B-193397, FEB 22, 1980

B-193397, FEB 22, 1980

DIGEST: EMPLOYEE OF DRUG ENFORCEMENT ADMINISTRATION IS LIABLE FOR EXCESS COSTS INCURRED IN TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS WHERE TOTAL WEIGHT EXCEEDED STATUTORY MAXIMUM LIMIT OF 11,000 POUNDS. WEIGHT OF 6,970 POUNDS OF EFFECTS IN STORAGE WAS ESTABLISHED BY WEIGHT CERTIFICATE. CARRIER-CERTIFIED INVOICES COVERING SHIPMENTS OF 3,801 AND 1,242 POUNDS SUPPORTED BY BILLS OF LADING SHOWING MEASUREMENTS AND WEIGHTS OF SHIPMENTS WERE PAID WITHOUT EXCEPTION. ALTHOUGH WEIGHT CERTIFICATES FOR SHIPMENTS INVOLVED WERE NOT SUBMITTED, REGULATIONS DID NOT REQUIRE THEM. ALSO, EMPLOYEE SUBMITTED NO EVIDENCE SHOWING THAT WEIGHTS WERE INCORRECT.

ROBERT J. FUREY - TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS:

THIS ACTION IS IN RESPONSE TO A REQUEST BY MR. EDWIN J. FOST, CHIEF, ACCOUNTING SECTION, OFFICE OF THE CONTROLLER, DRUG ENFORCEMENT ADMINISTRATION (DEA), DEPARTMENT OF JUSTICE, FOR OUR DECISION WHETHER MR. ROBERT J. FUREY, AN EMPLOYEE OF THE AGENCY, IS LIABLE FOR EXCESS COSTS OF $473.84 FOR TRANSPORTATION AND STORAGE OF HOUSEHOLD EFFECTS IN EXCESS OF 11,000 POUNDS.

THE FACTS AND CIRCUMSTANCES CONSTITUTING THE BASIS OF THE CLAIM, AS REPORTED, ARE AS FOLLOWS:

"ON PERMANENT CHANGE OF STATION ORDERS DATED AUGUST 31, 1971 MR. ROBERT J. FUREY AND FAMILY WERE TRANSFERRED FROM WASHINGTON, D. C. TO HONG KONG AND 6,970 POUNDS OF HOUSEHOLD EFFECTS WERE PUT INTO NON TEMPORARY STORAGE WITH MERCHANTS STORAGE COMPANY, ALEXANDRIA, VIRGINIA. THE HOUSEHOLD EFFECTS REMAINED IN STORAGE AND DEA PAID STORAGE COSTS THROUGH FEBRUARY 14, 1977.

"ON PERMANENT CHANGE OF STATION ORDERS DATED JUNE 20, 1975 MR. ROBERT J. FUREY AND FAMILY WERE TRANSFERRED FROM HONG KONG TO JAKARTA, INDONESIA. IN CONNECTION WITH THIS TRANSFER MR. ROBERT J. FUREY HAD AN OCEAN SHIPMENT OF 3801 POUNDS FROM HONG KONG TO JAKARTA, INDONESIA AND A SHIPMENT OF 1242 POUNDS FROM HONG KONG TO SAN FRANCISCO (FOR STORAGE). THE HOUSEHOLD EFFECTS REMAINED IN STORAGE IN SAN FRANCISCO AND DEA PAID STORAGE COSTS THROUGH OCTOBER 18, 1977. SUBSEQUENTLY, MR. ROBERT J. FUREY WAS TRANSFERRED FROM JAKARTA, INDONESIA TO WASHINGTON, D. C. ON TRAVEL AUTHORIZATION DATED MARCH 30, 1977.

"BASED ON THE ABOVE MR. ROBERT J. FUREY WAS ADVISED BY DEA MEMORANDUM OF DECEMBER 22, 1977 THAT HE SHIPPED/STORED 12,013 POUNDS (6970 3801 1242) IN CONNECTION WITH HIS TRANSFER FROM HONG KONG TO JAKARTA, INDONESIA. DEA REQUESTED MR. ROBERT J. FUREY TO REPAY $428.76 (BASED ON THE LAST SHIPMENT FROM HONG KONG TO JAKARTA) FOR THE EXCESS WEIGHT.

"IN CONNECTION WITH THE SHIPMENT FROM HONG KONG TO SAN FRANCISCO DEA PAID STORAGE COSTS THROUGH OCTOBER 18, 1977. SINCE MR. ROBERT J. FUREY LEFT JAKARTA, INDONESIA ON APRIL 18, 1977 (TRANSFERRED FROM JAKARTA, INDONESIA TO WASHINGTON, D. C.) STORAGE COSTS PAID BY DEA SHOULD TERMINATE ON MAY 31, 1977. THEREFORE, MR. FUREY WAS BILLED FOR $45.08 FOR STORAGE COSTS FROM JUNE 1, 1977 THROUGH OCTOBER 18, 1977."

