B-165945, FEB. 19, 1969

B-165945: Feb 19, 1969

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TAYLOR: BY REFERENCE FROM THE DEPARTMENT OF THE NAVY THERE WAS RECEIVED FOR OUR CONSIDERATION YOUR CLAIM FOR REFUND OF $112.64 REPRESENTING THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD GOODS FROM ALEXANDRIA. ALSO RECEIVED BY THEIR REFERENCE WAS A LETTER FROM HONORABLE JOEL T. YOU WERE TRANSFERRED FROM THE NAVAL AIR FACILITY. YOUR HOUSEHOLD GOODS WERE MOVED FROM ALEXANDRIA TO BROOKLYN ON GOVERNMENT BILL OF LADING C-7185781 DATED JUNE 25. THE CARRIER INVOLVED WAS THE J AND K MOVING AND STORAGE COMPANY. YOU CLAIM THAT SINCE THE WEIGHT CERTIFICATES SHOW DATES DIFFERENT THAN THE DATE YOUR HOUSEHOLD GOODS WERE PICKED UP. YOU HAVE BEEN INCORRECTLY CHARGED FOR EXCESS COSTS. PARAGRAPH M8002 ALSO PROVIDES THAT IF GOODS ARE SHIPPED BY MOTOR VAN IN AN UNCRATED CONDITION THE NET WEIGHT OF THE GOODS CHARGEABLE AGAINST THE MEMBER'S PRESCRIBED WEIGHT ALLOWANCE WILL BE DETERMINED BY SUBTRACTING 5 PERCENT FROM THE GROSS WEIGHT OF THE SHIPMENT.

B-165945, FEB. 19, 1969

TO MR. HOYLE A. TAYLOR:

BY REFERENCE FROM THE DEPARTMENT OF THE NAVY THERE WAS RECEIVED FOR OUR CONSIDERATION YOUR CLAIM FOR REFUND OF $112.64 REPRESENTING THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD GOODS FROM ALEXANDRIA, VIRGINIA, TO BROOKLYN, NEW YORK, CHARGED TO YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY. ALSO RECEIVED BY THEIR REFERENCE WAS A LETTER FROM HONORABLE JOEL T. BROYHILL TO THE DEPARTMENT OF THE NAVY REQUESTING A REPORT RELATIVE TO AN ATTACHED LETTER FROM YOU TO MR. BROYHILL CONCERNING YOUR CLAIM.

BY TRANSFER ORDER DATED JANUARY 12, 1966, YOU WERE TRANSFERRED FROM THE NAVAL AIR FACILITY, ANDREWS, WASHINGTON, D.C., TO THE NAVAL AIR STATION, NEW YORK, TO REPORT NOT LATER THAN FEBRUARY 21, 1966. YOUR HOUSEHOLD GOODS WERE MOVED FROM ALEXANDRIA TO BROOKLYN ON GOVERNMENT BILL OF LADING C-7185781 DATED JUNE 25, 1966. THE CARRIER INVOLVED WAS THE J AND K MOVING AND STORAGE COMPANY, INC. WEIGHT CERTIFICATES DATED JUNE 30, 1966, AND JULY 3, 1966, SHOW THAT YOUR HOUSEHOLD GOODS WEIGHED 8,500 POUNDS.

