B-157133, AUG. 2, 1965

B-157133, AUG. 2, 1965

TO MAJOR GEORGE F. BOYLE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1965, REQUESTING FURTHER CONSIDERATION OF THE SETTLEMENT OF JUNE 10, 1965, WHICH DISALLOWED YOUR CLAIM FOR NONTEMPORARY STORAGE OF YOUR HOUSEHOLD EFFECTS FOR THE PERIOD DECEMBER 12, 1962, TO AUGUST 5, 1964.

BY PARAGRAPH 3, SPECIAL ORDER NO. A-208, DATED MARCH 9, 1962, YOU WERE TRANSFERRED FROM DUTY AT PLATTSBURGH AIR FORCE BASE, NEW YORK, TO DUTY AT APO 677. THE ORDERS REQUIRED YOU TO REPORT AT MCGUIRE AIR FORCE BASE, NEW JERSEY, NOT EARLIER THAN 0800 ON MAY 4, 1962, AND NOT LATER THAN 0600 ON MAY 5, 1962, FOR AIR TRANSPORTATION. THE ORDERS STATED THAT CONCURRENT TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED. PRIOR TO THE REQUIRED DATE OF YOUR DEPARTURE FROM MCGUIRE AIR FORCE BASE, HOWEVER, THOSE ORDERS WERE, IN EFFECT, AMENDED BY SPECIAL ORDER T-457, DATED MAY 2, 1962, TO AUTHORIZE TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION NOT EARLIER THAN JUNE 21, 1962, NOR LATER THAN JULY 8, 1962. ON JUNE 4, 1962, YOUR WIFE, ACTING IN YOUR BEHALF, EXECUTED AN APPLICATION FOR SHIPMENT OF YOUR HOUSEHOLD EFFECTS FROM PLATTSBURGH AIR FORCE BASE, NEW YORK, TO FREEHOLD, NEW JERSEY. THE APPLICATION INCLUDED THE STATEMENT THAT YOU HAD BEEN ADVISED OF YOUR SHIPPING ENTITLEMENTS. ON JUNE 13, 1962, THE EFFECTS WERE SHIPPED ON A GOVERNMENT BILL OF LADING DATED JUNE 6, 1962, AND WERE PLACED IN TEMPORARY STORAGE UPON ARRIVAL AT FREEHOLD, NEW JERSEY. TEMPORARY STORAGE IN TRANSIT WAS AUTHORIZED FOR 90 DAYS. AT THE EXPIRATION OF THAT PERIOD YOU WERE GRANTED AN ADDITIONAL 90 DAYS OF STORAGE, AT GOVERNMENT EXPENSE, EXPIRING DECEMBER 11, 1962. THE RECORD SHOWS THAT YOU HAD MADE A DOWN PAYMENT ON A HOME IN FREEHOLD, NEW JERSEY, AND APPARENTLY INTENDED THE HOUSEHOLD EFFECTS TO BE PLACED IN THAT HOME. HOWEVER, YOUR APPLICATION FOR A MORTGAGE WAS DECLINED DUE TO AN FHA REGULATION WHICH DID NOT PERMIT ABSENTEE OWNERSHIP. IN NOVEMBER 1962, YOU APPLIED FOR CONVERSION OF THE STORAGE TO NONTEMPORARY STORAGE, WHICH APPLICATION WAS DENIED. THEREFORE, AT THE EXPIRATION OF TEMPORARY STORAGE IN TRANSIT YOUR EFFECTS REMAINED IN COMMERCIAL STORAGE IN FREEHOLD AT YOUR EXPENSE UNTIL AUGUST 5, 1964. YOUR CLAIM FOR REIMBURSEMENT OF THE CHARGES INCURRED WAS DISALLOWED BY THE SETTLEMENT FOR THE REASONS STATED THEREIN. SINCE YOUR CLAIM INCLUDED THE STATEMENT THAT YOU DID NOT RECEIVE PROPER INSTRUCTIONS REGARDING THE SHIPMENT AND STORAGE OF YOUR EFFECTS, THE SETTLEMENT INCLUDED THE STATEMENT THAT IT IS A WELL SETTLED RULE THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS THEREFORE, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM NEGLIGENT ACTS OF ITS OFFICERS AND EMPLOYEES.

