B-156129, JUN. 13, 1966

B-156129: Jun 13, 1966

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TO DENNING AND WOHLSTETTER: REFERENCE IS MADE TO YOUR LETTER OF MARCH 17. THE LATTER COMPANY APPARENTLY IS A SUBSIDIARY OF VON DER AHE VAN LINES. THE SHIPMENT WAS TENDERED TO ADVANCE CONTAINER TRANSIT'S ORIGIN AGENT FOR CARRIAGE IN ACCORDANCE WITH REVISION NO. 49 TO ADVANCE CONTAINER TRANSIT'S FREIGHT TARIFF NO. 1. THE GOVERNMENT BILL OF LADING AUTHORIZING THE SHIPMENT SHOWS ON ITS FACE THAT IT WAS SURRENDERED TO THE FORWARDER'S AGENT AT ORIGIN. THE SHIPMENT WAS DELIVERED AT DESTINATION BY UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY. THERE IS NO INDICATION IN THE COMMERCIAL BILL OF LADING OR IN ANY OF THE PAPERS RECEIVED WITH UNIVERSAL'S BILLING FOR TRANSPORTATION CHARGES THAT ALASKA TRUCK TRANSPORT WAS IN ANY WAY ASSOCIATED WITH ADVANCE CONTAINER TRANSIT.

B-156129, JUN. 13, 1966

TO DENNING AND WOHLSTETTER:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1966, IN WHICH YOU REQUEST RECONSIDERATION OF THE DECISION DATED AUGUST 17, 1965, B 156129, WHICH SUSTAINED IN PART THE SETTLEMENT DISALLOWING A CLAIM OF VON DER AHE VAN LINES FOR $549.64 FOR SERVICES PERFORMED UNDER A GOVERNMENT BILL OF LADING ISSUED TO ADVANCE CONTAINER TRANSIT. THE LATTER COMPANY APPARENTLY IS A SUBSIDIARY OF VON DER AHE VAN LINES.

THE SERVICES IN QUESTION CONSISTED OF THE TRANSPORTATION OF 1,510 POUNDS OF HOUSEHOLD GOODS FROM FORT WAINWRIGHT, ALASKA, TO WAVERLY, IOWA. THE SHIPMENT WAS TENDERED TO ADVANCE CONTAINER TRANSIT'S ORIGIN AGENT FOR CARRIAGE IN ACCORDANCE WITH REVISION NO. 49 TO ADVANCE CONTAINER TRANSIT'S FREIGHT TARIFF NO. 1, EFFECTIVE AUGUST 15, 1961, AND THE GOVERNMENT BILL OF LADING AUTHORIZING THE SHIPMENT SHOWS ON ITS FACE THAT IT WAS SURRENDERED TO THE FORWARDER'S AGENT AT ORIGIN. THE SHIPMENT WAS DELIVERED AT DESTINATION BY UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY. THAT COMPANY, A REGULATED FORWARDER SUBJECT TO THE PROVISIONS OF PART IV OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 1001 ET SEQ., ACCEPTED THE SUBJECT SHIPMENT AT SEATTLE, WASHINGTON, FROM ALASKA TRUCK TRANSPORT, INC., AS SHIPPER. THERE IS NO INDICATION IN THE COMMERCIAL BILL OF LADING OR IN ANY OF THE PAPERS RECEIVED WITH UNIVERSAL'S BILLING FOR TRANSPORTATION CHARGES THAT ALASKA TRUCK TRANSPORT WAS IN ANY WAY ASSOCIATED WITH ADVANCE CONTAINER TRANSIT, VON DER AHE, OR ARCTIC MOVING COMPANY.

UNDER ADVANCE CONTAINER TRANSIT'S RATE TENDER, THE TOTAL CHARGES FOR THE TRANSPORTATION, INCLUDING STORAGE-IN-TRANSIT AND ACCESSORIAL SERVICES, WERE $549.64. THIS SUM HAS BEEN PAID TO UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY ($508.18) AND VON DER AHE VAN LINES ($41.46). THE RECORD INDICATES THAT NEITHER VON DER AHE VAN LINES, INC., NOR ADVANCE CONTAINER TRANSIT, INC., MADE ANY PAYMENT TO UNIVERSAL, ALTHOUGH VON DER AHE VAN LINES, INC., IS SHOWN TO HAVE PAID ARCTIC MOVING COMPANY $197.91, OF WHICH $182.71 WAS FOR ORIGIN SERVICES AND $15.20 WAS FOR 19 PADS. IS YOUR CONTENTION THAT THE PAYMENT MADE BY THE GOVERNMENT TO UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY WAS ERRONEOUS BECAUSE THAT FORWARDER WAS NOT IN PRIVITY WITH THE CONTRACT OF CARRIAGE AND WAS NOT AUTHORIZED BY ADVANCE CONTAINER TRANSIT TO RECEIVE PAYMENT FOR THE SERVICES IN QUESTION.