THE NAVY DEPARTMENT REPORTS THAT ON THE BASIS OF YOUR AUTHORIZED WEIGHT ALLOWANCE OF 6,500 POUNDS YOU INCURRED EXCESS COSTS OF $112.64 FOR THE SHIPMENT AND ACCESSORIAL SERVICES PERFORMED ON YOUR HOUSEHOLD GOODS. YOU CLAIM THAT SINCE THE WEIGHT CERTIFICATES SHOW DATES DIFFERENT THAN THE DATE YOUR HOUSEHOLD GOODS WERE PICKED UP, AND A WEIGHT CERTIFICATE DATED JULY 5, 1968, FOR THE RETURN SHIPMENT OF YOUR HOUSEHOLD GOODS TO ALEXANDRIA SHOWS 6,200 POUNDS, YOU HAVE BEEN INCORRECTLY CHARGED FOR EXCESS COSTS. YOU ALSO RAISE THE QUESTION OF THE J AND K MOVING AND STORAGE COMPANY, INC., TRANSPORTING HOUSEHOLD GOODS IN INTERSTATE COMMERCE WITHOUT AUTHORITY FROM THE INTERSTATE COMMERCE COMMISSION, AS INDICATED IN LETTER OF APRIL 23, 1968, FROM THE BUREAU OF OPERATIONS, INTERSTATE COMMERCE COMMISSION, TO YOU CONCERNING THAT COMPANY.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE, A MEMBER OF A UNIFORMED SERVICE SHALL BE ENTITLED TO TRANSPORTATION OF HOUSEHOLD GOODS IN CONNECTION WITH A CHANGE OF STATION.

PARAGRAPH M8002 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY PROVIDES THAT HOUSEHOLD GOODS OF MEMBERS, NOT IN EXCESS OF THE WEIGHT LIMIT IN POUNDS THEREIN PRESCRIBED, MAY BE TRANSPORTED AT GOVERNMENT EXPENSE IN ACCORDANCE WITH THE PROVISIONS OF THESE REGULATIONS. PARAGRAPH M8002 ALSO PROVIDES THAT IF GOODS ARE SHIPPED BY MOTOR VAN IN AN UNCRATED CONDITION THE NET WEIGHT OF THE GOODS CHARGEABLE AGAINST THE MEMBER'S PRESCRIBED WEIGHT ALLOWANCE WILL BE DETERMINED BY SUBTRACTING 5 PERCENT FROM THE GROSS WEIGHT OF THE SHIPMENT.

PARAGRAPH M8003 OF THE REGULATIONS PRESCRIBED DURING THE PERIOD INVOLVED A WEIGHT ALLOWANCE OF 6,500 POUNDS FOR AN E-7 ON A PERMANENT CHANGE OF STATION. THE REGULATIONS CONTEMPLATE THE SHIPMENT AT GOVERNMENT EXPENSE OF HOUSEHOLD GOODS PACKED FOR SHIPMENT AT NOT TO EXCEED AN OVERALL WEIGHT ALLOWANCE OF NET WEIGHT PLUS AN ALLOWANCE FOR PACKING. THE GOVERNMENT, HOWEVER, IS OBLIGATED TO PAY THE CARRIER FOR THE TOTAL WEIGHT SHIPPED, AND WEIGHT THEN IN EXCESS OF THE MAXIMUM OVERALL WEIGHT FIXED BY THE REGULATIONS PROPERLY IS CHARGEABLE TO THE MEMBER.

THE QUESTION WHETHER AND TO WHAT EXTENT AUTHORIZED WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD GOODS AND THE EXCESS COSTS INVOLVED ARE CONSIDERED TO BE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION SINCE OUR OFFICE HAS NO FIRST HAND INFORMATION CONCERNING THE MATTER AND WE NECESSARILY MUST RELY ON THE ADMINISTRATIVE DETERMINATION IN THE ABSENCE OF EVIDENCE CLEARLY SHOWING THAT IT IS IN ERROR. 3 COMP. GEN. 51; 16 COMP. GEN. 325; ID. 410 AT 414; 20 COMP. GEN. 573 AT 578.

YOUR CERTIFICATION ON THE BILL OF LADING INVOLVED SHOWS THAT YOUR HOUSEHOLD GOODS WERE DELIVERED AT DESTINATION ON JULY 2, 1966. YOU STATED THAT YOUR GOODS WERE NOT LOADED BY THE CARRIER UNTIL THE AFTERNOON OF JULY 1, 1966. IT IS YOUR CONTENTION, THEREFORE, THAT THE WEIGHT CERTIFICATES BEARING THE DATES JUNE 30 AND JULY 3 ARE FALSE AND SO OF NO EVIDENTIAL VALUE TO DETERMINE THE EXCESS WEIGHT INVOLVED IN YOUR SHIPMENT.

