B-20568, SEPTEMBER 26, 1941, 21 COMP. GEN. 265

B-20568, SEPTEMBER 26, 1941, 21 COMP. GEN. 265

ASSIGNMENT OF CLAIMS - AMOUNTS DUE FOR TRANSPORTATION OF GOVERNMENT PROPERTY ON GOVERNMENT BILLS OF LADING A GOVERNMENT BILL OF LADING CONSTITUTES A CONTRACT FOR TRANSPORTATION OF THE GOODS INVOLVED AND AS SUCH COMES WITHIN THE AUTHORITY IN THE ASSIGNMENT OF CLAIMS ACT OF 1940 TO ASSIGN MONEYS DUE OR TO BECOME DUE "UNDER A CONTRACT PROVIDING FOR PAYMENTS AGGREGATING $1,000 OR MORE., WHERE A CARRIER HAS ASSIGNED TO A BANK ALL MONEYS DUE FOR FREIGHTS ON THE OUTWARD VOYAGE OF A VESSEL, AND THE GOVERNMENT BILLS OF LADING REPRESENTING NUMEROUS SHIPMENTS ON THE VESSEL CONSTITUTE THE ONLY CONTRACT FOR THE TRANSPORTATION, THE ASSIGNMENT MAY BE RECOGNIZED, UNDER THE ASSIGNMENT OF CLAIMS ACT OF 1940, AS AUTHORIZING PAYMENT IN THE NAME OF THE ASSIGNEE ONLY WITH RESPECT TO EACH SUCH BILL OF LADING WHICH INVOLVES A PAYMENT OF $1,000 OR MORE, BUT WHERE THE AMOUNT INVOLVED IS LESS THAN $1,000, PAYMENT SHOULD BE MADE IN THE NAME OF THE TRANSPORTATION COMPANY AND THE CHECK MAILED IN CARE OF THE ASSIGNEE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, SEPTEMBER 26, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 15, 1941, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE BANK OF AMERICA, SAN FRANCISCO, CALIFORNIA, DATED JULY 1, 1941, WITH ACCOMPANYING CORRESPONDENCE. YOUR DECISION IS REQUESTED ON THE QUESTION PRESENTED BY THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, IN THE FIRST ENDORSEMENT HEREWITH OF JULY 18, 1941, AS TO WHETHER THE ASSIGNMENT OF CLAIMS ACT OF 1940 (54 STAT. 1029), APPROVED OCTOBER 9, 1940, IS SUFFICIENTLY BROAD TO AUTHORIZE THE ASSIGNMENT OF CLAIMS FOR TRANSPORTATION CHARGES PAYABLE UNDER GOVERNMENT BILLS OF LADING.

SINCE THE ASSIGNMENT OF CLAIMS ACT OF 1940 APPLIES ONLY WITH RESPECT TO "PAYMENTS AGGREGATING $1,000 OR MORE," IF THE ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER PAYMENT UNDER SAID ACT IS AUTHORIZED OF THE AGGREGATE AMOUNT REPRESENTED BY THE SEVENTEEN BILLS OF LADING IN QUESTION, COPIES OF WHICH ARE ENCLOSED, OR WHETHER PAYMENT IS RESTRICTED TO THE AGGREGATE AMOUNT REPRESENTED ONLY BY THE FOUR BILLS OF LADING, NOS. N563634, N559200, N559131, AND N559024, AND THE RESPECTIVE AMOUNTS OF $16,370.06, $2,206.76, $1,084.75, AND $3,137.36.

IT APPEARS, FROM THE PAPERS ENCLOSED WITH THE ABOVE-QUOTED LETTER THAT THE SUPPLY OFFICER, NAVY YARD, MARE ISLAND, CALIF., HAS MADE SOME 17 SHIPMENTS ON GOVERNMENT BILLS OF LADING, VIA STEAMSHIP ADMIRAL Y. S. WILLIAMS, OF THE AMERICAN PRESIDENT LINES, JOHN N. RAYMOND, OWNER, CONSIGNED TO THE SUPPLY OFFICER, NAVAL STATION, GUAM. THE BILLS OF LADING ON WHICH THE SHIPMENTS WERE MADE, TOGETHER WITH THE AMOUNTS REPORTED TO BE DUE FOR SHIPMENT OF THE MATERIAL COVERED THEREBY, ARE AS FOLLOWS:

