B-176837, SEP 14, 1972

B-176837, SEP 14, 1972

TRANSPORTATION CHARGES - DISCLAIM OF LIABILITY FOR OVERPAYMENT DECISION AFFIRMING DISALLOWANCE OF THE CLAIM OF INTERSTATE VAN LINES, INC., FOR ADDITIONAL TRANSPORTATION CHARGES. ATTEMPTED MODIFICATION OF AN S.I.T. WAIVER CERTIFICATE, REQUIRED BY 5 GAO 3075.20, BY DISCLAIMING LIABILITY FOR OVERPAYMENT, IS UNILATERAL, SELF- SERVING, AND LACKS CONSIDERATION. THEREFORE, IT HAS NO FORCE AND THE GOVERNMENT IS NOT PRECLUDED FROM COLLECTING DESTINATION OVERCHARGES.

TO INTERSTATE VAN LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1972, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF MAY 2, 1972, WHICH DISALLOWED YOUR CLAIM 798 -70-BS (OUR CLAIM TK 941886) FOR $7.83 ADDITIONAL TRANSPORTATION CHARGES ON A SHIPMENT OF HOUSEHOLD GOODS.

THE RECORD SHOWS THAT GOVERNMENT BILL OF LADING E-6355524 WAS ISSUED TO COVER THE TRANSPORTATION OF ONE LOT OF HOUSEHOLD GOODS WEIGHING 5,640 POUNDS FROM WASHINGTON, D.C., TO FORT WALTON BEACH, FLORIDA. THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS TENDERED TO "INTERSTATE VAN LINES, INC. (AEM MOVING & STORAGE CO., INC.)" ON NOVEMBER 4, 1968, AND THAT IT WAS DELIVERED AT FORT WALTON BEACH, FLORIDA, BY INTERSTATE VAN LINES ON NOVEMBER 7, 1968, TO THE COLONIAL MOVING COMPANY. THE BILL OF LADING BLOCK CAPTIONED "MARKS" BEARS THE NOTATIONS:

"39 DAYS SIT UTILIZED AT ORIGIN SIT NOT TO EXCEED 51 DAYS AUTH AT DESTN. CARR WILL NOTIFY T.O. AT EGLIN AFB, FLORIDA UPON ARR OF SHIPMENT PRIOR TO DEL TO RES OR PLACING IN STORAGE."

THIS HOUSEHOLD GOODS TRANSPORTATION CONTRACT INCLUDED A REQUIREMENT FOR NOTIFICATION OF THE TRANSPORTATION OFFICER AT EGLIN AIR FORCE BASE, FLORIDA. APPARENTLY THE TRANSPORTATION OFFICER INSTRUCTED THE CARRIER TO MAKE STORAGE ARRANGEMENTS AND TO MAKE SUBSEQUENT DELIVERY TO THE CONSIGNEE. THE CONTRACT WAS A SINGLE UNIFIED TRANSACTION FOR THE PURPOSE OF MOVING THE SERVICEMAN'S HOUSEHOLD GOODS FROM WASHINGTON, D.C., TO HIS NEW STATION, FORT WALTON BEACH, FLORIDA. SEE 43 COMP. GEN. 290 (1963); 35 ID. 524 (1956). THE PARTIES TO THE CONTRACT WERE THE GOVERNMENT AS SHIPPER AND INTERSTATE VAN LINES, INC., THE CARRIER TO WHICH THE GOODS WERE ORIGINALLY TENDERED.

THE RECORD SHOWS THAT THE HOUSEHOLD GOODS WERE PLACED IN THE CARRIER SELECTED STORAGE WAREHOUSE OF COLONIAL MOVING COMPANY ON NOVEMBER 7, 1968. INTERSTATE VAN LINES, IN PRIVITY TO THE CONTRACT OF CARRIAGE AS EVIDENCED BY THE BILL OF LADING, WAS THE PROPER CARRIER ENTITLED TO BILL AND RECEIVE PAYMENT FOR ALL CHARGES ASSESSABLE FOR SERVICES PERFORMED PURSUANT TO THE TERMS OF THE BILL OF LADING CONTRACT.

YOUR COMPANY, PURSUANT TO THE REGULATIONS IN 5 GAO 3075.20, BILLED AND WAS PAID THE LINE-HAUL CHARGES OF $511 ON DECEMBER 26, 1968, BY THE ARMY FINANCE CENTER ON VOUCHER 494770. IN SUPPORT OF YOUR BILL YOU FURNISHED A CERTIFICATE DATED DECEMBER 4, 1968, IN ATTEMPTED COMPLIANCE WITH THOSE REGULATIONS, WHEREBY YOU ASSUMED FULL COMMON CARRIER LIABILITY DURING THE DESIGNATED STORAGE PERIOD AND UNTIL DELIVERY TO THE CONSIGNEE OR OWNER; BUT YOU ADDED AN ADDITIONAL SENTENCE TO THE CERTIFICATE WHICH IN PART WAS NOT REQUIRED OR AUTHORIZED BY THE REGULATIONS AS FOLLOWS:

"THE WAREHOUSE NAMED ABOVE (COLONIAL MOVING COMPANY) MAY VOUCHER AND RECEIVE PAYMENT FROM THE GOVERNMENT AS AGENT OF CARRIER (INTERSTATE VAN LINES) ALL S.I.T. CHARGES AUTHORIZED ON GOVERNMENT BILL OF LADING DESCRIBED ABOVE (E-6355524), SUCH CHARGES TO BE AUDITED BEFORE PAYMENT AS CARRIER ASSUMES NO LIABILITY FOR OVERPAYMENT UNLESS BILLING IS TENDERED DIRECTLY BY CARRIER."

