B-170146, MAY 3, 1972

B-170146: May 3, 1972

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IT SHOULD BE OBVIOUS THAT SETOFF OF THE ERRONEOUS PAYMENT WAS PROPER. THE DOCTRINE OF UNJUST ENRICHMENT IS ONLY APPLICABLE TO CONTRACTS IMPLIED IN LAW. ACTIONS AGAINST THE UNITED STATES ARE LIMITED TO THOSE BASED ON EXPRESS CONTRACTS IMPLIED IN FACT. COARD RECEIVED A BENEFIT FOR WHICH THE GOVERNMENT MAY HAVE BEEN LIABLE. WOULD BE WILLING TO ALLOW PAYMENT IN AN AMOUNT EQUAL TO THE MAXIMUM ALLOWANCE THAT THE SERVICEMAN COULD HAVE OBTAINED ON A MILEAGE BASIS BETWEEN THE AUTHORIZED POINTS OF ORIGIN AND DESTINATION. INC.: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21. F-0505185 WAS ISSUED BY THE TRAFFIC MANAGEMENT OFFICE. THE TRANSPORTATION WAS TERMINATED AT LARAMIE. F-0505185 WAS ACCOMPLISHED BY A GOVERNMENT REPRESENTATIVE ON JANUARY 20.

B-170146, MAY 3, 1972

TRANSPORTATION - UNAUTHORIZED TRANSPORTATION OF HOUSE TRAILER - REIMBURSEMENT - UNJUST ENRICHMENT CONCERNING A CLAIM OF NATIONAL TRAILER CONVOY, INC., FOR REIMBURSEMENT OF COSTS INCURRED IN THE TRANSPORTATION OF STAFF SERGEANT RANSOM COARD'S HOUSE TRAILER FROM LARAMIE, WYO., TO TACOMA, WASH. IN THE ABSENCE OF A CONTRACT BETWEEN THE GOVERNMENT AND NATIONAL, IT SHOULD BE OBVIOUS THAT SETOFF OF THE ERRONEOUS PAYMENT WAS PROPER. FURTHER, THE DOCTRINE OF UNJUST ENRICHMENT IS ONLY APPLICABLE TO CONTRACTS IMPLIED IN LAW. UNDER THE TUCKER ACT, 28 U.S.C. 1346(A)(2), ACTIONS AGAINST THE UNITED STATES ARE LIMITED TO THOSE BASED ON EXPRESS CONTRACTS IMPLIED IN FACT. ALLIANCE ASSURANCE COMPANY V. UNITED STATES, 252 F.2D 529 (1958). GAO HAS ALWAYS MAINTAINED THAT A MERE VOLUNTEER HAS NO RIGHT TO DEMAND REIMBURSEMENT FROM ANYONE. 42 COMP. GEN. 149, 152 (1962). HOWEVER, SINCE IT DOES APPEAR THAT SGT. COARD RECEIVED A BENEFIT FOR WHICH THE GOVERNMENT MAY HAVE BEEN LIABLE, THE COMP. GEN. WOULD BE WILLING TO ALLOW PAYMENT IN AN AMOUNT EQUAL TO THE MAXIMUM ALLOWANCE THAT THE SERVICEMAN COULD HAVE OBTAINED ON A MILEAGE BASIS BETWEEN THE AUTHORIZED POINTS OF ORIGIN AND DESTINATION, LESS THE AMOUNT ALREADY PAID TO NATIONAL FOR TRANSPORTING THE MOBILE HOME TO LARAMIE.

TO NATIONAL TRAILER CONVOY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1971, WITH ENCLOSURES, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN COLLECTING BY SETOFF THE $910.40 PAID TO YOU ON YOUR SUPPLEMENTAL BILL NO. A-198371 SUMTER, S.C. THE BILL REPRESENTED ADDITIONAL CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF A HOUSE TRAILER (MOBILE HOME) UNDER GOVERNMENT BILL OF LADING NO. F-0505185 ISSUED JANUARY 10, 1969.

