B-198065.OM, APR 12, 1982

B-198065.OM, APR 12, 1982

SUBJECT: PERSONAL PROPERTY CLAIM - ROBERT A. WILLIAMS - B-198065 - O.M. DIGEST: INABILITY OF GAO EMPLOYEE TO IDENTIFY INDIVIDUAL ITEMS OF HOUSEHOLD GOODS ON INVENTORY SHEETS, IN CLAIM UNDER MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964 (31 U.S.C. SEC. 240-243), FOR DAMAGE TO THOSE ITEMS ALLEGEDLY OCCURING DUE TO TRANSPORTATION BY MOTOR CARRIER INCIDENT TO TRANSFER OF OFFICIAL DUTY STATION, PRESENTS NO LEGAL OBSTACLE TO ALLOWANCE WHERE RECORD AS A WHOLE PROVIDES REASONABLE BASIS FOR FINDING SUBSTANTIATION OF FACT THAT THE DAMAGED ARTICLES WERE SHIPPED; HOWEVER, PART OF CLAIM FOR DAMAGE TO ITEMS TRANSPORTED BY EMPLOYEE NOT ALLOWABLE BECAUSE IT CANNOT BE DETERMINED FROM RECORD WHETHER EMPLOYEE OR CARRIER'S NEGLIGENCE CAUSED DAMAGE.

CHIEF, AFS - INDIA C. JENKINS:

WE REFER TO YOUR MEMORANDUM OF OCTOBER 6, 1981, CONCERNING A CLAIM PRESENTED BY ROBERT A. WILLIAMS FOR DAMAGE TO HOUSEHOLD GOODS UNDER SECTION 3(A) OF THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, PUB.L. NO. 88-558, 31 U.S.C. SEC. 241(B)(1) (SUPP. III 1979), AND IMPLEMENTING REGULATIONS, GAO ORDER NO. 0267.1 (AUGUST 26, 1980).

THE CLAIM APPEARS TO INVOLVE THREE CATEGORIES OF ARTICLES: (1) CARRIER- DELIVERED, (2) OVERFLOW ITEMS, DELIVERED BY CLAIMANT, AND (3) ARTICLES PACKED IN CARTONS BUT OTHERWISE NOT IDENTIFIABLE. THE CLAIMANT, ON GAO FORM 287, STATES THAT ALL DAMAGE CLAIMED IS ON CARRIER DELIVERED GOODS; HOWEVER, WE NOTE THAT THE SCHEDULE OF PROPERTY ATTACHED TO THE FORM LISTS NUMEROUS ARTICLES THAT ARE SHOWN IN THE OVERFLOW AND NOT IDENTIFIABLE CATEGORIES.

YOU ASK TWO QUESTIONS: (1) WHETHER YOU CAN PAY FOR DAMAGED PROPERTY THAT CANNOT BE IDENTIFIED ON THE DESCRIPTIVE INVENTORY OF THE ITEMS SHIPPED, AND (2) WHETHER YOU CAN PAY FOR DAMAGE TO ITEMS INCLUDED IN THAT PART OF THE SHIPMENT RETRIEVED FROM THE CARRIER AT ORIGIN AND TRANSPORTED TO DESTINATION BY THE EMPLOYEE.

WE CONCLUDE THAT THE AMOUNTS CLAIMED FOR DAMAGE TO ITEMS TRANSPORTED BY MR. WILLIAMS ARE NOT ALLOWABLE; HOWEVER, TO THE EXTENT THE CLAIM FOR CARRIER-DELIVERED ITEMS NOT IDENTIFIED ON THE DESCRIPTIVE INVENTORY SATISFIES OTHER PROVISIONS OF THE STATUTE AND REGULATIONS, THERE APPEARS TO BE EXTENUATING CIRCUMSTANCES WHICH WOULD PERMIT YOU TO CONCLUDE THAT MR. WILLIAMS SUBSTANTIATED THAT PART OF HIS CLAIM, DESPITE THE FACT THAT THE ACT OF PACKING THE SPECIFIC ITEMS WAS NOT RECORDED PRIOR TO SHIPMENT. THIS DISPOSITION WOULD BE CONSISTENT WITH LAW AND YOUR INTEREST IN MAKING A FAIR SETTLEMENT WITH THE EMPLOYEE. OUR REASONS FOLLOW.