IN STATEMENT OF ACCESSORIAL SERVICES PERFORMED ON THE GOODS SHIPPED, PREPARED BY THE CARRIER, IT IS SHOWN THAT THE DATE OF SHIPMENT ACTUALLY WAS JUNE 30, 1966. THE WEIGHT CERTIFICATE DATED JUNE 30, 1966, SIGNED BY A CERTIFIED WEIGHER IN WASHINGTON, D.C., CONFIRMS THAT FACT, AND NOTHING IN THE RECORD APPEARS TO SUPPORT YOUR STATEMENT THAT THE CARRIER DID NOT LOAD THE GOODS UNTIL THE FOLLOWING DAY. THE SECOND WEIGHT CERTIFICATE FORM WAS SIGNED BY THE CERTIFIED WEIGHER IN WASHINGTON AND DATED JULY 3, 1966, BUT SHOWS ONLY THE FIGURE 8500. ITS PURPOSE, AND WHETHER IT PURPORTED TO RECORD A WEIGHING OF YOUR GOODS ON JULY 3 OR TO SERVE ONLY AS A RECORD OF THE PRIOR WEIGHING, IS NOT SHOWN.

THE FACT THAT THE WEIGHT CERTIFICATE DATED JULY 5, 1968, SHOWS YOUR HOUSEHOLD GOODS WEIGHED 6,200 POUNDS WHEN YOU RETURNED THEM TO ALEXANDRIA MAY NOT BE ACCEPTED AS PROOF THAT THE WEIGHT CERTIFICATE DATED JUNE 30, 1966, SHOWING 8,500 POUNDS IS INCORRECT. THE WEIGHTS OF PRIOR OR SUBSEQUENT SHIPMENTS ARE NOT ACCEPTABLE TO SHOW ANY ERROR IN THE IMMEDIATE SHIPMENT UNLESS THE INVENTORIES REVEAL THAT IDENTICAL ITEMS WERE SHIPPED AND THAT PACKING AND CRATING MATERIALS USED WERE SIMILAR.

WITH REGARD TO THE QUESTION OF THE J AND K MOVING AND STORAGE COMPANY, INC., OPERATING IN INTERSTATE COMMERCE WITHOUT AUTHORITY FROM THE INTERSTATE COMMERCE COMMISSION, IT HAS BEEN HELD IN SIMILAR CASES THAT WHILE THE CONTRACT IS UNENFORCEABLE THE CARRIER CAN RECOVER A QUANTUM MERUIT FOR ITS SERVICES BASED ON THE RATES OF OTHER AUTHORIZED CARRIERS FOR COMPARABLE SERVICES SINCE THE SHIPPER HAS RECEIVED THE BENEFIT OF THOSE SERVICES. ON THIS BASIS, THE CARRIER INVOLVED IS ENTITLED TO FREIGHT CHARGES FOR TRANSPORTING YOUR HOUSEHOLD GOODS AT THE RATE OF $4.35 PER 100 POUNDS AS ESTABLISHED BY OTHER CARRIERS ON A COMPETITIVE BASIS.

THE EXISTING RECORD APPEARS TO AFFORD NO PROPER BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT EXCESS COSTS CHARGEABLE TO YOU WERE INCURRED IN THE SHIPMENT OF YOUR HOUSEHOLD GOODS. ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. HOWEVER, SINCE THE EXCESS COSTS CHARGEABLE TO YOU WERE COMPUTED AT A RATE OF $4.90 PER 100 POUNDS, A SETTLEMENT WILL BE ISSUED BY OUR CLAIMS DIVISION IN YOUR FAVOR FOR THE DIFFERENCE BETWEEN THE AMOUNT CHARGED YOU AND THE EXCESS COSTS COMPUTED AT THE PROPER $4.35 RATE.