GOVERNMENT BILL OF LADING NO. F-0505185 WAS ISSUED BY THE TRAFFIC MANAGEMENT OFFICE, SHAW AIR FORCE BASE, SOUTH CAROLINA, TO COVER THE TRANSPORTATION BY NATIONAL TRAILER CONVOY, INC. (NATIONAL) OF A HOUSE TRAILER FOR STAFF SERGEANT RANSOM COARD FROM PINE WOOD, SOUTH CAROLINA, TO FORT LEWIS, WASHINGTON. WHILE EN ROUTE THE MOBILE HOME DEVELOPED SERIOUS STRUCTURAL DEFECTS, THE TRANSPORTATION WAS TERMINATED AT LARAMIE, WYOMING, AND THE MOBILE HOME PLACED IN A BODY SHOP IN EITHER THAT CITY OR CHEYENNE, WYOMING. BY GOVERNMENT BILL OF LADING CORRECTION NOTICE, FORM DD 1352, DATED APRIL 14, 1969, SHAW AIR FORCE BASE CORRECTED THE BILL OF LADING TO SHOW THE DESTINATION AS LARAMIE, WYOMING. BILL OF LADING NO. F-0505185 WAS ACCOMPLISHED BY A GOVERNMENT REPRESENTATIVE ON JANUARY 20, 1969, AND THE CONSIGNEE'S CERTIFICATE OF DELIVERY SHOWS LARAMIE, WYOMING, AS THE ACTUAL POINT OF DELIVERY. THE PRESENT RECORD DOES NOT SHOW THE DISPOSITION, IF ANY, OF THE DAMAGED MOBILE HOME.

THE MANUFACTURER, AMERICAN COACH COMPANY, REPLACED THE DAMAGED MOBILE HOME WITH A NEW ONE WHICH WAS TRANSPORTED UNDER A COMMERCIAL BILL OF LADING FROM MILLEDGEVILLE, GEORGIA, TO FORT LEWIS (TACOMA), WASHINGTON, BY ANOTHER CARRIER, MORGAN DRIVE-AWAY, INC.

A SUPPLEMENTAL BILL NO. "A-198371 SUMTER S.C.," FOR $910.40 WAS PAID TO NATIONAL BY THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, ON MARCH 24, 1970, VOUCHER NO. 686027. THIS SUPPLEMENTAL BILL WAS PRESENTED BY YOUR COMPANY TO RECOVER THE TRANSPORTATION COSTS FROM LARAMIE TO TACOMA. WAS NOT SUPPORTED BY A GOVERNMENT BILL OF LADING OR OTHER EVIDENCE THAT THE GOVERNMENT REQUESTED THE SERVICE ALTHOUGH IT PURPORTEDLY WAS FOR SERVICES CONTRACTED UNDER BILL OF LADING NO. F 0505185. MOREOVER, THE BILL IS SUPPORTED IN PART BY AN INVOICE FROM AMERICAN COACH WHICH SHOWS THAT ON MARCH 4, 1969, NATIONAL WAS BILLED FOR $1,618.75, THE COST OF TRANSPORTING THE REPLACEMENT MOBILE HOME FROM GEORGIA TO TACOMA, WASHINGTON. AND IN A LETTER SUPPORTING THE BILL YOU STATE THAT YOU WERE "FORCED TO PAY THE FREIGHT CHARGES FOR THE REPLACEMENT UNIT."

THE ONLY CONTRACT OF CARRIAGE WHICH THE UNITED STATES HAS WITH YOUR COMPANY IS THE ONE REPRESENTED BY GOVERNMENT BILL OF LADING NO. F 0505185. THAT CONTRACT OF CARRIAGE WAS FULLY PERFORMED BY YOUR COMPANY BY DELIVERY OF THE MOBILE HOME TO THE CORRECTED DESTINATION, LARAMIE, WYOMING, AND THE GOVERNMENT'S LIABILITY IS ONLY FOR PAYMENT OF THE FREIGHT CHARGES INCURRED IN CONNECTION WITH THE SERVICES RENDERED UNDER THAT BILL OF LADING AND THOSE FREIGHT CHARGES HAVE BEEN PAID.