THE WAREHOUSEMAN, COLONIAL MOVING COMPANY, BILLED AND WAS PAID CHARGES OF $175.28 FOR THE STORAGE, HANDLING, DELIVERY TO THE RESIDENCE AND UNPACKING LABOR ON JANUARY 20, 1969, BY THE ARMY FINANCE CENTER ON VOUCHER 55144. THE BILL WAS STATED IN THE NAME OF "INTERSTATE VAN LINES, INC. C/O COLONIAL MOVING CO., INC. AGT."

ALTHOUGH THE PRESENT RECORD DOES NOT INDICATE IN WHAT MANNER THE PAYMENT CHECK WAS DRAWN, OUR REGULATIONS IN 5 GAO 3060.29(4) STATE THAT THE CHECK SHOULD BE DRAWN IN THE NAME OF THE PRINCIPAL, AND MAILED TO THE AGENT AND IT IS ASSUMED THAT THIS WAS DONE IN THE PRESENT INSTANCE. COLONIAL MOVING COMPANY BILLED AS AGENT OF THE ORIGIN CARRIER, INTERSTATE VAN LINES, WHICH IS PERMITTED BY 5 GAO 3060.29(4).

ON DECEMBER 10, 1968, THE TRAFFIC MANAGEMENT OFFICE, EGLIN AIR FORCE BASE, ISSUED A MTMTS FORM 128, REWEIGH OF HOUSEHOLD GOODS, CORRECTING THE ORIGINALLY BILLED WEIGHT OF 5,640 POUNDS TO 5,350 POUNDS. THE REWEIGHING IS SUPPORTED BY A SCALE TICKET DATED NOVEMBER 7, 1958. ON MAY 20, 1969, THE ARMY FINANCE CENTER ISSUED AND SENT TO US A FCUSA FORM 21-178, REQUEST FOR AUDIT AND VERIFICATION OF WEIGHT AND RATE, PERTAINING TO THIS SHIPMENT AND ATTACHING THE AFOREMENTIONED REWEIGH REPORT AND SCALE TICKET.

OUR AUDIT OF THE PAYMENT VOUCHERS SUBSEQUENTLY REVEALED THAT THERE WAS AN OVERCHARGE OF $25.18, PRINCIPALLY DUE TO THE REWEIGH, IN THE COMBINED PAYMENT. OUR NOTICE OF OVERCHARGE (FORM 1003) WAS ISSUED TO YOUR COMPANY ON FEBRUARY 6, 1970, AND ON MARCH 24, 1970, YOU REFUNDED THE $25.18. SIMULTANEOUSLY WITH THE TRANSMITTAL OF THE REFUND CHECK, YOU FILED A PROTEST AND RECLAIMED $7.83 ARISING FROM THE STORAGE AND RELATED CHARGES WHICH HAD BEEN PAID TO INTERSTATE IN CARE OF YOUR AGENT, COLONIAL. OUR SETTLEMENT CERTIFICATE OF MAY 2, 1972, DISALLOWED THIS CLAIM FOR $7.83.

YOUR CONTENTION THAT BECAUSE OF YOUR "SIT WAIVER" YOU ASSUMED NO LIABILITY FOR OVERPAYMENT OF WAREHOUSE CHARGES UNLESS BILLING WAS TENDERED DIRECTLY BY YOUR CORPORATION IS WITHOUT MERIT. THE ATTEMPTED MODIFICATION OF THE CERTIFICATE REQUIRED BY 5 GAO 3075.20 WHICH ENABLES CARRIERS TO BE PAID LINE-HAUL CHARGES AT THE TIME GOODS ARE PLACED IN STORAGE AND PRIOR TO ACTUAL DELIVERY OF THE GOODS TO THE ULTIMATE DESTINATION OF SHIPMENT TO THE SERVICEMAN'S RESIDENCE IS A UNILATERAL SELF-SERVING CHANGE IN THE CERTIFICATE WHICH LACKS ESSENTIAL CONSIDERATION. SINCE THE BILL OF LADING CALLED FOR THE TRANSPORTATION, STORAGE AND SUBSEQUENT DELIVERY OUT OF THE GOODS, PAYMENT PRIOR TO THE COMPLETION OF ALL SUCH SERVICES WAS JUSTIFIED ONLY UPON EXECUTION OF THE CERTIFICATE REQUIRED IN 5 GAO 3075.20, WHICH DOES NOT INCORPORATE A DISAVOWAL OF LIABILITY BY THE CERTIFIER. SINCE THE ATTEMPTED MODIFICATION WAS AT VARIANCE WITH THAT FORM OF CERTIFICATE AND WAS WITHOUT CONSIDERATION, IT COULD NOT PRECLUDE THE UNITED STATES FROM COLLECTING DESTINATION OVERCHARGES FROM INTERSTATE VAN LINES.

IN THESE CIRCUMSTANCES, IT APPEARS THAT THE DISALLOWANCE OF YOUR CLAIM FOR $7.83 BY SETTLEMENT CERTIFICATE OF MAY 2, 1972, WAS CORRECT AND, IT IS THEREFORE SUSTAINED.