVISION SETTLEMENT OF JANUARY 5, 1959, WHICH DENIED YOUR CLAIM FOR REFUND OF $210.28, REPRESENTING EXCESS COST FOR SHIPMENT OF YOUR HOUSEHOLD GOODS FROM COLORADO SPRINGS, COLORADO, TO FORT MONMOUTH, NEW JERSEY, IN 1958 WHILE SERVING IN THE ARMY.

BY ORDERS DATED JULY 9, 1958, YOU WERE TRANSFERRED ON A PERMANENT CHANGE OF STATION FROM FORT CARSON, COLORADO, TO FORT MONMOUTH, NEW JERSEY. THE RECORD INDICATES THAT INCIDENT TO THAT TRANSFER YOUR HOUSEHOLD GOODS WERE SHIPPED ON GOVERNMENT BILL OF LADING WY-8 481 957, DATED JULY 11, 1958, FROM COLORADO SPRINGS, COLORADO, TO FORT MONMOUTH AT A COST TO THE GOVERNMENT OF $1,021.59. ACCORDING TO THE WEIGHT CERTIFICATE, DATED JULY 16, 1958, THE SHIPMENT WEIGHED 40,160 POUNDS GROSS, 32,640 POUNDS TARE, RESULTING IN A NET WEIGHT OF 7,520 POUNDS. SINCE YOU HELD THE RANK OF SPECIALIST, SIXTH CLASS, PARAGRAPH 8001 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME OF THE SHIPMENT PROVIDED FOR A WEIGHT ALLOWANCE OF 5,775 POUNDS (WHICH INCLUDED 5 PERCENT FOR PACKING MATERIALS) TO BE TRANSPORTED AT NO COST TO YOU. SINCE YOUR SHIPMENT EXCEEDED BY 1,745 POUNDS YOUR AUTHORIZED WEIGHT, THE GOVERNMENT COLLECTED FROM YOU $210.28 AS EXCESS COST.

YOU CLAIM THAT THE SHIPMENT CONTAINED PROFESSIONAL BOOKS WEIGHING APPROXIMATELY 500 POUNDS FOR WHICH YOU SHOULD NOT HAVE BEEN CHARGED. PARAGRAPH 8002 OF THE JOINT TRAVEL REGULATIONS (CHANGE 65, JANUARY 1, 1958), ISSUED PURSUANT TO THE PERTINENT STATUTORY AUTHORITY, 37 U.S.C. 406, PROVIDED FOR SHIPMENT OF PROFESSIONAL BOOKS, PAPERS AND EQUIPMENT WITHOUT CHARGE AGAINST THE MEMBER'S PRESCRIBED WEIGHT ALLOWANCE OF HOUSEHOLD EFFECTS WHEN CERTIFIED BY HIM THAT SUCH ITEMS WERE NECESSARY IN THE PERFORMANCE OF HIS OFFICIAL DUTIES. THE PARAGRAPH FURTHER PROVIDED AS FOLLOWS:

"* * * SUCH BOOKS, PAPERS, AND EQUIPMENT WILL BE PACKED SEPARATELY AND THE CONTAINERS WILL BE MARKED "PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT.' THE WEIGHT OF SUCH CONTAINERS WILL BE SHOWN SEPARATELY ON THE BILLS OF LADING OR OTHER SHIPPING DOCUMENTS.'

THERE IS NO INDICATION ON THE BILL OF LADING THAT THE SHIPMENT CONTAINED PROFESSIONAL BOOKS. THE SPACE ON THE BILL FOR INSERTION OF THE NUMBER OF POUNDS OF PROFESSIONAL BOOKS IS BLANK. UNDER THE REGULATIONS, IT IS MANDATORY THAT THE WEIGHT OF THE BOOKS AND EQUIPMENT BE SEPARATELY ESTABLISHED AND THAT DOCUMENTARY EVIDENCE OF SUCH WEIGHT BE FURNISHED. NOTHING IN THE REGULATIONS SUGGESTS THAT THE OWNER'S RESPONSIBILITY WITH RESPECT TO PACKING THE BOOKS, ETC., SEPARATELY AND ESTABLISHING THEIR WEIGHT MAY BE SHIFTED TO THE TRANSPORTATION OFFICER. IN THE ABSENCE OF THE REQUIRED EVIDENCE THAT THE SHIPMENT CONTAINED SUCH BOOKS AND OF THEIR EXACT WEIGHT, THERE EXISTS NO AUTHORITY TO REDUCE THE EXCESS WEIGHT CHARGE ON THE BASIS THAT THE SHIPMENT CONTAINED SUCH ITEMS. SEE THE ENCLOSED COPY OF OUR DECISION B-143023, OCTOBER 20, 1960, INVOLVING A SIMILAR CASE.

