B-173014, OCT 1, 1971

B-173014: Oct 1, 1971

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CIVILIAN EMPLOYEE - SHIPMENT OF HOUSEHOLD GOODS - EXCESS WEIGHT AFFIRMING CLAIMS DIVISION DECISION THAT CLAIMANT IS RESPONSIBLE FOR EXCESS SHIPPING CHARGES FOR THE SHIPMENT OF HIS HOUSEHOLD GOODS FROM TOKYO. THE CORRECT WEIGHT LIMITATION WAS 10. BECAUSE THE GOVERNMENT ACTS ONLY THROUGH ITS AGENTS AND IS LIABLE ONLY TO THE EXTENT THAT SUCH AGENTS ACT WITHIN THE SCOPE OF THE STATUTES AND REGULATIONS. CLAIMANT IS RESPONSIBLE FOR COSTS ($920.95) RELATED TO EXCESS WEIGHT OVER THAT AUTHORIZED BY LAW. YOUR OFFICIAL STATION AS A FLIGHT ENGINEER (GS-12) WAS CHANGED FROM TOKYO (TACHIKAWA). THE ORDER STATED THAT THE ESTIMATED WEIGHT WAS 12. AN ADVANCE COPY OF THE GOVERNMENT BILL OF LADING FOR YOUR HOUSEHOLD GOODS SHIPMENT INDICATED THAT IT WAS NOT TO EXCEED 12.

B-173014, OCT 1, 1971

CIVILIAN EMPLOYEE - SHIPMENT OF HOUSEHOLD GOODS - EXCESS WEIGHT AFFIRMING CLAIMS DIVISION DECISION THAT CLAIMANT IS RESPONSIBLE FOR EXCESS SHIPPING CHARGES FOR THE SHIPMENT OF HIS HOUSEHOLD GOODS FROM TOKYO, JAPAN TO HONOLULU, HAWAII INCIDENT TO A CHANGE OF OFFICIAL STATION. ALTHOUGH CLAIMANT'S ORDERS INDICATED AUTHORIZATION FOR THE SHIPMENT OF 12,000 POUNDS, THE CORRECT WEIGHT LIMITATION WAS 10,000 POUNDS IN ACCORD WITH FOREIGN AFFAIRS MANUAL, VOL. 6, SECT. 162.2, DATED AUGUST 20, 1965. BECAUSE THE GOVERNMENT ACTS ONLY THROUGH ITS AGENTS AND IS LIABLE ONLY TO THE EXTENT THAT SUCH AGENTS ACT WITHIN THE SCOPE OF THE STATUTES AND REGULATIONS, CLAIMANT IS RESPONSIBLE FOR COSTS ($920.95) RELATED TO EXCESS WEIGHT OVER THAT AUTHORIZED BY LAW.

TO MR. ROBERT F. SEGER:

WE REFER FURTHER TO YOUR LETTER DATED FEBRUARY 2, 1971, IN WHICH YOU REQUEST REVIEW OF A CLAIM FOR $920.95 MADE AGAINST YOU FOR EXCESS SHIPPING CHARGES FOR THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM TOKYO, JAPAN, TO HONOLULU, HAWAII, INCIDENT TO YOUR CHANGE OF OFFICIAL STATION AS AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA).

BY FEDERAL AVIATION AGENCY TRAVEL ORDER 9-T-FS-22, DATED JULY 2, 1968, YOUR OFFICIAL STATION AS A FLIGHT ENGINEER (GS-12) WAS CHANGED FROM TOKYO (TACHIKAWA), JAPAN, TO HONOLULU, HAWAII. YOU RECEIVED AUTHORIZATION FOR SHIPMENT OF HOUSEHOLD EFFECTS IN ACCORDANCE WITH FOREIGN SERVICE REGULATIONS, AS AMENDED. THE ORDER STATED THAT THE ESTIMATED WEIGHT WAS 12,000 POUNDS.

THEREAFTER, ADMINISTRATIVE ASSOCIATES, INC., RECEIVED AUTHORITY FROM THE UNITED STATES EMBASSY IN TOKYO TO FURNISH SERVICES TO YOU, INCLUDING THE PACKING OF HOUSEHOLD EFFECTS NOT TO EXCEED 12,000 POUNDS NET WEIGHT. ADDITION, AN ADVANCE COPY OF THE GOVERNMENT BILL OF LADING FOR YOUR HOUSEHOLD GOODS SHIPMENT INDICATED THAT IT WAS NOT TO EXCEED 12,000 POUNDS. A TOTAL OF 12,774 POUNDS OF YOUR HOUSEHOLD GOODS WAS SHIPPED TO YOUR NEW DUTY STATION IN HAWAII.

