B-180180, FEB 1, 1974

B-180180, FEB 1, 1974

ARMY EMPLOYEE TRANSFERRED FROM ARIZONA TO ALASKA, WHO SHIPPED HOUSEHOLD GOODS IN EXCESS OF THE 11,000 LB. WEIGHT LIMIT, REQUESTED RELIEF FROM PAYMENT OF EXCESS CHARGES ON GROUND THAT TRANSPORTATION OFFICER FAILED TO NOTIFY HIM PRIOR TO SHIPMENT THAT WEIGHT EXCEEDED LIMIT AS REQUIRED BY JTR. RELIEF DENIED SINCE THERE IS NO EVIDENCE TRANSPORTATION OFFICER KNEW OF EXCESS WEIGHT AND, EVEN IF HE DID, GOVT. IS NOT LIABLE FOR NEGLIGENCE OF ITS AGENTS. ALSO, JTR MAKES EMPLOYEE LIABLE FOR EXCESS CHARGES AND THERE IS NO AUTHORITY TO WAIVE SUCH CHARGES.

TO MR. VERN N. GREEN:

WE REFER FURTHER TO YOUR LETTER OF SEPTEMBER 18, 1973, REQUESTING A REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION BY LETTER DATED AUGUST 15, 1973, HOLDING THAT YOU ARE INDEBTED TO THE UNITED STATES FOR SHIPMENT OF EXCESS HOUSEHOLD GOODS UNDER THE CIRCUMSTANCES STATED BELOW.

THE RECORD INDICATES THAT BY ORDERS DATED FEBRUARY 9, 1970, YOU WERE TRANSFERRED FROM NAVAJO ARMY DEPOT, FLAGSTAFF, ARIZONA, TO FORT RICHARDSON, ALASKA. YOUR HOUSEHOLD GOODS WERE SHIPPED ON OR ABOUT JUNE 4, 1970, ON A GOVERNMENT BILL OF LADING. THE SHIPPING WEIGHT WAS 1,400 POUNDS OVER THE 11,000-POUND LIMIT AND YOU WERE SUBSEQUENTLY BILLED $574.70 FOR EXCESS WEIGHT.

THERE IS NO DISPUTE ABOUT THE AMOUNT OF EXCESS WEIGHT OR THE CHARGES THEREFOR. YOU CONTEND THAT YOU DID NOT AUTHORIZE THE SHIPMENT OF ANY EXCESS WEIGHT; THAT BEFORE SHIPMENT YOU ATTEMPTED TO ASCERTAIN THE AMOUNT OF ANY EXCESS WEIGHT FROM THE CARRIER AND FROM THE APPROPRIATE GOVERNMENT OFFICE; THAT THROUGH NEGLIGENCE OR INADVERTENCE YOU WERE NOT NOTIFIED OF THE WEIGHT OF THE GOODS; THAT HAD YOU BEEN NOTIFIED OF AN EXCESS, YOU WOULD HAVE REDUCED THE WEIGHT OF THE SHIPMENT TO THE ALLOWABLE LIMIT; AND THAT YOU ARE NOT RESPONSIBLE FOR THE OVERWEIGHT CHARGES.

SECTION 5724(A)(2) OF TITLE 5, U.S.C. PROVIDES FOR PAYMENT BY THE GOVERNMENT OF THE EXPENSES OF TRANSPORTING UP TO 11,000 POUNDS OF HOUSEHOLD GOODS OF TRANSFERRED EMPLOYEES. REGULATIONS ISSUED UNDER THE AUTHORITY OF 5 U.S.C. 5724(A) PROVIDE THAT THE TRANSFERRED EMPLOYEE IS LIABLE FOR ALL COSTS IN CONNECTION WITH SHIPMENTS OF HOUSEHOLD EFFECTS IN EXCESS OF THE WEIGHT LIMITATION. THE SIGNATURE OF THE EMPLOYEE ON THE APPLICATION FOR SHIPMENT, DD FORM 1299, CONSTITUTES AN AGREEMENT TO PAY EXCESS WEIGHT CHARGES. SEE PARAGRAPH C 7052-2(A), VOLUME 2, JOINT TRAVEL REGULATIONS (JTR), AND B-177738, MARCH 9, 1973, COPY ENCLOSED. DD FORM 1299, WHICH YOU SIGNED ON FEBRUARY 17, 1970, INCLUDES THE FOLLOWING:

"I WILL REMIT THE PROPER AMOUNT OR PERMIT THE APPLICATION OF AS MUCH OF MY PAY AS MAY BE NECESSARY TO COVER ALL EXCESS COST OCCASIONED BY THIS SHIPMENT."

