B-180520, JUN 12, 1974

B-180520, JUN 12, 1974

CARRIER'S CLAIM FOR AMOUNT ADMINISTRATIVELY DEDUCTED FOR UNEARNED FREIGHT IS DISALLOWED WHERE THE BILL OF LADING CONTRACT CONDITIONS PAYMENT UPON DELIVERY AS A PRECEDENT TO PAYMENT.

TO SUDDATH VAN LINES, INC.:

SUDDATH VAN LINES, INC. (SUDDATH), TRANSPORTED ON JULY 15, 1969, A SHIPMENT OF HOUSEHOLD GOODS ON GOVERNMENT BILL OF LADING NO. F-0480655 FROM SPRINGFIELD, MASSACHUSETTS, TO BERGSTROM AIR FORCE BASE, TEXAS. THE GOODS WERE PLACED IN STORAGE-IN-TRANSIT AT GUARDIAN TRANSFER AND STORAGE OF AUSTIN, TEXAS, ON JULY 24, 1969, AND WERE DESTROYED BY FIRE ON AUGUST 12, 1969. ON SEPTEMBER 15, 1969, ABOUT ONE MONTH AFTER THE FIRE, SUDDATH BILLED FOR LINE HAUL AND ACCESSORIAL CHARGES AND WAS PAID $836.43 ON OCTOBER 7, 1969. SUBSEQUENTLY ON JANUARY 19, 1970, ABOUT FIVE MONTHS AFTER SPECTROLAB WAS AWARE OF THE POSSIBILITY THAT AWARD MIGHT BE MADE BEFORE THE STATED DEADLINE.

ACCORDINGLY, SPECTROLAB'S PROTEST IS DENIED. THE FIRE, SUDDATH BILLED FOR STORAGE, HANDLING AND DELIVERY OUT CHARGES OF $124.74 AND WAS PAID ON FEBRUARY 13, 1970. THE SUPPLEMENTAL BILL WAS APPARENTLY SUBMITTED AND SUPPORTED BY A DD FORM 619, STATEMENT OF ACCESSORIAL SERVICES PERFORMED, WITHOUT THE REQUISITE SIGNATURE OF THE CONSIGNEE. ON DECEMBER 26, 1973, THE ARMY FINANCE CENTER SET OFF THE TOTAL AMOUNT PAID SUDDATH ($961.17) FROM AMOUNTS OTHERWISE DUE THE CARRIER.

BY LETTER DATED JANUARY 17, 1974, SUDDATH CONTENDS THAT SERVICES HAD BEEN PERFORMED AND THAT THEREFORE ITS CLAIM FOR CHARGES FOR THOSE SERVICES SHOULD BE ALLOWED.

WHETHER SUDDATH IS ENTITLED TO ITS CHARGES IS DETERMINED UNDER THE GOVERNMENT BILL OF LADING CONTRACT. INCORPORATED ON THE REVERSE OF THE BILL OF LADING, AMONG OTHER THINGS, IS CONDITION NO. 1, WHICH READS:

"PREPAYMENT OF CHARGES SHALL IN NO CASE BE DEMANDED BY CARRIER, NOR SHALL COLLECTION BE MADE FROM CONSIGNEE. ON PRESENTATION OF THIS BILL OF LADING, PROPERLY ACCOMPLISHED AND ATTACHED TO FREIGHT VOUCHER PREPARED ON THE AUTHORIZED GOVERNMENT FORM, TO THE OFFICE INDICATED ON THE FACE HEREOF, PAYMENT WILL BE MADE TO THE LAST CARRIER, UNLESS OTHERWISE SPECIFICALLY STIPULATED."

THE RECORD INDICATES THAT THE CONSIGNEE DID NOT RECEIVE HIS HOUSEHOLD GOODS AT DESTINATION, ALTHOUGH THEY WERE DELIVERED INTO STORAGE-IN TRANSIT. CONDITION NO. 1 MEANS, AMONG OTHER THINGS, THAT DELIVERY OF THE HOUSEHOLD GOODS TO THE CONSIGNEE IS A CONDITION PRECEDENT TO THE GOVERNMENT'S LIABILITY FOR THE FREIGHT CHARGES. STRICKLAND TRANSPORTATION CO. V. UNITED STATES, 223 F.2D 466, 468 (1955); NATIONAL TRAILER CONVOY, INC. V. UNITED STATES, 345 F.2D 573 (1965); SEE, ALSO, ALCOA STEAMSHIP CO. V. UNITED STATES, 338 U.S. 421 (1949). AND ACCESSORIAL AND DELIVERY OUT CHARGES LIKEWISE ARE NOT DUE WHERE, AS HERE, THE CONSIGNEE DID NOT RECEIVE THE HOUSEHOLD GOODS AT DESTINATION.

THEREFORE, SUDDATH'S CLAIM FOR $961.17 MUST BE AND IS DISALLOWED.