B-189015(2), SEP 6, 1977

B-189015(2): Sep 6, 1977

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DIGEST: ARMY GENERAL OFFICER WHO SHIPPED HOUSEHOLD GOODS IN EXCESS OF AUTHORIZED WEIGHT ALLOWANCE IS NOT RELIEVED OF RESPONSIBILITY FOR EXCESS COST BECAUSE CARRIER FAILED TO REWEIGH SHIPMENT SINCE EXCESS WEIGHT IS AN ADMINISTARTIVE DETERMINATION BASED ON FACTS PRESENTED AND THIS OFFICE WOULD NOT BE WARRANTED IN QUESTIONING SUCH DETERMINATION WITHOUT CLEAR EVIDENCE OF ERROR OR FRAUD ON PART OF THE CARRIER. THE RECORD SHOWS THAT THREE SHIPMENTS OF HOUSEHOLD GOODS OR PERSONAL EFFECTS WERE MADE INCIDENT TO GENERAL HIGHTOWER'S RETIREMENT FROM HIS DUTY STATION AT FORT HAMILTON. H-0852538 AND WAS PICKED UP JULY 18. THE SHIPMENT WAS DELIVERED AT DESTINATION ON FEBRUARY 20. TRANSPORTATION CHARGES WERE PAID TO THE CARRIER BY THE GOVERNMENT ON THE BASIS OF A BILLED WEIGHT OF 16.

B-189015(2), SEP 6, 1977

DIGEST: ARMY GENERAL OFFICER WHO SHIPPED HOUSEHOLD GOODS IN EXCESS OF AUTHORIZED WEIGHT ALLOWANCE IS NOT RELIEVED OF RESPONSIBILITY FOR EXCESS COST BECAUSE CARRIER FAILED TO REWEIGH SHIPMENT SINCE EXCESS WEIGHT IS AN ADMINISTARTIVE DETERMINATION BASED ON FACTS PRESENTED AND THIS OFFICE WOULD NOT BE WARRANTED IN QUESTIONING SUCH DETERMINATION WITHOUT CLEAR EVIDENCE OF ERROR OR FRAUD ON PART OF THE CARRIER. SEE COMP.GEN. DECISIONS CITED. TO SENATOR THURMOND.

STROM THURMOND, UNITED STATES SENATE:

WE REFER TO YOUR LETTER OF JUNE 27, 1977, ON BEHALF OF MAJOR GENERAL JOHN M. HIGHTOWER, USAR). GENERAL HIGHTOWER HAS REQUESTED THAT HE BE RELIEVED OF FINANCIAL RESPONSIBILITY FOR EXCESS COSTS OF $532.39 INCURRED BY THE GOVERNMENT IN SHIPPING HIS HOUSEHOLD GOODS UPON HIS RETIREMENT.

THE RECORD SHOWS THAT THREE SHIPMENTS OF HOUSEHOLD GOODS OR PERSONAL EFFECTS WERE MADE INCIDENT TO GENERAL HIGHTOWER'S RETIREMENT FROM HIS DUTY STATION AT FORT HAMILTON, BROOKLYN, NEW YORK, TO HIS HOME OF RESIDENCE IN SOUTH CAROLINA. THE FIRST SHIPMENT MOVED UNDER GOVERNMENT BILL OF LADING (GBL) NO. H-0852538 AND WAS PICKED UP JULY 18, 1973, WITH STORAGE-IN- TRANSIT AT ORIGIN AUTHORIZED FOR 180 DAYS. THE SHIPMENT WAS DELIVERED AT DESTINATION ON FEBRUARY 20, 1974, AND TRANSPORTATION CHARGES WERE PAID TO THE CARRIER BY THE GOVERNMENT ON THE BASIS OF A BILLED WEIGHT OF 16,000 POUNDS.

A SECOND SHIPMENT WAS PICKED UP ON JULY 19, 1973, UNDER GBL NO. H 0852547, WITH STORAGE-IN-TRANSIT AUTHORIZED FOR 90 DAYS AT DESTINATION. THE SHIPMENT WAS REMOVED FROM STORAGE IN TWO LOTS, ONE DELIVERED ON AUGUST 8, 1973, AND THE OTHER ON JANUARY 21, 1974. TRANSPORTATION CHARGES WERE ORIGINALLY PAID BY THE GOVERNMENT ON THE BASIS OF A BILLED WEIGHT OF 2,140 POUNDS.