YOU ALSO CLAIM THAT AFTER HAVING BEEN NOTIFIED OF THE EXCESS COST YOU REQUESTED, BUT DID NOT RECEIVE, AN INVESTIGATION TO ASCERTAIN THE CORRECT WEIGHT OF YOUR SHIPMENT. FURTHER, YOU ALLEGE THAT THE DRIVER OF THE VAN HAD ALSO RECEIVED AN AUTOMOBILE CHASSIS AND MOTOR WHICH WERE NOT YOURS, BUT WHICH WERE WEIGHED AS IF THEY BELONGED TO YOU. IN YOUR LETTER OF JULY 11, 1966, TO HONORABLE JAMES H. MORRISON, HOUSE OF REPRESENTATIVES, YOU SAID THAT IN YOUR INVESTIGATION YOU FOUND OUT THAT THE TRUCK WHICH PICKED UP YOUR FURNITURE DID NOT WEIGH IN AT FORT CARSON, THE PLACE FROM WHICH THE FURNITURE WAS SHIPPED, BUT HAD LAST WEIGHED AT SOME PLACE IN OREGON. ALSO, YOU SAID THAT THE DRIVER TOLD YOU HE HAD PICKED UP AN AUTOMOBILE CHASSIS AND MOTOR IN OREGON WHICH HE WAS BRINGING TO THE EAST COAST AND YOU INDICATE THAT THIS ACCOUNTED FOR THE EXCESS WEIGHT OF YOUR SHIPMENT.

CONTRARY TO THESE STATEMENTS, THE WEIGHT CERTIFICATE DATED JULY 16, 1958, ISSUED BY THE UNION ICE AND FUEL COMPANY, COLORADO SPRINGS, COLORADO, SHOWS THE GROSS AND TARE WEIGHTS AS STATED ABOVE, INDICATING THAT THEY WEIGHED THE VAN BOTH BEFORE AND AFTER LOADING YOUR HOUSEHOLD GOODS. THUS, IF A CHASSIS AND MOTOR WERE TRANSPORTED ON THE VAN AS YOU ALLEGE, THEY PRESUMABLY WERE ON THE VAN AT THE TIME THE GROSS WEIGHT WAS OBTAINED IN COLORADO SPRINGS AND THEREFORE THERE IS NOTHING TO INDICATE THAT THEIR WEIGHT WAS INCLUDED IN THE WEIGHT OF THE GOODS YOU SHIPPED.

YOU COMPLAIN THAT YOUR ALLEGATIONS WITH RESPECT TO THE EXCESS WEIGHT WOULD HAVE BECOME APPARENT IF AN INVESTIGATION HAD BEEN MADE UPON YOUR REQUEST IN 1958. YOU FURNISHED NO EVIDENCE, HOWEVER, TO SUPPORT YOUR ALLEGATIONS AND THE OFFICIAL RECORDS CLEARLY SHOW THAT YOUR GOODS EXCEEDED YOUR AUTHORIZED WEIGHT ALLOWANCE. THERE IS NO REQUIREMENT THAT A MEMBER BE NOTIFIED PRIOR TO DELIVERY OF HIS GOODS THAT THEY EXCEEDED HIS AUTHORIZED WEIGHT ALLOWANCE, AND THE FAILURE OR REFUSAL TO CONDUCT AN INVESTIGATION AS YOU REQUESTED AFFORDS NO BASIS TO REFUND THE AMOUNT COLLECTED FOR THE EXCESS WEIGHT OF THE GOODS SHIPPED.

ACCORDINGLY, THE RECORD PRESENTS NO LEGAL BASIS FOR DISTURBING THE SETTLEMENT OF JANUARY 5, 1959, WHICH IS SUSTAINED.