SINCE THERE IS NO CONTRACT BETWEEN THE GOVERNMENT AND NATIONAL OR BETWEEN THE GOVERNMENT AND ANYONE ELSE FOR THE TRANSPORTATION OF THE REPLACEMENT MOBILE HOME FROM LARAMIE TO TACOMA, NO PAYMENT SHOULD HAVE BEEN MADE FOR THAT TRANSPORTATION AND THE ERRONEOUS PAYMENT OF $910.40 MADE ON SUPPLEMENTAL BILL NO. A-198371 WAS RECOVERED BY SETOFF ON DECEMBER 23, 1970, AGAINST YOUR BILL 356359. WISCONSIN CENTRAL RAILROAD CO. V UNITED STATES, 164 U.S. 190 (1896); GRAND TRUNK WESTERN RAILWAY COMPANY V UNITED STATES, 252 U.S. 112 (1920).

WE WILL CONSIDER THE REQUEST IN YOUR DECEMBER 21 LETTER THAT THE SETOFF ACTION BE RECONSIDERED AS A CLAIM FOR $910.40. AS THE LEGAL BASIS FOR YOUR CLAIM YOU CONTEND THAT THE GOVERNMENT OR SERGEANT COARD WAS UNJUSTLY ENRICHED SINCE THE GOVERNMENT ONLY PAID FREIGHT CHARGES TO LARAMIE WHEREAS A MOBILE HOME WAS ACTUALLY DELIVERED TO THE MEMBER AT FORT LEWIS (TACOMA), WASHINGTON. TECHNICALLY, YOU SAY, THE ORIGINAL INTENT OF BILL OF LADING NO. F-0505185 WAS ACCOMPLISHED BECAUSE A MOBILE HOME WAS DELIVERED AT FORT LEWIS; AND YOUR CORPORATION IS WILLING TO ACCEPT FOR THE PART OF THE MOVE FROM LARAMIE TO FORT LEWIS CHARGES BASED ON $0.74 PER MILE OR $910.40 WHICH THE GOVERNMENT WOULD HAVE BEEN OTHERWISE OBLIGATED TO REIMBURSE THE MEMBER.

WE NOTE FIRST THAT OUR RECORDS DO NOT SHOW THE EXTENT OF SERGEANT COARD'S SETTLEMENT, IF ANY, WITH THE MANUFACTURER OF THE MOBILE HOME.

THE DOCTRINE OF UNJUST ENRICHMENT IS DERIVED FROM A CONTRACT IMPLIED BY LAW (HILL V WAXBERG, 237 F.2D 936 (1965)) AS DISTINGUISHED FROM A CONTRACT IMPLIED IN FACT. AND UNDER THE TUCKER ACT, 28 U.S.C. 1346(A)(2), ACTIONS AGAINST THE UNITED STATES ON IMPLIED CONTRACTS ARE LIMITED TO ACTIONS BASED ON CONTRACTS IMPLIED IN FACT, NOT ON THOSE IMPLIED BY LAW. ALLIANCE ASSURANCE COMPANY V UNITED STATES, 252 F.2D 529 (1958); G. T. FOGLE & CO. V UNITED STATES, 135 F.2D 117, 120 (1943); J. C. PITTMAN & SONS, INC. V. UNITED STATES, 317 F.2D 366 (1963); CF. UNITED STATES V EDMONDSTON, 181 U.S. 500, 515 (1901); SEE, ALSO, SUTTON V UNITED STATES, 256 U.S. 575, 580 -581 (1921).

