B-156591, MAY 21, 1965

B-156591, MAY 21, 1965

TO MR. PAUL F. TRAVELSTEAD, UNITED STATES ATOMIC ENERGY COMMISSION:

THIS REFERS TO YOUR LETTER OF APRIL 21, 1965, FILE OCAC: JRS, CONCERNING THE TRANSPORTATION OF THE HOUSEHOLD EFFECTS OF MR. WALTER A. RADELOFF, AN EMPLOYEE OF THE ATOMIC ENERGY COMMISSION.

INCIDENT TO A CHANGE OF DUTY STATION MR. RADELOFF WAS AUTHORIZED BY ORDER DATED APRIL 2, 1959, TO SHIP HIS HOUSEHOLD EFFECTS FROM CINCINNATI, OHIO, TO CHALK RIVER, ONTARIO, CANADA. THE MOVEMENT OF THE EMPLOYEE'S EFFECTS WEIGHING 9,421 POUNDS WAS ACCOMPLISHED IN JUNE 1959 BY MOTOR CARRIER FOR WHICH THE GOVERNMENT PAID THE SUM OF $1,077.57. HOWEVER, A REVISED BILLING BASED UPON A LESSER NUMBER OF MILES RESULTED IN A REFUND BY THE CARRIER OF $32.97, THUS REDUCING THE ACTUAL AMOUNT PAID BY THE GOVERNMENT TO $1,044.60.

THE WEIGHT ALLOWANCE TO WHICH THE EMPLOYEE WAS ENTITLED AT THE TIME OF SHIPMENT WAS GOVERNED BY DIRECTIVE AECM-1521-122 DATED DECEMBER 5,1956, WHICH READS IN PART AS FOLLOWS:

"1. EMPLOYEES HAVING IMMEDIATE FAMILIES WITH SHIPMENT INVOLVING TRANSPORTATION BY VESSEL OVER ALL OR PART OF THE ROUTE, OR SHIPMENT BY RAIL OR MOTOR CARRIERS REQUIRING PACKING OR CRATING SHALL BE ALLOWED 8,750 POUNDS; SHIPMENT BY MOTOR CARRIERS UNCRATED IS RESTRICTED TO 7,000 POUNDS.'

SO FAR AS APPLICABLE HERE THE REGULATIONS ALSO PROVIDE THAT WHEN THE SHIPMENT IS MADE ON A GOVERNMENT BILL OF LADING THE EMPLOYEE SHALL PROMPTLY PAY TO THE AGENCY THE CHARGES RESULTING FROM THE TRANSPORTATION OF GOODS IN EXCESS OF HIS AUTHORIZED WEIGHT ALLOWANCE.

ON JULY 22, 1959, THE EMPLOYEE WAS ADVISED THAT HE WAS ALLOWED SHIPMENT OF 8,750 POUNDS GROSS AND HAVING SHIPPED 9,420 POUNDS HE WAS REQUESTED TO REMIT THE SUM OF $76.64 COVERING THE EXCESS WEIGHT. THIS ACTION WAS BASED UPON THE ASSUMPTION OR OPINION THAT THE EFFECTS WERE CRATED, ETC. HOWEVER, A REEXAMINATION OF THE CARRIER'S BILLINGS LED TO THE CONCLUSION THAT SUCH WAS NOT THE CASE AND THAT THE EMPLOYEE WAS ENTITLED TO A WEIGHT ALLOWANCE OF 7,000 POUNDS.

IN JANUARY 1962 THE EMPLOYEE'S DUTY STATION WAS CHANGED TO CHICAGO, ILLINOIS, AND TRANSPORTATION OF HIS HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE WAS AUTHORIZED. SHIPMENT OF 9,400 POUNDS WAS ACCOMPLISHED IN FEBRUARY 1962 BY THE SAME CARRIER AT A COST OF $1,135.40; INCLUDING $37.50 FOR INSURANCE, ALL OF WHICH WAS PAID BY THE GOVERNMENT. AS IN THE CASE OF THE FIRST SHIPMENT THE BILLING DID NOT INCLUDE ANY CHARGE FOR CRATING AND IT WAS CONCLUDED THAT THE MAXIMUM ALLOWANCE OF 7,000 POUNDS FOR SHIPMENT BY MOTOR CARRIER UNCRATED WAS APPLICABLE. DEMANDS FOR PAYMENT OF THE EXCESS COSTS BASED ON A MAXIMUM AUTHORIZED WEIGHT OF 7,000 POUNDS HAVE BEEN UNAVAILING.