A THIRD SHIPMENT OF PERSONAL EFFECTS WEIGHING 172 POUNDS WAS MADE UNDER GBL NO. Z-8664494 AND DELIVERED AT DESTINATION ON MARCH 14, 1974.

THE ARMY FINANCE AND ACCOUNTING CENTER HAS STATED THAT THE PRESCRIBED WEIGHT ALLOWANCE FOR GENERAL HIGHTOWER WAS 13,500 POUNDS, THAT HIS AUTHORIZED WEIGHT ALLOWANCE WAS EXCEEDED, AND THAT EXCESS COSTS OF $532.39 WERE CHARGEABLE TO GENERAL HIGHTOWER.

GENERAL HIGHTOWER STATES THAT HE SHOULD BE RELIEVED FROM FINANCIAL RESPONSIBILITY BECAUSE THE SHIPMENT TRANSPORTED UNDER GBL NO. H-0852538 WEIGHED ALMOST THE SAME AS A SHIPMENT THE GENERAL HAD TRANSPORTED FROM GREECE TO THE UNITED STATES IN 1972. THE LATTER SHIPMENT APPARENTLY WAS WITHIN HIS AUTHORIZED WEIGHT ALLOWANCE. IN ADDITION, THE GENERAL STATES THAT THE CARRIER FAILED TO REWEIGH AT DESTINATION THE SHIPMENT OF HOUSEHOLD GOODS, TRANSPORTED UNDER GBL NO. H-0852538 ALTHOUGH IT WAS REQUESTED TO DO SO. GENERAL HIGHTOWER BELIEVES THAT THE CARRIER MADE AN ERROR IN WEIGHING THAT SHIPMENT, AND BY NOT REWEIGHING IT AT DESTINATION, FAILED IN ITS OBLIGATION TO THE GOVERNMENT AND TO HIM. GENERAL HIGHTOWER FURTHER BELIEVES THAT THE CARRIER SHOULD REIMBURSE THE GOVERNMENT FOR THE $532.39 HE IS CHARGED WITH.

SECTION 406 (B) OF TITLE 37, U.S.C. PROVIDES THAT IN CONNECTION WITH A CHANGE OF TEMPORARY OR PERMANENT STATION, A MEMBER IS ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS WITHIN WEIGHT ALLOWANCES PRESCRIBED BY THE SECRETARIES. UNDER A CONTINUING FUND LIMITATION EXPENDITURE PROVISION INCLUDED IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACTS, HOWEVER, THE MAXIMUM WEIGHT ALLOWANCE WHICH MAY BE TRANSPORTED IN ANY CASE IS 13,500 POUNDS.

UNIFORM REGULATIONS FOR TRANSPORTATION OF HOUSEHOLD EFFECTS OF THE UNIFORMED SERVICES ARE PRESCRIBED IN CHAPTER 8, VOLUME 1, OF THE JOINT TRAVEL REGULATIONS (JTR). PARAGRAPH M8007-2 OF THOSE REGULATIONS PROVIDES THAT THE GOVERNMENT'S MAXIMUM TRANSPORTATION OBLIGATION IS THE COST OF A THROUGH HOUSEHOLD GOODS MOVEMENT OF THE MEMBER'S PRESCRIBED WEIGHT ALLOWANCE (SEE PARAGRAPH M8003-1) IN ONE LOT BETWEEN AUTHORIZED PLACES. IT FURTHER PROVIDES THAT THE MEMBER WILL BEAR ALL TRANSPORTATION COSTS ARISING FROM SHIPMENT IN MORE THAN ONE LOT, FOR DISTANCE IN EXCESS OF THAT BETWEEN AUTHORIZED PLACES, AND FOR WEIGHTS IN EXCESS OF THE MAXIMUM ALLOWANCE PRESCRIBED IN PARAGRAPH M8003-1.

THE QUESTION OF WHETHER AND TO WHAT EXTENT AUTHORIZED WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD GOODS AND THE EXCESS COSTS INVOLVED ARE CONSIDERED TO BE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION SINCE OUR OFFICE HAS NO FIRST HAND INFORMATION CONCERNING THE MATTER AND WE NECESSARILY MUST RELY ON THE ADMINISTRATIVE DETERMINATION IN THE ABSENCE OF EVIDENCE CLEARLY SHOWING THAT IT IS IN ERROR. 46 COMP.GEN. 740 (1967); 51 COMP.GEN. 541,543 (1972).