MR. FUREY CONTESTS ONLY THE GOVERNMENT'S CLAIM FOR $428.76 INCIDENT TO HIS 1975 TRANSFER. HE STATES THERE IS NO PROOF THAT THE EFFECTS SHIPPED IN 1975 WERE OVERWEIGHT BECAUSE WEIGHT CERTIFICATES WERE NOT PREPARED AT THE TIME THE GOODS WERE SHIPPED. FOR THE REASONS STATED BELOW THE SHIPMENT/STORAGE OF EFFECTS IN 1975 EXCEEDED THE ALLOWABLE WEIGHT LIMITATION.

AUTHORITY FOR TRANSPORTING THE HOUSEHOLD EFFECTS OF TRANSFERRED EMPLOYEES AT GOVERNMENT EXPENSE IS FOUND AT 5 U.S.C. SEC. 5724(A) (1970), WHICH ALSO ESTABLISHES THE MAXIMUM WEIGHT OF THE GOODS AUTHORIZED TO BE TRANSPORTED AS 11,000 POUNDS. THE IMPLEMENTING REGULATIONS TO THAT STATUTE ARE FOUND IN THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7, MAY 1973. PARAGRAPH 2- 8.2(A) OF THE FTR REPEATS THE 11,000 POUND MAXIMUM WEIGHT ALLOWANCE FOUND IN THE STATUTE. PARAGRAPH 2-8.4E(2) PROVIDES THAT THE EMPLOYEE IS RESPONSIBLE FOR THE PAYMENT OF COSTS ARISING FROM THE SHIPMENT OF EXCESS WEIGHT. THE IMPLEMENTING REGULATIONS ARE IN ACCORD WITH THE STATUTORY LIMITATION AND, THUS, HAVE THE FORCE AND EFFECT OF LAW. THEREFORE, REGARDLESS OF THE REASONS FOR THE SHIPMENT OF THE EXCESSIVE WEIGHT OF HOUSEHOLD GOODS, THE EMPLOYEE IS REQUIRED TO PAY THE GOVERNMENT THE CHARGES INCURRRED INCIDENT TO THE SHIPMENT OF THE EXCESS WEIGHT. RICHARD L. CANAS, B-189358, FEBRUARY 8, 1978.

THIS OFFICE HAS CONSISTENTLY HELD THAT THE QUESTION OF WHETHER AND TO WHAT EXTENT AUTHORIZED SHIPPING WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD EFFECTS AND THE EXCESS COSTS INVOLVED ARE CONSIDERED TO BE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY AND ORDINARILY WILL NOT BE QUESTIONED IN THE ABSENCE OF EVIDENCE SHOWING SUCH DETERMINATION TO BE CLEARLY IN ERROR. FREDRIC NEWMAN, B-195256, NOVEMBER 15, 1979.

BY MEMORANDUM DATED FEBRUARY 22, 1978, MR. FUREY STATED THAT HE DISAGREED WITH THE OVERWEIGHT CHARGES AND REQUESTED COPIES OF THE WEIGHT RECEIPTS. THE DEA, BY LETTER OF APRIL 13, 1978, REQUESTED THE CARRIER, SMYTH INTERNATIONAL VAN LINES, LTD., TO FORWARD THE WEIGHT CERTIFICATES FOR INVOICES HK-31/7-75 (THE 1,242 POUND SHIPMENT) AND HK 34/7-75 (THE 3,801 POUND SHIPMENT) EVIDENCING SHIPMENT OF THE PERSONAL EFFECTS OF THE EMPLOYEE. THE TWO REQUESTED WEIGHT CERTIFICATES WERE PREPARED BY THE MOVER AND TRANSMITTED BY LETTER DATED MAY 26, 1978. THE WEIGHT CERTIFICATE FOR THE SHIPMENT FROM HONG KONG TO SAN FRANCISCO, PREPARED BY SMYTH INTERNATIONAL, WAS DATED JUNE 23, 1975, AND SHOWED A GROSS WEIGHT OF 1,710 POUNDS, A TARE WEIGHT OF 468 POUNDS, AND A NET WEIGHT OF 1,242 POUNDS. THE CERTIFICATE FOR THE SHIPMENT FROM HONG KONG TO JAKARTA WAS DATED JUNE 23 AND 24, 1975, AND SHOWED A GROSS WEIGHT OF 5,239 POUNDS, A TARE WEIGHT OF 1,438 POUNDS, AND A NET WEIGHT OF 3,801 POUNDS. EACH WEIGHT CERTIFICATE AND THE INITIALS OF THE WEIGHMASTER WERE TYPEWRITTEN. IN VIEW OF THIS AND SINCE THE RECORD SHOWS THAT THE CERTIFICATES WERE PREPARED IN 1978 FROM THE SHIPPING DOCUMENTS, THEY HAVE NO EVIDENTIARY VALUE. THEREFORE, WE EXAMINED THE COPIES OF THE BILLS OF LADING, INVOICES AND VOUCHERS COVERING THE SHIPMENTS INVOLVED. IN THIS CONNECTION WE POINT OUT THAT THE WEIGHT OF HOUSEHOLD GOODS IN A PARTICULAR SHIPMENT IS A QUESTION OF FACT ESTABLISHED BY THE SHIPPING DOCUMENTS OF THAT SHIPMENT. B-162530, MARCH 13, 1970.