THE EMPLOYEE SAYS THAT THE EFFECTS WERE IN FACT CRATED AND POINTS OUT THAT THE INVOICES OF THE CARRIER REFLECT CHARGES FOR CRATES. ALSO HE REQUESTS TO BE INFORMED OF "THE FORM AND NATURE OF THE "FURTHER EVIDENCE" WHICH YOU REQUIRE FOR THIS MATTER TO BE RESOLVED IN A FAIR AND JUST NER.'

THE INVOICE COVERING THE FIRST SHIPMENT SHOWS 5 CRATES AT A TOTAL COST OF $31 WHILE THAT COVERING THE SECOND SHIPMENT SHOWS 3 CRATES AT $1.25 PER CUBIC FOOT OR $13.50. THUS ON THE BASIS OF THE CHARGES THEREFOR THE 5 CRATES HAD AN AVERAGE CAPACITY OF LESS THAN 5 CUBIC FEET WHILE THE 3 CRATES IN THE SECOND SHIPMENT HAD AN AVERAGE CAPACITY OF LESS THAN 4 CUBIC FEET. OBVIOUSLY THE USE OF THESE SMALL ITEMS IS INSUFFICIENT TO ESTABLISH THAT THE SHIPMENTS WEIGHING SOME 9,400 POUNDS EACH WERE CRATED AS CONTEMPLATED BY THE REGULATIONS AND CANNOT SERVE TO ALLOW THE EMPLOYEE AN ADDITIONAL WEIGHT ALLOWANCE OF 1,850 POUNDS ON EACH SUCH SHIPMENT. THEREFORE, UNLESS FURTHER EVIDENCE IS FURNISHED THAT WILL CLEARLY ESTABLISH THAT THE EFFECTS WERE IN FACT CRATED REIMBURSEMENT SHOULD BE REQUIRED.

CONCERNING THE MATTER OF INTEREST WE WOULD NOT BE REQUIRED TO OBJECT TO THE ACCEPTANCE OF THE PRINCIPAL AMOUNT OF THE DEBT IN FULL SETTLEMENT THEREOF. WE POINT OUT, HOWEVER, THAT IN BRINGING SUIT TO RECOVER OVERPAYMENTS, ERRONEOUS PAYMENTS, ETC., IT IS THE PRACTICE OF THE DEPARTMENT OF JUSTICE TO DEMAND INTEREST THEREON.

AS TO YOUR COMPUTATION, THE STATEMENT ACCOMPANYING YOUR LETTER SHOWS CREDIT TO THE EMPLOYEE OF THE FULL AMOUNT OF $32.97 REFUNDED BY THE CARRIER. SINCE THIS AMOUNT REPRESENTS EXCESS MILEAGE CHARGED ON THE ENTIRE SHIPMENT THE EMPLOYEE WOULD APPEAR TO BE ENTITLED TO CREDIT FOR ONLY HIS PRO RATA SHARE THEREOF. THEREFORE, SUCH AMOUNT SHOULD BE DEDUCTED FROM THE PAYMENT TO THE CARRIER BEFORE THE COST IS PRORATED. THE WEIGHT OF THE SECOND SHIPMENT IS SHOWN ON THE CARRIER'S BILL AS 9,400 POUNDS WHEREAS YOUR COMPUTATION STATEMENT SHOWS IT AS 9,420 POUNDS ALTHOUGH THE EXTENSIONS APPEAR TO BE CORRECT. ALSO, THE EMPLOYEE SHOULD BE CHARGED WITH THE FULL AMOUNT OF THE INSURANCE PAYMENT AS PROPOSED.