GENERAL HIGHTOWER STATES THAT THE WEIGHT OF HIS HOUSEHOLD GOODS TRANSPORTED FROM ATHENS, GREECE, AND FROM STORAGE IN THE WASHINGTON, D. C. AREA TO FORT HAMILTON, NEW YORK, IN 1972, TOTALED 13,490 POUNDS AND THAT PRACTICALLY THE SAME HOUSEHOLD GOODS WERE TRANSPORTED TO SOUTH CAROLINA. HOWEVER, NEITHER THE OVERALL WEIGHT OF A SUBSEQUENT NOR PRIOR SHIPMENT OF HOUSEHOLD GOODS MAY BE USED IN DETERMINING THE EXCESS COST OF THE SHIPMENTS UNDER CONSIDERATION, PARTICULARLY WHEN THE SHIPMENTS HAVE BEEN MADE OVER EXTENDED PERIODS, UNDER DIFFERENT CIRCUMSTANCES AND INCLUDE SITUATIONS INVOLVING INCLUSIONS AND EXCLUSIONS OF CERTAIN HOUSEHOLD GOODS ITEMS. B-162530, MARCH 13, 1970; B-175484, JULY 26, 1972.

AS AN EXAMPLE OF DIFFERENT CIRCUMSTANCES AFFECTING THE WEIGHT OF A SHIPMENT OF HOUSEHOLD GOODS, 1 JTR PARAGRAPH M8002-1 PROVIDES THAT A 10 PERCENT PACKING ALLOWANCE CAN BE SUBTRACTED FROM THE GROSS WEIGHT OF THE HOUSEHOLD GOODS WHEN A SHIPMENT IS MADE IN UNCRATED CONDITION BY COMMERCIAL MOTOR VAN. HOWEVER, WHEN SPECIALLY DESIGNED CONTAINERS ARE USED IN OVERSEAS SHIPMENTS, A 20 PERCENT REDUCTION IS ALLOWED FOR THE WEIGHT OF THE PACKAGING MATERIALS. 1 JTR PARAGRAPH M8002-2.

FOR GENERAL HIGHTOWER'S SHIPMENT FROM GREECE, A 20 PERCENT ALLOWANCE FOR PACKING APPARENTLY WAS UTILIZED. BASED ON THE FIGURES HE PROVIDED, IF ONLY A 10 PERCENT PACKING ALLOWANCE HAD BEEN USED, HIS NET WEIGHT WOULD HAVE BEEN INCREASED BY 1,180 POUNDS THUS EXCEEDING HIS AUTHORIZED WEIGHT ALLOWANCE FOR THAT TRANSPORTATION.

THE EVIDENCE DOES INDICATE, AS GENERAL HIGHTOWER STATES, THAT THE CARRIER WAS ASKED TO REWEIGH THE SHIPMENT AND FAILED TO DO SO. HOWEVER, THE RECORD CONTAINS CERTIFIED WEIGHT CERTIFICATES FOR THE GROSS AND TARE WEIGHTS, DATED JULY 20 AND JULY 17, 1973, WHICH INDICATE A TOTAL NET WEIGHT OF 16,000 POUNDS. THE CERTIFICATE COMPLIES WITH INTERSTATE COMMERCE COMMISSION REGULATIONS. 49 C.F.R. 1056.6(B) (1976).

THE EVIDENCE DOES SHOW THAT THE 2,140-POUND SHIPMENT ON GBL NO. H 0852547, WAS 140 POUNDS LIGHTER WHEN A REWEIGH WAS PERFORMED BY THE CARRIER ON AUGUST 8, 1973, AT GENERAL HIGHTOWER'S REQUEST. HOWEVER, THE FACT THAT THE WEIGHT OF THAT SHIPMENT WAS IN ERROR DOES NOT PROVE THAT THE WEIGHT OF THE 16,000-POUND SHIPMENT WAS ALSO ERRONEOUS. IN RESPONSE TO AN INQUIRY FROM A TRANSPORTATION OFFICER AT FORT HAMILTON ABOUT THE WEIGHING PROCEDURES OF THE 16,000-POUND SHIPMENT, THE TRUCKING COMPANY (THE 7 SANTINI BROTHERS) ADVISED IN ITS LETTER OF NOVEMBER 1, 1976, THAT:

"ON JULY 17, 1973 A TARE WEIGHT OF 28,200 LBS WAS OBTAINED. AT 8:58 A.M. ON JULY 20 A GROSS WEIGHT OF 44,200 LBS WAS OBTAINED THUS GIVING AN OVERALL NET WEIGHT OF 16,000 LBS. SINCE WE HAD TO KEEP A SEPARATE ACCOUNT OF PROFESSIONAL EQUIPMENT AND HOUSEHOLD GOODS WE OFFLOADED THE PROFESSIONAL EQUIPMENT AND OBTAINED A TARE WEIGHT OF 43,020 LBS ONLY TO DISCOVER THAT ONE CARTON STILL REMAINED ON THE TRAILER. A SECOND WEIGHT WAS OBTAINED TO CORRECT AND ACCURATELY ACCOUNT FOR THE PROFESSIONAL EQUIPMENT. THE SECOND WEIGHT TICKET INDICATED A GROSS WEIGHT OF 42,980 LBS FOR THE HOUSEHOLD GOODS STILL ON THE TRUCK."

THUS, THE RECORD INDICATES THAT ALTHOUGH THE 16,000-POUND SHIPMENT WAS NOT REWEIGHED AT DESTINATION AS REQUESTED BY GENERAL HIGHTOWER, IT WAS TOTALLY WEIGHED ONCE AND THE WEIGHT SLIPS ARE OF RECORD AND THE CARRIER STATES THAT SEVERAL TARE WEIGHINGS WERE MADE TO OBTAIN THE WEIGHT OF THE PROFESSIONAL ITEMS. NONE OF THESE STATEMENTS AS TO THE TARE WEIGHTS CAST ANY DOUBT AS TO THE ACCURACY OF THE INITIAL WEIGHING.

DEPARTMENT OF DEFENSE REGULATIONS, DOD 4500.34-R, PARAGRAPH 6007, THE CARRIER'S TENDER OF SERVICE, DOD 4500.34-R, APPENDIX A, SECT. II, PARAGRAPH 20, AND INTERSTATE COMMERCE COMMISSION REGULATIONS, 49 C.F.R. 1056.6(D) (1976), REQUIRE THE CARRIER TO REWEIGH THE SHIPMENT UPON REQUEST OF THE SHIPPER OR HIS REPRESENTATIVE. HOWEVER, THE TRANSPORTATION VOUCHER PREPARED BY THE CARRIER IN SUPPORT OF ITS FREIGHT CHARGES IS SUPPORTED BY A VALID WEIGHT CERTIFICATE. THUS, IN THE ABSENCE OF FRAUD, WE KNOW OF NO AUTHORITY TO DENY THE CARRIER ITS LAWFUL FREIGHT CHARGES. THEREFORE, IF A CARRIER FAILS TO REWEIGH A SHIPMENT, THE ONLY REMEDIES AVAILABLE WOULD SEEM TO BE ACTIONS BY DOD TO WARN, SUSPEND, OR DISQUALIFY THE CARRIER, DOD 4500.34-R, PARAGRAPH 6005, OR TO PERHAPS FILE A SERVICE COMPLAINT WITH THE INTERSTATE COMMERCE COMMISSION.

ACCORDINGLY, THIS OFFICE IS WITHOUT AUTHORITY TO RELIEVE GENERAL HIGHTOWER OF HIS INDEBTEDNESS TO THE GOVERNMENT FOR EXCESS TRANSPORTATION CHARGES.

AS REQUESTED BY THE U. S. ARMY FINANCE AND ACCOUNTING CENTER WE HAVE NOTIFIED IT OF THE VALIDITY OF THE DEBT AND EXPECT THAT IT WILL BE COLLECTED IN ACCORDANCE WITH ITS USUAL PROCEDURES.

WE REGRET THAT WE CANNOT COME TO A MORE FAVORABLE CONCLUSION FOR YOUR CONSTITUENT.

AS YOU REQUESTED WE ARE RETURNING THE CORRESPONDENCE YOU ENCLOSED WITH YOUR LETTER.