PARAGRAPH C 7052-2(A), VOLUME 2, JTR, ALSO PROVIDES THAT WHEN THE EXCESS WEIGHT IS KNOWN PRIOR TO SHIPMENT, THE TRANSPORTATION OFFICER WILL NOTIFY THE EMPLOYEE. HOWEVER, THERE IS NO EVIDENCE IN THE RECORD TO INDICATE KNOWLEDGE ON THE PART OF THE TRANSPORTATION OFFICER. ALSO, EVEN IF THE TRANSPORTATION OFFICER HAD KNOWN AND FAILED TO NOTIFY YOU, YOUR OBLIGATION FOR THE EXCESS WEIGHT CHARGES WOULD REMAIN. FIRST, THERE IS NO STATUTORY AUTHORITY FOR A WAIVER OF THE WEIGHT LIMITATION OR FOR PAYMENTS BY THE GOVERNMENT OF EXCESS WEIGHT CHARGES ON SHIPMENTS OF EMPLOYEE'S HOUSEHOLD GOODS. SECOND, UNDER PARAGRAPH C 7052-2(A), VOLUME 2, JTR, LIABILITY FOR EXCESS WEIGHT CHARGES IS NOT CONTINGENT UPON NOTIFICATION EVEN WHERE THE TRANSPORTATION OFFICER HAS KNOWLEDGE. THIRD, IN THE ABSENCE OF SPECIFIC AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR ERRONEOUS ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 44 COMP. GEN. 337, 339 (1964).

IN YOUR LETTER, YOU CITE THREE DECISIONS OF THE COMPTROLLER GENERAL IN SUPPORT OF YOUR POSITION. HOWEVER, THE CASES ARE NOT APPLICABLE IN THE PRESENT CASE. 44 COMP. GEN. 769 (1965) INVOLVED A CLAIM BY A CARRIER AGAINST THE UNITED STATES AND CONCERNED APPLICABILITY OF TARIFF RATES. ISSUE WAS THE LIABILITY OF THE UNITED STATES AND NOT THE LIABILITY OF A THIRD PARTY UNDER 5 U.S.C. 5724. WHILE 49 COMP. GEN. 255 (1969) INVOLVES PAYMENT OF EXCESS WEIGHT CHARGES, IT IS CONCERNED WITH ALLOWANCES FOR MILITARY MEMBERS, NOT CIVILIAN EMPLOYEES. MOREOVER, THE CASE HELD THAT THE TRANSFERRED MEMBER WAS REQUIRED TO PAY EXCESS WEIGHT CHARGES. SIMILARLY, 18 COMP. GEN. 405 (1938) HOLDS THAT THE CARRIER SHIPPING HOUSEHOLD GOODS FOR AN EMPLOYEE AT GOVERNMENT EXPENSE MUST COLLECT THE EXCESS CHARGES FROM THE EMPLOYEE AND THAT THE GOVERNMENT AGENCY IS NOT REQUIRED TO COLLECT THE EXCESS FOR THE CARRIER. IN THE INSTANT CASE, HOWEVER, THE GOVERNMENT AGREED TO COLLECT AND YOU AGREED TO PAY THE GOVERNMENT ANY EXCESS WEIGHT CHARGES.

IT IS UNFORTUNATE THAT YOU WERE NOT NOTIFIED PRIOR TO SHIPMENT THAT YOUR HOUSEHOLD GOODS EXCEEDED THE MAXIMUM WEIGHT FOR WHICH THE GOVERNMENT MAY PAY, UNDER 5 U.S.C. 5724. HOWEVER, FOR THE REASONS STATED ABOVE WE HAVE NO AUTHORITY TO RELIEVE YOU OF LIABILITY FOR THE EXCESS SHIPPING COSTS.