CHART BILL OF LADING NO.: AMOUNT N559272 ------------ 756.20

N563634 ----------- $16,370.06 N559133 ------------- 149.43

N559200 ----------- 2,206.76 N559243 ------------- 7.66

N559026 ----------- 171.55 N559073 ------------- 83.14

N559209 ----------- 400.64 N559025 ------------- 35.87

N559131 ----------- 1,084.75 N559232 ------------- 7.60

N559023 ----------- 549.34 N563253 ------------- 61.09

N559024 ----------- 3,137.36 N559211 ------------- 225.63

N558589 ----------- 9.67 N558606 ------------- 465.63

UNDER DATE OF JUNE 3, 1941, THERE WAS EXECUTED BY JOHN N. RAYMOND AN INSTRUMENT PURPORTING TO ASSIGN TO THE BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION PURSUANT TO THE ASSIGNMENT OF CLAIMS ACT OF 1940, 54 STAT. 1029, ALL MONEYS DUE OR TO BECOME DUE FOR FREIGHTS ON THE OUTWARD VOYAGE OF THE ADMIRAL Y. S. WILLIAMS, COMMENCING APRIL 24, 1941, ON VARIOUS BILLS OF LADING COVERING SHIPMENTS FOR THE UNITED STATES NAVY. COPIES OF SAID ASSIGNMENT AND NOTICES THEREOF ARE REPORTED BY THE ASSIGNEE TO HAVE BEEN FORWARDED TO THIS OFFICE, TO THE DISBURSING OFFICER, BUREAU OF SUPPLIES AND ACCOUNTS, OR TO THE CONTRACTING OFFICER, BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT.

IN RESPONSE TO A REQUEST FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, FOR AN OPINION AS TO WHETHER THE ASSIGNMENT OF CLAIMS ACT OF 1940 AUTHORIZED ASSIGNMENT OF AMOUNTS DUE FOR TRANSPORTATION OF GOVERNMENT PROPERTY ON GOVERNMENT BILLS OF LADING, THE JUDGE ADVOCATE GENERAL OF THE NAVY, BY SECOND INDORSEMENT OF AUGUST 2, 1941, ADVISED AS FOLLOWS:

1. THE ASSIGNMENT OF CLAIMS ACT OF 1940 ( PUBLIC, NO. 811, 76TH CONG.), APPROVED OCTOBER 9, 1940, AUTHORIZES, UNDER CONDITIONS AS THEREIN SPECIFIED, THE ASSIGNMENT OF MONEYS DUE OR TO BECOME DUE UNDER "A CONTRACT PROVIDING FOR PAYMENTS AGGREGATING $1,000 OR MORE.'

2. IT APPEARS THAT NO FORMAL CONTRACT WAS ENTERED INTO IN THE PRESENT CASE; OTHERWISE, THE QUESTION WOULD NOT ARISE WHETHER GOVERNMENT BILLS OF LADING ARE COMPREHENDED WITHIN THE TERMS OF THE ASSIGNMENT OF CLAIMS ACT OF 1940.

3. THE ACCEPTED RULE APPEARS TO BE THAT A BILL OF LADING IS A RECEIPT FOR A CONSIGNMENT OF GOODS AND OPERATES BOTH AS A RECEIPT AND CONTRACT FOR THE TRANSPORTATION OF GOODS. IN THE CASE OF POLLARD V. VINTON (105 U.S. 7), A BILL OF LADING IS DEFINED, AS FOLLOWS:

"IT IS AN INSTRUMENT OF A TWOFOLD CHARACTER; IT IS AT ONCE A RECEIPT AND A CONTRACT. IN THE FORMER CHARACTER IT IS AN ACKNOWLEDGMENT OF THE RECEIPT ON PROPERTY ON BOARD HIS VESSEL BY THE OWNER OF THE VESSEL; IN THE LATTER IT IS A CONTRACT TO CARRY SAFELY AND DELIVER. THE RECEIPT OF THE GOODS LIES AT THE FOUNDATION OF THE CONTRACT TO CARRY AND DELIVER. IF NO GOODS ARE ACTUALLY RECEIVED, THERE CAN BE NO VALID CONTRACT TO CARRY OR ARE ACTUALLY RECEIVED, THERE CAN BE NO VALID CONTRACT TO CARRY OR DELIVER.'

4. IN ACCORDANCE WITH THIS GENERALLY ACCEPTED DEFINITION OF THE TERM "BILL OF LADING," IT WOULD APPEAR THAT THE ASSIGNMENT OF CLAIMS ACT OF 1940 IS BROAD ENOUGH TO AUTHORIZE THE ASSIGNMENT OF CLAIMS FOR TRANSPORTATION CHARGES PAYABLE UNDER GOVERNMENT BILLS OF LADING. HOWEVER, SINCE THE ANSWER TO THIS QUESTION WILL BE OF INTEREST TO OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT AND ALSO WILL INVOLVE THE LEGAL AVAILABILITY OF NAVAL APPROPRIATIONS, WHICH LATTER QUESTION IS EXCLUSIVELY ONE UNDER THE JURISDICTION OF THE COMPTROLLER GENERAL OF THE UNITED STATES, IT IS THE CONSIDERED VIEW OF THIS OFFICE THAT AN AUTHORITATIVE RULING ON THIS QUESTION SHOULD BE OBTAINED FROM THE COMPTROLLER GENERAL.