ALTHOUGH THE RECORD IN THIS MATTER CONTAINS JUSTIFICATION FOR DEALING WITH UNIVERSAL CARLOADING AS THE PARTY ENTITLED TO PAYMENT OF THE TRANSPORTATION CHARGES, THERE APPARENTLY WAS NO PRIVITY OF CONTRACT BETWEEN THE UNITED STATES AND UNIVERSAL CARLOADING AND THE LATTER HAD NO RIGHT TO PAYMENT ON THAT GROUND. WE, THEREFORE, WOULD AGREE WITH THE GENERAL PROPOSITION THAT ORDINARILY, ABSENT ANY SPECIAL CIRCUMSTANCES, WHEN THE GOVERNMENT OFFERS A SHIPMENT MOVING BY THE DOOR TO-DOOR CONTAINER METHOD TO AN EXEMPT FREIGHT FORWARDER OR AN ORGANIZATION OTHERWISE OPERATING AS A FORWARDER AND ASSUMING RESPONSIBILITY FOR THE ENTIRE SHIPMENT, PAYMENT SHOULD BE MADE ONLY TO THE PARTY WITH WHICH THE GOVERNMENT MADE THE CONTRACT, THE FORWARDER SHOWN ON THE GOVERNMENT BILL OF LADING AS ACCEPTING A SHIPMENT FOR TRANSPORTATION TO THE INDICATED DESTINATION.

IN OUR OPINION, HOWEVER, THE FACTS AND CIRCUMSTANCES OF THIS CASE ARE SUCH AS TO JUSTIFY AN INFERENCE OF APPARENT AUTHORITY ON THE PART OF UNIVERSAL CARLOADING TO BILL FOR THE CHARGES. IT SEEMS CLEAR THAT UNIVERSAL CARLOADING WAS ADVANCE CONTAINER TRANSIT'S AGENT FOR DELIVERY. IF IT WERE NOT, THEN IT COULD NOT BE SAID THAT ADVANCE CONTAINER TRANSIT PERFORMED THE CONTRACT AND THE PAYMENT TO UNIVERSAL CARLOADING WOULD HAVE BEEN PROPER BECAUSE THE GOVERNMENT RECEIVED THE BENEFIT OF THAT FORWARDER'S SERVICES. THEREFORE, ONE ELEMENT OF APPARENT AUTHORITY WAS PRESENT: THERE WAS AN AGENCY RELATIONSHIP ON THE PART OF UNIVERSAL CARLOADING TO ADVANCE CONTAINER TRANSIT.

IN ADDITION, UNIVERSAL CARLOADING HAD POSSESSION OF THE ONE DOCUMENT WHICH WOULD ENABLE EITHER IT OR ITS PRINCIPAL TO BILL FOR THE CHARGES; NAMELY, THE ORIGINAL GOVERNMENT BILL OF LADING. IF UNIVERSAL CARLOADING WERE NOT IN FACT AUTHORIZED BY ITS PRINCIPAL TO BILL FOR THE CHARGES, THEN ADVANCE CONTAINER TRANSIT WAS NEGLIGENT IN ALLOWING UNIVERSAL CARLOADING TO OBTAIN POSSESSION OF THE BILL OF LADING AND THEREBY REPRESENT THAT IT WAS AUTHORIZED TO BILL FOR THE SERVICES. FINALLY, IN RELIANCE UPON THE REPRESENTATION MADE BY UNIVERSAL CARLOADING, SUPPORTED BY THE DOCUMENTARY INDICIA OF APPARENT AUTHORITY, THE DISBURSING OFFICER PAID OUT GOVERNMENT FUNDS FOR THE SERVICES IN QUESTION. IN OUR OPINION, THIS PAYMENT WAS EFFECTIVE TO DISCHARGE THE GOVERNMENT'S OBLIGATION ON THE CONTRACT TO THE EXTENT OF THE AMOUNT PAID.

ORDINARILY THE PAYMENT IN QUESTION WOULD NOT HAVE BEEN MADE BECAUSE THE DISBURSING OFFICERS USUALLY DO NOT OBSERVE THE RIGHT OF A CORPORATE AGENT TO BILL IN ITS OWN NAME FOR SERVICES PERFORMED UNDER A CONTRACT MADE WITH ITS PRINCIPAL. THIS IS BECAUSE OF THE PROHIBITIONS CONTAINED IN THE SO- CALLED ANTI-ASSIGNMENT STATUTES, 31 U.S.C. 203 AND 41 U.S.C. 15. IT IS GENERALLY RECOGNIZED, HOWEVER, THAT THE PROTECTION OF THE ANTI-ASSIGNMENT STATUTES CAN BE WAIVED AND THAT SUCH WAIVER CANNOT BE MADE THE BASIS FOR IMPEACHMENT BY THE PRINCIPAL OF THE SETTLEMENT MADE WITH HIS AGENT. BAILEY V. UNITED STATES, 109 U.S. 432 (1883); LOPEZ V. UNITED STATES, 24 CT.CL. 84 (1889); BANK OF CALIFORNIA, NATIONAL ASS N. V. COMMISSIONER OF INTERNAL REVENUE, 9TH CIR., 133 F.2D 428 (1943).

AS STATED ABOVE, THE TOTAL AMOUNT DUE FOR THE SERVICES IN QUESTION HAS BEEN PAID TO VON DER AHE VAN LINES AND TO UNIVERSAL CARLOADING AND DISTRIBUTING COMPANY. FOR THE REASONS STATED, THE CONCLUSION REACHED IN THE PRIOR DECISION IS REAFFIRMED, AND NO ADDITIONAL CHARGES ARE PAYABLE FOR THE TRANSPORTATION OF THE SHIPMENT IN QUESTION.

Oct 29, 2020

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Oct 27, 2020

  • Silver Investments, Inc.
    We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.
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