INVOICE NO. HK-34/7-75 FROM SMYTH INTERNATIONAL TO THE AMERICAN CONSULATE GENERAL REQUESTS PAYMENT FOR THE MOVEMENT OF TWO CONTAINERS OF HOUSEHOLD GOODS OF THE CLAIMANT, 618 CUBIC FEET, WEIGHING 3,801 POUNDS. ON THIS INVOICE, THE CARRIER, THROUGH ITS GENERAL MANAGER, CERTIFIED THAT THE AFORE STATED AND OTHER INFORMATION ON THE INVOICE WAS CORRECT AND JUST. THE INVOICE IS SUPPORTED BY A BILL OF LADING SHOWING TWO LIFTVANS OF USED HOUSEHOLD GOODS. IN THIS REGARD, PAYMENT VOUCHER NO. 6111 DATED APRIL 7, 1976, APPROVED BY MR. FUREY, SHOWS PAYMENT BY THE GOVERNMENT OF THE CHARGES FOR MOVEMENT OF THE EMPLOYEE'S HOUSEHOLD EFFECTS. THE VOUCHER SHOWS THAT THE WEIGHT SHIPPED WAS: 5,239 POUNDS GROSS WEIGHT AND 3,801 POUNDS NET WEIGHT.

WITH RESPECT TO THE SHIPMENT OF THE 1,242 POUNDS OF PERSONAL EFFECTS OF MR. FUREY FROM HONG KONG TO SAN FRANCISCO FOR STORAGE, INVOICE NO. HK- 31/75 DISCLOSES SHIPMENT OF TWO CONTAINERS, 202 CUBIC FEET, WEIGHING 1,242 POUNDS. THE INFORMATION ON THE INVOICE WAS CERTIFIED BY THE GENERAL MANAGER OF SMYTH INTERNATIONAL AS BEING CORRECT AND JUST. THE BILL OF LADING SHOWS DELIVERY OF THE TWO LIFTVANS CONTAINING MR. FUREY'S HOUSEHOLD EFFECTS TO THE U. S. DISPATCH AGENT IN SAN FRANCISCO. THE VOUCHER COVERING THIS SHIPMENT WAS PAID WITHOUT ANY EXCEPTION BEING TAKEN.

IN A LETTER DATED MAY 22, 1978, THE CARRIER STATED THAT AS CONTRACTOR FOR THE AMERICAN CONSULATE GENERAL IN HONG KONG, THEY ARE INSTRUCTED TO PERFORM SERVICES ON A PACK-AND-CRATE BASIS, THAT NO WEIGHT ALLOWANCE IS SPECIFIED AND NO LIMIT ESTABLISHED. SMYTH INTERNATIONAL ALSO STATED THAT NO WEIGHT CERTIFICATE IS REQUESTED OR ISSUED AS IS DONE AUTOMATICALLY ON A DOOR-TO-DOOR SHIPMENT. IN THIS CONNECTION THE REGULATIONS OF THE DEPARTMENT OF STATE IN THE FOREIGN AFFAIRS MANUAL, VOLUME 6, DO NOT SPECIFICALLY REQUIRE THE ISSUANCE OF WEIGHT CERTIFICATES BY THE CARRIER IN A "DIRECT PROCUREMENT" OR "PACK AND-CRATE" METHOD OF SHIPMENT. THE VOUCHERS WERE PAID WITHOUT EXCEPTION AND MR. FUREY HAS NOT PRODUCED ANY EVIDENCE TO SHOW THAT THE WEIGHTS WERE INCORRECT. IN FACT, AS NOTED ABOVE, MR. FUREY APPROVED THE VOUCHER COVERING THE LARGER OF THE TWO SHIPMENTS IN 1975. THEREFORE, ON THE PRESENT RECORD WE HAVE NO BASIS TO HOLD THAT THE WEIGHTS OF THE TWO SHIPMENTS IN 1975, 3,801 AND 1,242 POUNDS, RESPECTIVELY, ARE INCORRECT.

ACCORDINGLY, MR. FUREY IS LIABLE FOR THE COSTS INCURRED BY THE EXCESS WEIGHT AND STORAGE OF HIS HOUSEHOLD GOODS IN THE TOTAL AMOUNT OF $473.84. TO HIS APPOINTMENT WITH THE FOREST SERVICE IN JULY 1978. IN THE AUDIT AND SETTLEMENT OF THE ACCOUNTS OF ANY CERTIFYING OR DISBURSING OFFICER OF THE UNITED STATES, CREDIT SHALL BE GIVEN FOR THE AMOUNT FOR WHICH LIABILITY IS RELIEVED BY THE ACT."