FURTHERMORE, WE ALWAYS HAVE RECOGNIZED THE RULE THAT PAYMENT OF AN OBLIGATION BY A MERE VOLUNTEER, WHO IS UNDER NO LEGAL OBLIGATION TO MAKE THE PAYMENT AND WHO IS NOT REQUIRED TO DO SO FOR THE PRESERVATION OF ANY RIGHTS OR PROPERTY OF HIS OWN, DOES NOT PLACE THAT VOLUNTEER IN A POSITION TO DEMAND REIMBURSEMENT FROM ANYONE. 18 COMP. GEN. 424, 425 (1938); CF. 42 COMP. GEN. 149, 152 (1962).

NOTHING IN THE PRESENT RECORD SUPPORTS THE CONCLUSION THAT THERE EXISTED A CONTRACT IMPLIED IN FACT BETWEEN YOU AND THE UNITED STATES; INDEED, THE INFERENCE IS THAT YOU WERE A "MERE VOLUNTEER" IN REIMBURSING THE MANUFACTURER $1,618.75, THE COST OF TRANSPORTING THE REPLACEMENT MOBILE HOME FROM GEORGIA TO TACOMA, WASHINGTON.

FOR THESE REASONS THE SETOFF ACTION OF OUR TRANSPORTATION DIVISION WAS PROPER AND IS SUSTAINED AND YOUR CLAIM FOR $910.40 MUST BE AND IS DISALLOWED.

HOWEVER, WE RECOGNIZE THAT THE REPLACEMENT MOBILE HOME WAS TRANSPORTED FROM MILLEDGEVILLE, GEORGIA, TO TACOMA, WASHINGTON, VIA LARAMIE, WYOMING, AND THAT HAD SERGEANT COARD REQUESTED AND PAID FOR TRANSPORTATION FROM LARAMIE, THE POINT OF BREAKDOWN, TO TACOMA, THE DESTINATION OF THE ORIGINAL SHIPMENT, THE MEMBER MOST LIKELY WOULD HAVE BEEN ENTITLED TO AN ALLOWANCE FOR THAT TRANSPORTATION FROM THE GOVERNMENT UNDER PERTINENT PROVISIONS OF THE JOINT TRAVEL REGULATIONS. IN A SENSE THEN AND UNDER THE FACTS NOW OF RECORD, THE SERVICEMAN RECEIVED A BENEFIT FROM SOMEONE, FOR WHICH UNDER THE JOINT TRAVEL REGULATIONS THE GOVERNMENT MAY BE LIABLE. HOWEVER, THE MAXIMUM ALLOWANCE THAT THE SERVICEMAN COULD OBTAIN WOULD BE FOR THE MILEAGE BETWEEN THE AUTHORIZED POINTS OF ORIGIN AND DESTINATION, PINE WOOD, SOUTH CAROLINA, TO FORT LEWIS, WASHINGTON, 2,889 MILES AT $0.74 PER MILE OR $2,137.86, LESS THE AMOUNT PAID TO YOUR CORPORATION FOR CARRYING THE MOBILE HOME TO LARAMIE, $1,421.20, OR $716.66.

FOR THESE REASONS THEREFORE, WE WOULD BE WILLING TO CONSIDER ALLOWANCE OF $716.66 OF THE AMOUNT OF YOUR CLAIM, $910.40, PROVIDED IT IS SUPPORTED BY (1) A RECEIPT OR OTHER EVIDENCE FROM NATIONAL ESTABLISHING THAT NATIONAL REIMBURSED AMERICAN COACH FOR THE TRANSPORTATION CHARGES PAID TO MORGAN DRIVE-AWAY BY AMERICAN COACH; (2) WAIVERS FROM THE FOLLOWING INDICATING EACH HAS NO INTEREST IN NATIONAL'S CLAIM NOR OBJECTION TO THE GOVERNMENT'S PAYMENT OF THE AMOUNT OF $716.66 TO NATIONAL: (A) RANSOM COARD, THE SERVICEMAN; (B) AMERICAN COACH COMPANY, A DIVISION OF DETROITER MOBILE HOMES, INC., THE MANUFACTURER; AND (C) GENERAL INSURANCE ADJUSTMENT COMPANY, NATIONAL'S INSURER.