B-129190, JAN. 28, 1957

B-129190, JAN. 28, 1957

TO MR. CHARLES G. CRYER:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24, 1956, IN EFFECT REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF OCTOBER 18, 1956, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM IN THE AMOUNT OF $893.07, REPRESENTING FREIGHT COSTS INCURRED ON A SHIPMENT OF LUMBER WHICH WAS REFUSED AND REJECTED BY THE GOVERNMENT AFTER TERMINATION OF CONTRACT NO. DA-09-026-ENG-29532 WITH THE DEPARTMENT OF THE ARMY.

SPECIFICALLY, YOU TAKE EXCEPTION TO THAT PORTION OF OUR DECISION WHICH STATES THAT THE CARRIER CONSIGNED THE SHIPMENT IN QUESTION BACK TO ITS POINT OF ORIGIN WITHOUT AUTHORIZATION FROM THE GOVERNMENT, AND TO SUPPORT YOUR CONTENTION THAT SUCH CONCLUSION IS IN ERROR YOU HAVE SUBMITTED A PHOTOSTATIC COPY OF A LETTER DATED NOVEMBER 14, 1956, FROM THE CENTRAL RAILROAD COMPANY OF NEW JERSEY ADVISING THAT THEIR AGENT AT BAYONNE, NEW JERSEY, STATES THE BILL OF LADING IN QUESTION WAS ISSUED BY THE NAVAL BASE AT BAYONNE. IN VIEW THEREOF, YOU CONTEND THAT THE UNITED STATES IS LIABLE FOR THE EXCESS FREIGHT CHARGES WHICH WERE INCURRED FROM BAYONNE TO KANSAS CITY, AT WHICH POINT YOU WERE ABLE TO INTERCEPT AND RECONSIGN THE SHIPMENT TO AVON, KENTUCKY.

THE BILL OF LADING IN QUESTION INDICATES THAT THE SHIPMENT WAS CONSIGNED TO COLLINS PINE CO., WESTWOOD, CALIFORNIA, BY CAPTAIN J. W. BOUNDY, ACTING FOR THE COMMANDING OFFICER, NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY, ON JANUARY 24, 1952, SUBJECT TO THE FOLLOWING ENDORSEMENTS WHICH WERE CONTAINED ON THE FACE OF THE BILL OF LADING:

"CONT DA Q9-026 ENG 29532 MATERIAL BEING RETURNED AS PER TELECON BET MR. BAREFIELD, ATL. DIV. ENG CORPS. ATLANTA, GA., AND MR. CONNOLLY, NSD BAYONNE.'

"THIS IS NOT THE PROPERTY OF THE FEDERAL GOV-T. ALL TRANSPORTATION CHARGES ARE PAYABLE BY CONSIGNEE WITHOUT RECOURSE TO THE NAVY DEPARTMENT.'

WITH RESPECT TO THE FIRST ENDORSEMENT QUOTED ABOVE, IT SHOULD BE NOTED THAT, WHILE THE SHIPMENT IN QUESTION WAS ORIGINALLY CONSIGNED TO THE NAVAL SUPPLY DEPOT AT BAYONNE, THE CONTRACT UNDER WHICH YOU MADE SUCH SHIPMENT WAS EXECUTED BY THE CONTRACTING OFFICER, PROCUREMENT BRANCH, CORPS OF ENGINEERS, SOUTH ATLANTIC DIVISION, ATLANTA, GEORGIA. UNDER THE CIRCUMSTANCES, QUESTIONS RELATIVE TO THE REJECTION OF SHIPMENTS WERE FOR DETERMINATION ONLY BY THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVES, AND UNDER THE PROVISIONS OF SECTION 5 (B) OF THE GENERAL PROVISIONS OF THE CONTRACT YOU AGREED THAT THE CONTRACTING OFFICER SHOULD HAVE THE RIGHT TO REJECT SHIPMENTS WITH OR WITHOUT INSTRUCTIONS AS TO THEIR DISPOSITION. ACCORDINGLY, THE RECORD INDICATES THAT ON JANUARY 21, 1952, MR. CONNOLLY, REPRESENTING THE NAVAL SUPPLY DEPOT, CONTACTED MR. B. C. BAREFIELD, SOUTH ATLANTIC DISTRICT, ATLANTA, GEORGIA, BY TELEPHONE TO REPORT RECEIPT OF THE SHIPMENT AND TO REQUEST DISPOSITION INSTRUCTIONS. MR. CONNOLLY WAS ADVISED TO RETURN THE CAR TO THE DELIVERING CARRIER PENDING RECEIPT OF DISPOSITION INSTRUCTIONS DIRECT FROM THE CONTRACTOR. SUCH ADVISE WAS CONFIRMED BY A TELETYPE MESSAGE DATED JANUARY 23, 1952, FROM THE DIVISION ENGINEER, SOUTH ATLANTIC DIVISION (WIO IS DESIGNATED AS THE CONTRACTING OFFICER'S REPRESENTATIVE BY SECTION 15 OF THE SPECIAL CONDITIONS OF THE CONTRACT) TO THE COMMANDING OFFICER, NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY, WHICH READS AS FOLLOWS:

"REURTT NM 211847Z PERIOD CAR WP2617 APPLYING CONTRACT DA-09-026 ENG- 29532 WITH CHARLES G. CRYER COMMA WACO COMMA TEXAS SHOULD BE REJECTED AND RETURNED TO CARRIER PERIOD CONTRACTOR NOTIFIED THIS DATE OF REJECTION AND ADVISED TO FORWARD DISPOSITION INSTRUCTIONS TO CARRIER PERIOD"

IT IS THEREFORE APPARENT THAT THE NAVAL SUPPLY DEPOT AT BAYONNE WAS AUTHORIZED ONLY TO RETURN THE REJECTED SHIPMENT TO THE DELIVERING CARRIER PENDING INSTRUCTIONS FROM THE SHIPPER AND THAT THE INCLUSION OF A REFERENCE TO SUCH INSTRUCTIONS ON THE FACE OF THE BILL OF LADING BY THE RAILROAD AGENT IS INDICATIVE OF THE FACT THAT THE CARRIER ACCEPTED THE REJECTED SHIPMENT WITH FULL KNOWLEDGE OF THE DISPOSITION INSTRUCTIONS ISSUED BY THE DIVISION ENGINEER.

UNDER THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE BILL OF LADING WAS SUBJECT TO THE QUALIFICATIONS CONTAINED IN THE ABOVE-QUOTED ENDORSEMENTS AND, AS SUCH, CONSTITUTED NO MORE THAN A REDELIVERY OF THE SHIPMENT TO THE DELIVERING CARRIER PENDING RECEIPT OF DISPOSITION INSTRUCTIONS FROM THE CARRIER. WHILE THE COPY OF A LETTER FROM THE CARRIER WHICH YOU HAVE SUBMITTED INDICATES THAT THE BILL OF LADING WAS ISSUED BY THE NAVAL BASE AT BAYONNE, THERE IS NO EVIDENCE THAT THE CONTRACTING OFFICER OR THE DISTRICT ENGINEER HAD AUTHORIZED NAVAL PERSONNEL TO DISPOSE OF THE SHIPMENT IN ANY MANNER OTHER THAN AS INDICATED BY THE ENDORSEMENTS ON THE BILL. THE RULE IS WELL ESTABLISHED THAT THE UNITED STATES IS NOT LIABLE FOR THE ACTS OF ITS AGENTS OUTSIDE THE SCOPE OF THEIR AUTHORITY. THE UNDERWRITER, 6 F.2D 937; FILOR V. UNITED STATES, 76 U.S. 45; WHITESIDE, ET AL. V. UNITED STATES, 93 U.S. 247, 257. AND, IN VIEW OF THE LIMITATION OF AUTHORITY TO WHICH THE ENDORSEMENT ON THE BILL REFERS, THE QUESTION OF WHETHER THE CARRIER RELIED ON ANY APPARENT AUTHORITY OF NAVAL SUPPLY DEPOT PERSONNEL TO CONSIGN THE SHIPMENT BACK TO THE SHIPPER BECOMES ACADEMIC.

ON THE BASIS OF THE PRESENT RECORD WE MUST THEREFORE CONCLUDE THAT THE SHIPMENT WAS NEITHER AUTHORIZED NOR DIRECTED BY AN AGENT OF THE UNITED STATES. SINCE THE GOVERNMENT INCURRED NO LIABILITY TO THE CARRIER AS A RESULT OF SUCH UNAUTHORIZED SHIPMENT, IT FOLLOWS THAT THE ADDITIONAL EVIDENCE YOU HAVE SUBMITTED MAY NOT BE CONSTRUED AS A LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN AUTHORIZING PAYMENT OF YOUR CLAIM FOR THE EXCESS FREIGHT CHARGES YOU HAVE PAID TO THE CARRIER AS A RESULT OF SUCH SHIPMENT.