SUBSEQUENTLY, YOU RECEIVED A BILL FOR $920.95 FROM THE FEDERAL AVIATION ADMINISTRATION FOR THE SHIPMENT OF 2,774 POUNDS OF EXCESS HOUSEHOLD EFFECTS. YOU WERE INFORMED THAT THE ALLOWABLE SHIPPING WEIGHT FOR GRADES GS-10 THROUGH GS-13 WAS 10,000 POUNDS IN ACCORD WITH FOREIGN AFFAIRS MANUAL, VOLUME 6, SECTION 162.2 DATED AUGUST 20, 1965. THE BILL STATED THAT THE GOVERNMENT BILL OF LADING HAD ERRONEOUSLY AUTHORIZED 12,000 POUNDS FOR SHIPMENT AT GOVERNMENT EXPENSE.

THIS MATTER WAS FORWARDED TO OUR CLAIMS DIVISION ON MAY 25, 1970, FOR A REQUESTED REVIEW OF THE INDEBTEDNESS. ON DECEMBER 3, 1970, THE FEDERAL AVIATION ADMINISTRATION WAS INFORMED THAT THE DETERMINATION OF YOUR INDEBTEDNESS TO THE UNITED STATES FOR COST OF THE EXCESS SHIPMENT WAS CORRECT.

IN YOUR LETTER OF FEBRUARY 2, 1971, YOU SAY THAT SHIPMENT OF EXCESS HOUSEHOLD EFFECTS RESULTED FROM A COMBINATION OF ADMINISTRATIVE ERRORS ON THE PART OF THE AMERICAN EMBASSY AND THE FEDERAL AVIATION ADMINISTRATION, WHICH WERE AGGRAVATED BY A WEIGHT ESTIMATE OF 10,100 POUNDS MADE BY ADMINISTRATIVE ASSOCIATES, INC. YOU SAY FURTHER THAT HAD YOU KNOWN THAT YOUR WEIGHT LIMITATION WAS 10,000 POUNDS AND NOT 12,000 POUNDS, YOU WOULD HAVE SOLD MANY HEAVY ITEMS TO ENABLE YOU TO STAY WITHIN YOUR WEIGHT LIMIT. YOU EXPRESS THE OPINION THAT SINCE THE GOVERNMENT AUTHORIZED A 12,000 POUND SHIPMENT OF HOUSEHOLD GOODS, INSTEAD OF A 10,000 POUND SHIPMENT, IT SHOULD BEAR THE COST OF SHIPPING AN ADDITIONAL 2,000 POUNDS OF GOODS, AND THAT YOU SHOULD BE RESPONSIBLE ONLY FOR THE 774 POUNDS IN EXCESS OF THE 12,000 POUND LIMITATION.

MOVEMENT OF YOUR HOUSEHOLD EFFECTS WAS BY AUTHORITY OF REGULATIONS CONTAINED IN VOLUME 6 OF THE FOREIGN AFFAIRS MANUAL ISSUED BY THE DEPARTMENT OF STATE. SECTION 162.2 THEREOF, ISSUED IN ACCORD WITH THE STATUTORY AUTHORITY CONTAINED IN 22 U.S.C. 1136, PROVIDES A MAXIMUM WEIGHT ALLOWANCE OF 10,000 POUNDS FOR FAMILY TRAVEL OF FOREIGN SERVICE OFFICERS GRADES 4 THROUGH 6 AND FOR FOREIGN SERVICE STAFF, GRADES 2 THROUGH 5. ARE INFORMED BY THE FAA THAT THIS WEIGHT LIMITATION IS APPLICABLE TO GS GRADE 12 AND THEREFORE APPLICABLE TO YOU. SECTION 163A OF THE MANUAL PROVIDES THAT EACH EMPLOYEE IS RESPONSIBLE FOR ANY TRANSPORTATION, DEMURRAGE, STORAGE, CUSTOMS CARTAGE, OR OTHER COSTS INCURRED BY HIM OR HIS AGENT WHICH ARE NOT AUTHORIZED BY LAWS AND REGULATIONS GOVERNING THE SHIPMENT OF HIS EFFECTS AT GOVERNMENT EXPENSE. THESE ARE STATUTORY REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, AND MAY NO MORE BE WAIVED THAN PROVISIONS OF THE STATUTES THEMSELVES. 37 COMP. GEN. 820 (1958).

