B-165995, APR. 1, 1969

B-165995: Apr 1, 1969

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YOU WERE AUTHORIZED TO TRAVEL FROM RIO DE JANEIRO. YOU WERE AUTHORIZED TO SHIP NOT TO EXCEED 2. YOU WERE ALSO AUTHORIZED TO SHIP 300 POUNDS GROSS WEIGHT OF UNACCOMPANIED BAGGAGE OF WHICH 100 POUNDS MAY BE BY AIR FOR PORTION OF TRAVEL PERFORMED BY AIR FOR EACH TRAVELER. YOU SAY THAT YOU WERE CONCERNED WITH THE WEIGHT OF YOUR HOUSEHOLD EFFECTS AND REQUESTED THAT YOU BE NOTIFIED IF THE WEIGHT WAS IN EXCESS OF THE AUTHORIZED AMOUNT IN ORDER THAT YOU MAY DISPOSE OF SOME ITEMS. YOU WERE NOT NOTIFIED OF THE WEIGHT BEFORE SHIPMENT AND AS A RESULT ALL OF YOUR HOUSEHOLD GOODS WERE SHIPPED. THERE IS ON FILE A COPY OF A LETTER DATED JANUARY 26. A COPY OF WHICH WAS SENT YOU. THIS LETTER IS IN SPANISH BUT THE TRANSLATION READS AS FOLLOWS: "WE WERE YESTERDAY.

B-165995, APR. 1, 1969

TO MR. PETER A. HORNBOSTEL:

THIS REFERS TO YOUR LETTER OF JANUARY 17, 1969, WITH ENCLOSURES, CONCERNING THE WITHHOLDING OF $384.82 FROM YOUR CIVIL SERVICE RETIREMENT FUND TO SATISFY YOUR INDEBTEDNESS BECAUSE OF THE EXCESS SHIPMENT OF HOUSEHOLD EFFECTS FROM RIO DE JANEIRO, BRAZIL, TO WASHINGTON, D.C., AS AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID).

BY TRAVEL AUTHORIZATION DATED JANUARY 12, 1968, YOU WERE AUTHORIZED TO TRAVEL FROM RIO DE JANEIRO, BRAZIL, TO WASHINGTON, D.C., FOR 5 DAYS CONSULTATION AND HOME LEAVE PENDING TRANSFER. YOU WERE AUTHORIZED TO SHIP NOT TO EXCEED 2,500 POUNDS NET WEIGHT OF HOUSEHOLD GOODS. YOU WERE ALSO AUTHORIZED TO SHIP 300 POUNDS GROSS WEIGHT OF UNACCOMPANIED BAGGAGE OF WHICH 100 POUNDS MAY BE BY AIR FOR PORTION OF TRAVEL PERFORMED BY AIR FOR EACH TRAVELER.

YOU SAY THAT YOU WERE CONCERNED WITH THE WEIGHT OF YOUR HOUSEHOLD EFFECTS AND REQUESTED THAT YOU BE NOTIFIED IF THE WEIGHT WAS IN EXCESS OF THE AUTHORIZED AMOUNT IN ORDER THAT YOU MAY DISPOSE OF SOME ITEMS. YOU WERE NOT NOTIFIED OF THE WEIGHT BEFORE SHIPMENT AND AS A RESULT ALL OF YOUR HOUSEHOLD GOODS WERE SHIPPED.

THERE IS ON FILE A COPY OF A LETTER DATED JANUARY 26, 1968, FROM MR. FLAVIO SANTOS DE SOUZA OF THE FINK TRANSPORTES, A COPY OF WHICH WAS SENT YOU. THIS LETTER IS IN SPANISH BUT THE TRANSLATION READS AS FOLLOWS: "WE WERE YESTERDAY, 1/25/68 IN MR. HORNBOSTEL'S RESIDENCE WERE (WHERE) (SIC) WE WERE SHOWN THE THINGS TO BE SENT TO WASHINGTON. AT THE OCCASION WE NOTICED: 1) THERE WON-T BE ANY SHIPMENT OF UNACC. BAGGAGE. 2) EVERYTHING WILL BE SENT AS HOUSEHOLD EFFECTS. 3) WE ESTIMATE THE WEIGHT TO BE OVER 2500 LBS. BY THE THINGS SHOWN TO US. WE WAIT INSTRUCTIONS.'

BY MEMORANDUM FROM YOU DATED JANUARY 30, 1968, TO MR. MANUEL SANCHEZ CONCERNING YOUR TRANSFER OF STATION AND SHIPMENT OF YOUR HOUSEHOLD EFFECTS THERE IS A NOTE ON THE BOTTOM OF THE PAGE IN LONG HAND BEARING YOUR SIGNATURE DATED FEBRUARY 2, 1968, AND READING AS FOLLOWS:

"I HEREBY AGREE TO PAY EXCESS WEIGHT CHARGES (IF ANY) IF THE WEIGHT OF THE SHIPMENT EXCEEDS 3,100 POUNDS (2,500 LBS. THE NET PLUS 500 LBS. UNACCOMPANIED BAGGAGE ALLOWANCE PLUS 100 LBS. AIR FREIGHT ALLOWANCE)"