THE CLAIM AROSE IN CONNECTION WITH MR. WILLIAMS' TRANSFER OF OFFICIAL DUTY STATION FROM ALBANY TO NEW YORK, NEW YORK UNDER GAO TRAVEL ORDER NO. 1151000026. AMENDMENT NO. 2, DATED APRIL 23, 1981, AUTHORIZED TRANSPORTATION AND STORAGE OF THE EMPLOYEE'S HOUSEHOLD GOODS. THE TRANSFER OF THE EMPLOYEE'S PERSONAL PROPERTY FROM ALBANY, NEW YORK, TO HIS NEW RESIDENCE IN RIDGEWOOD, NEW JERSEY, WAS HANDLED BY A GENERAL SERVICES ADMINISTRATION (GSA) CONTRACTOR ON GOVERNMENT BILL OF LADING K-1370695, DATED APRIL 23, 1981.

THE RESULTS OF A GSA INVESTIGATION SUPPORT THE EMPLOYEE'S POST PERFORMANCE REPORT WHICH CONCLUDED THAT THE CARRIER'S SERVICE WAS ENTIRELY UNSATISFACTORY, AND THE AGENCY CONCLUDED THAT THE CARRIER WAS NEGLIGENT IN HANDLING MR. WILLIAMS' SHIPMENT.

THE CLAIMANT REPORTED THAT THE PACKERS ARRIVED A DAY LATE, AND, IN HASTE, PREPARED AN INCOMPLETE INVENTORY OF THE HOUSEHOLD GOODS; THAT THE CARRIER REPRESENTED TO HIM THAT THE GENERAL DESCRIPTION, "CARTONS," ON THE INVENTORY SHEETS CONSTITUTED ACCEPTABLE GBL PRACTICE; THAT THE VEHICLE DISPATCHED TO TRANSPORT THE PROPERTY CONTAINED INSUFFICIENT SPACE, SO HIS PROPERTY WAS IMPROPERLY STUFFED INTO A VAN AND ROUGHLY HANDLED, AND THAT THE OVERFLOW FROM THE TRUCKLOAD WAS LOADED ON ANOTHER VEHICLE.

THE FOREGOING EVIDENCE OF CARRIER MISHANDLING PLUS EVIDENCE THAT THE LISTED CARTONS CONTAINED A SUBSTANTIAL QUANTITY OF ARTICLES WOULD SUPPORT A FINDING THAT THE DAMAGED "CARRIER-DELIVERED" ITEMS, ALTHOUGH UNIDENTIFIED ON THE INVENTORY SHEETS, WERE ACTUALLY SHIPPED AND DAMAGED BY THE CARRIER.

THE CLAIMS ACT REQUIRES THAT A CLAIM BE "SUBSTANTIATED," AND PARAGRAPH 2B(3) OF OUR REGULATIONS REQUIRES AN INVENTORY OF PROPERTY SHIPPED; HOWEVER, WE ARE OF THE OPINION THAT IN THE LIGHT OF THE UNUSAL CIRCUMSTANCES INVOLVED IN THE TRANSPORTATION OF MR. WILLIAMS' PROPERTY, THE ABSENCE OF A DETAILED DESCRIPTION OF EACH ITEM ON THE INVENTORY NEED NOT REQUIRE THE CONCLUSION THAT THE CLAIM IS NOT SUBSTANTIATED. THEREFORE, ON THIS RECORD, THE CLAIMANT'S INABILITY TO RELATE DAMAGED, CARRIER-DELIVERED ITEMS TO SPECIFIC DESCRIPTIONS ON THE INVENTORY SHEETS PRESENTS NO LEGAL OBSTACLE TO ALLOWING THAT PART OF MR. WILLIAMS' CLAIM.

CONCERNING DAMAGE TO OVERFLOW ITEMS, CLAIMS ARE NOT ALLOWABLE FOR DAMAGE CAUSED WHOLLY OR PARTLY BY THE CLAIMANT'S NEGLIGENCE. COMPARE, B-201703- O.M., JUNE 8, 1981. ALTHOUGH THERE IS EVIDENCE IN THE RECORD INDICATING THAT THE CARRIER'S AGENTS WERE NEGLIGENT, IT IS UNDISPUTED THAT MR. WILLIAMS, WITH OTHERS ENGAGED BY HIM, WAS SUBSTANTIALLY INVOLVED IN THE MOVEMENT OF THE OVERFLOW. HE PICKED UP THE OVERFLOW FROM THE VICINITY OF THE SHIPMENT'S ORIGIN, PERFORMED THE LINEHAUL TRANSPORTATION AND EFFECTED DELIVERY. THESE CIRCUMSTANCES PREVENT A RELIABLE ASSIGNMENT OF RESPONSIBILITY FOR THE DAMAGE AND PERMIT OPPOSING INFERENCES OF RESPONSIBILITY POINTING TO MR. WILLIAMS AND TO THE CARRIER. THEREFORE, ALLOWANCE FOR THE OVERFLOW ITEMS IS PROHIBITED.