THE AUTHORIZATION OF THE SHIPMENT OF 12,000 POUNDS OF YOUR HOUSEHOLD GOODS WAS ERRONEOUS AS THERE IS NO AUTHORITY TO CHARGE THE GOVERNMENT FOR THAT PART OF A SHIPMENT IN EXCESS OF THE APPLICABLE 10,000 POUND LIMITATION. IN THE ABSENCE OF SUCH AUTHORITY, THE AUTHORIZATION IN QUESTION MADE BY OFFICERS OR EMPLOYEES OF THE UNITED STATES PROVIDED NO LEGAL BASIS FOR SHIPMENT OF THE EXCESS HOUSEHOLD GOODS AT GOVERNMENT EXPENSE SINCE IT IS WELL ESTABLISHED THAT THE GOVERNMENT, WHICH MAY ACT ONLY THROUGH AGENTS, IS LIABLE ONLY TO THE EXTENT THAT ITS AGENTS ACT WITHIN THE SCOPE OF STATUTES AND REGULATIONS ISSUED PURSUANT TO STATUTES. SEE B-156327, MARCH 24, 1965, COPY ENCLOSED. THEREFORE, AND AS SPECIFICALLY PROVIDED IN SECTION 163A OF THE FOREIGN AFFAIRS MANUAL, YOU ARE RESPONSIBLE FOR COSTS RELATED TO EXCESS WEIGHT OVER THAT AUTHORIZED BY LAWS AND REGULATIONS APPLICABLE TO YOUR SHIPMENT.

IN YOUR LETTER YOU REFER TO THE APPLICATION OF THE PROVISIONS OF PUBLIC LAW 90-616, 5 U.S.C. 5584, TO WAIVER OF THE AMOUNT DUE TO THE GOVERNMENT. THIS PROVISION IS APPLICABLE ONLY TO CLAIMS OF THE UNITED STATES ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY AND THEREFORE HAS NO APPLICATION TO THE CLAIM FOR EXCESS SHIPPING CHARGES MADE AGAINST YOU.

YOU REFER ALSO TO WAIVER PROVISIONS CONTAINED IN THE FOREIGN AFFAIRS MANUAL. PARAGRAPH 121.1-4 OF THE MANUAL INDICATES THAT A SPECIAL COMMITTEE OF THE DEPARTMENT OF STATE MAY RECOMMEND APPROPRIATE ACTION UPON REQUESTS FOR RELIEF SUBMITTED TO THE DEPARTMENT BY EMPLOYEES, WHERE DESPITE ALL REASONABLE PRECAUTIONS BY THEM, AND WHERE IT HAS BEEN CONCLUSIVELY DEMONSTRATED THAT SUCH EXCESSES HAVE OCCURRED THROUGH NO FAULT OF THE EMPLOYEE, ALLOWANCES WERE EXCEEDED OR EXCESS COSTS WERE INCURRED INCIDENT TO TRAVEL OR THE TRANSPORTATION OR STORAGE OF EFFECTS. HOWEVER, UNDER PARAGRAPH "A" THEREOF, EXCESS SHIPMENTS WHICH EXCEED THE COMBINED SHIPMENT AND STORAGE ALLOWANCE UNDER 6 FAM 162.2, IN YOUR CASE 10,000 POUNDS, MAY NOT BE CONSIDERED BY THE COMMITTEE.

SINCE THERE IS NO AUTHORITY TO GRANT YOU A HOUSEHOLD GOODS SHIPPING ALLOWANCE IN EXCESS OF THE 10,000 POUND LIMITATION OF SECTION 162.2 OF THE MANUAL, WHICH HAS THE FORCE AND EFFECT OF LAW, THE CONCLUSION THAT YOU ARE INDEBTED TO THE GOVERNMENT FOR THE $920.95 EXCESS COST OF SHIPMENT OF YOUR HOUSEHOLD GOODS FROM JAPAN TO HAWAII IS HEREBY SUSTAINED.