AS A MATTER OF LAW THE MOVEMENT OF AN EMPLOYEE'S HOUSEHOLD GOODS AND EFFECTS IS NOT A GOVERNMENTAL FUNCTION AND WHEN THE GOVERNMENT, THROUGH ITS REPRESENTATIVES, ENTERS INTO SUCH TRANSACTIONS ON BEHALF OF AN EMPLOYEE IT DOES SO ONLY AS AN AGENT OF THE EMPLOYEE. WE BELIEVE YOU WILL AGREE THAT ONLY THE EMPLOYEE CAN DETERMINE WHAT ARTICLES OF HOUSEHOLD GOODS AND EFFECTS HE DESIRES TO BE TRANSPORTED. THAT RESPONSIBILITY CANNOT BE TRANSFERRED TO THE CARRIER OR TO THE GOVERNMENT. GENERALLY, UNDER COMMON LAW, CARRIERS MUST ACCEPT AND DELIVER THE HOUSEHOLD GOODS AND EFFECTS DESIGNATED BY THE EMPLOYEE WITHOUT REGARD TO THEIR WEIGHT OR VOLUME. WHEN SUCH GOODS ARE SHIPPED ON A GOVERNMENT BILL OF LADING, THE CONTRACT GENERALLY REQUIRES THE GOVERNMENT TO PAY THE FULL AMOUNT OF THE LEGAL CHARGES INCLUDING THE COSTS OF EXCESS WEIGHT OR CUBIC MEASUREMENT IF THERE BE ANY.

THE LIABILITY OF AN EMPLOYEE OF AID FOR EXCESS COSTS OF TRANSPORTATION RESTS UPON 22 U.S.C. 2381, 2385 (D) (1) (2) AND SECTION 163 OF AID MANUAL ORDER NO. 560.2 PROMULGATED PURSUANT THERETO WHICH PROVIDES IN PART AS FOLLOWS: "A. EACH EMPLOYEE IS RESPONSIBLE FOR ANY TRANSPORTATION * * * COSTS INCURRED BY HIM OR HIS AGENTS WHICH ARE NOT AUTHORIZED BY LAWS AND REGULATIONS GOVERNING THE SHIPMENT OF HIS EFFECTS AT GOVERNMENT EXPENSE * * *. "B. WHEN AN EMPLOYEE EXCEEDS HIS AUTHORIZED SHIPPING ALLOWANCE, THE CHARGES TO BE BORNE BY THE EMPLOYEE WILL BE COMPUTED ON THE BASIS OF THE RATIO OF THE EXCESS NET WEIGHT TO THE TOTAL NET WEIGHT.'

THE WEIGHT LIMITATION SPECIFIED IN YOUR TRAVEL ORDER WAS IN CONFORMANCE WITH THE MAXIMUM WEIGHT ALLOWANCE PRESCRIBED IN SECTION 162.2-1 OF AID MANUAL ORDER NO. 560.2. SECTION 162.3 PROVIDES THAT: "THE ALLOWANCES IN SECTIONS 162.2 AND 162.2-1 ARE INCREASED AUTOMATICALLY BY TWO-THIRDS OF THE AMOUNT OF ANY UNUSED WEIGHT AUTHORIZATION FOR UNACCOMPANIED BAGGAGE.'

SECTION 147.2 AUTHORIZES A TRAVELER TO SHIP A MAXIMUM OF 300 POUNDS GROSS WEIGHT OF UNACCOMPANIED BAGGAGE OF WHICH 100 POUNDS GROSS WEIGHT MAY BE SHIPPED AIR FREIGHT UNDER CERTAIN CIRCUMSTANCES. IN COMPUTING THE EXCESS COST OF THE SHIPMENT, YOU WERE ALLOWED 2,500 POUNDS NET PLUS TWO-THIRDS OF (600 POUNDS FOR TWO PERSONS) UNACCOMPANIED BAGGAGE OF 400 POUNDS NET ALLOWING YOU A NET OF 2,900 POUNDS TO BE SHIPPED. YOU ACTUALLY SHIPPED 3,783 POUNDS NET OR 883 POUNDS NET IN EXCESS OF THAT AUTHORIZED. THE TOTAL COST OF THE SHIPMENT WAS $1,646.97. USING THE FORMULA PROVIDED FOR IN SECTION 163.2B ABOVE (2900 X $1,646.97 PLUS 3783 EQUALS $1,262.55 GOVERNMENT'S SHARE) YOU WERE CHARGED WITH $384.42 BECAUSE OF THE EXCESS WEIGHT OF 883 POUNDS NET.

CONCERNING THE DEDUCTION FROM YOUR CIVIL SERVICE RETIREMENT FUND, IT IS WELL SETTLED THAT THE FINAL SALARY, RETIREMENT DEDUCTIONS AND OTHER FUNDS DUE EMPLOYEES FROM THE GOVERNMENT MAY BE SET OFF BY THE GOVERNMENT AGAINST DEBTS DUE THE GOVERNMENT. 16 COMP. GEN. 161, ID. 1017; 27 ID. 703; 39 ID. 203; UNITED STATES V MUNSEY TRUST, 332 U.S. 234, 239.

IN VIEW OF THE FOREGOING, IT WOULD APPEAR THAT THE ACTION TAKEN IN YOUR CASE BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT WAS CORRECT.