5. WITH THE RETURN OF PAPERS, IT IS REQUESTED THAT THIS OFFICE BE FURNISHED A COPY OF THE GOVERNMENT BILLS OF LADING REFERRED TO IN THE BASIC LETTER, TOGETHER WITH A STATEMENT AS TO WHETHER A CONTRACT OR AGREEMENT OF ANY DESCRIPTION, OTHER THAN THE BILLS OF LADING REFERRED TO, WAS ENTERED INTO IN THIS PARTICULAR CASE. SINCE, AS INDICATED ABOVE, THE ASSIGNMENT OF CLAIMS ACT OF 1940 IS APPLICABLE ONLY WITH RESPECT TO "PAYMENTS AGGREGATING $1,000 OR MORE," THE ADDITIONAL INFORMATION HEREIN REQUESTED IS FOR USE IN THAT CONNECTION.

6. UPON RETURN OF PAPERS WITH THE ADDITIONAL INFORMATION HEREIN REQUESTED, THIS OFFICE PROPOSES TO RECOMMEND REFERENCE OF THE QUESTION TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR DECISION.

THEREAFTER IT WAS REPORTED BY THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, THAT THE BILLS OF LADING SERVED AS THE SOLE BASIS AND AUTHORITY FOR THE MOVEMENT OF THE MATERIAL COVERED THEREBY AND THAT NO OTHER CONTRACT OR AGREEMENT WAS MADE WITH THE TRANSPORTATION COMPANY.

THE ASSIGNMENT OF CLAIMS ACT OF 1940, 54 STAT. 1029, PROVIDES IN PERTINENT PART AS FOLLOWS:

THAT SECTIONS 3477 AND 3737 OF THE REVISED STATUTES BE AMENDED BY ADDING AT THE END OF EACH SUCH SECTION THE FOLLOWING NEW PARAGRAPH:

"THE PROVISIONS OF THE PRECEDING PARAGRAPH SHALL NOT APPLY IN ANY CASE IN WHICH THE MONEYS DUE OR TO BECOME DUE FROM THE UNITED STATES OR FROM ANY AGENCY OR DEPARTMENT THEREOF, UNDER A CONTRACT PROVIDING FOR PAYMENTS AGGREGATING $1,000 OR MORE, ARE ASSIGNED TO A BANK, TRUST COMPANY, OR OTHER FINANCING INSTITUTION, INCLUDING ANY FEDERAL LENDING AGENCY: * * *"

THE JUDGE ADVOCATE GENERAL OF THE NAVY HAS STATED IN HIS ABOVE QUOTED INDORSEMENT THE GENERALLY ACCEPTED VIEW, EXPRESSED IN POLLARD V. VINTON, 105 U.S. 7, THAT BILLS OF LADING CONSTITUTE NOT ONLY A RECEIPT FOR THE GOODS INVOLVED, BUT A CONTRACT FOR THEIR TRANSPORTATION. SEE, ALSO, THE TONGOY, 55 F. 329; PLANTERS' FERTILIZER MFG. CO. V. ELDER, 101 F. 1001; COBB V. BROWN, 193 F. 985, 960; IN RE LIVINGSTON AND TURK, 205 F. 364, 366; SECOND NATIONAL BANK OF HOBOKEN V. COLUMBIA TRUST CO., 288 F. 17, 23, 30 A.L.R. 1299; AND THE JEAN JADOT, 14 F.1SUPP. 161, 162.

REGARDING EACH OF THE BILLS OF LADING AS SEPARATE CONTRACTS IT WOULD APPEAR THAT AMOUNTS DUE OR TO BECOME DUE AS A RESULT OF THE TRANSPORTATION OF GOODS COVERED THEREBY, MAY BE ASSIGNED SUBJECT TO THE PROVISIONS AND UPON COMPLIANCE WITH THE CONDITIONS OF THE ASSIGNMENT OF CLAIMS ACT OF 1940. UNDER THAT ACT, HOWEVER, MONEYS DUE OR TO BECOME DUE MAY BE ASSIGNED ONLY UNDER A CONTRACT PROVIDING FOR PAYMENTS AGGREGATING $1,000 OR MORE AND, CONSEQUENTLY, SUCH OF THE BILLS OF LADING AS DO NOT REQUIRE PAYMENT OF FREIGHT CHARGES OF $1,000 OR MORE MAY NOT BE ASSIGNED UNDER THE PROVISIONS OF THAT ACT. ACCORDINGLY, THE ASSIGNMENT IN QUESTION MAY BE ACCEPTED AS AUTHORIZING PAYMENT IN THE NAME OF THE ASSIGNEE FOR CHARGES ON THE FOUR BILLS OF LADING, EACH OF WHICH INVOLVES A PAYMENT OF MORE THAN $1,000, BUT AS TO THE REMAINING BILLS OF LADING THE ASSIGNMENT MAY NOT BE RECOGNIZED AND PAYMENT SHOULD BE MADE IN THE NAME OF THE TRANSPORTATION COMPANY WITH THE UNDERSTANDING, HOWEVER, THAT THE CHECKS BE MAILED IN CARE OF THE ASSIGNEE.