IN YOUR PRESENT LETTER YOU SAY THE PROPERTY WAS NEITHER LOST OR DAMAGED; HOWEVER, YOU SAY THAT YOU MADE A MISTAKE IN LETTING THE HOUSEHOLD GOODS BE SHIPPED FROM THE PLATTSBURGH AREA; THAT THE SHIPMENT WAS PROPER UNDER SPECIAL ORDER NO. A-208; THAT THOSE ORDERS WERE NOT AMENDED; THAT YOU FOLLOWED ADVICE RECEIVED FROM THE TRANSPORTATION OFFICER AT GOOSE BAY, LABRADOR; THAT YOU RETURNED FROM GOOSE BAY AND MADE THE SHIPMENT YOURSELF WITHOUT ADVICE TO THE CONTRARY FROM ANYONE AT PLATTSBURGH. YOU SAY YOU WOULD BE WILLING TO REIMBURSE THE GOVERNMENT FOR THE LINE HAUL CHARGES FOR SHIPMENT FROM PLATTSBURGH TO FREEHOLD; ALSO, THE DIFFERENCE IN STORAGE CHARGES IF THE CHARGES AT FREEHOLD WERE HIGHER THAN IN THE PLATTSBURGH AREA IF YOU COULD RECEIVE REIMBURSEMENT OF THE STORAGE CHARGE SINCE YOU FEEL A MISTAKE WAS MADE.

THE PACKING, CRATING, SHIPPING AND STORAGE OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES ARE GOVERNED BY JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 406. PARAGRAPH M8253-2 (C) OF THE JOINT TRAVEL REGULATIONS (CHANGE 108, OCTOBER 1, 1961, IN EFFECT AT THE TIME HERE INVOLVED) PROVIDES THAT WHEN A MEMBER IS ORDERED TO AN OVERSEAS STATION AND TRANSPORTATION OF DEPENDENTS, SHIPMENT OF HOUSEHOLD GOODS, OR BOTH, IS PROHIBITED AT THAT TIME BUT WILL BE AUTHORIZED WITHIN 20 WEEKS, THAT PORTION OF THE AUTHORIZED WEIGHT ALLOWANCE WHICH THE MEMBER INDICATES WILL BE MOVED EVENTUALLY TO THE OVERSEAS STATION MAY BE PLACED IN STORAGE, AND THE REMAINING WEIGHT ALLOWANCE MAY BE SHIPPED FOR THE DURATION OF THE CURRENT OVERSEAS ASSIGNMENT TO SUCH LOCATION WITHIN THE UNITED STATES AS MAY BE DESIGNATED BY THE MEMBER CONCERNED OR PLACED IN STORAGE UNDER THE PROVISIONS OF PARAGRAPH M8101. PARAGRAPH M8101-2 OF THE REGULATIONS (SAME CHANGE) PROVIDES THAT NONTEMPORARY STORAGE WILL BE IN THE NEAREST APPROVED COMMERCIAL FACILITY TO THE PLACE WHERE THE HOUSEHOLD GOODS ARE LOCATED OR IN THE NEAREST AVAILABLE GOVERNMENT STORAGE FACILITY WHICHEVER IS MORE ECONOMICAL TO THE GOVERNMENT AS DETERMINED BY THE TRANSPORTATION OFFICER. THUS, ON THE BASIS OF THE ORDERS OF MAY 2, 1962, WHICH AUTHORIZED TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION WITHIN 20 WEEKS, THE EFFECTS WHICH YOU DID NOT INTEND FOR OVERSEAS SHIPMENT COULD HAVE BEEN SHIPPED FROM PLATTSBURGH (1) TO NONTEMPORARY STORAGE IN THE NEAREST APPROVED COMMERCIAL FACILITY OR NEAREST AVAILABLE GOVERNMENT FACILITY, WHICHEVER WAS MORE ECONOMICAL AS DETERMINED BY THE TRANSPORTATION OFFICER, OR (2) TO A DESIGNATED LOCATION. THE RECORD SHOWS THAT YOU MADE 2 SHIPMENTS OF HOLD BAGGAGE WEIGHING 320 POUNDS AND 725 POUNDS, RESPECTIVELY, TO YOUR OVERSEAS STATION AND SHIPPED THE REMAINDER OF YOUR EFFECTS TO A DESIGNATED PLACE, FREEHOLD, NEW JERSEY. NO FURTHER SHIPMENT OF THE EFFECTS WHICH YOU SHIPPED WAS AUTHORIZED UNTIL FURTHER CHANGE OF STATION ORDERS WERE ISSUED, AND THERE IS NO BASIS UNDER THE LAW AND REGULATIONS WHEREBY THE SHIPMENTS AS MADE MAY NOW BE ADJUSTED IN THE MANNER YOU SUGGEST TO PERMIT PAYMENT OF ANY PORTION OF THE STORAGE CHARGES INCURRED SUBSEQUENT TO DECEMBER 11, 1962, WHEN YOUR TEMPORARY STORAGE ENTITLEMENT EXPIRED.

THE RULE REFERRED TO IN THE SETTLEMENT DID NOT RELATE TO LOSS OR DAMAGE OF HOUSEHOLD EFFECTS BUT TO ANY MONETARY LOSS YOU MAY HAVE INCURRED BY REASON OF ERRONEOUS ADVICE THAT MAY HAVE BEEN FURNISHED YOU BY GOVERNMENT OFFICIALS AS TO YOUR SHIPPING RIGHTS. THAT RULE HAS FOUND SUPPORT IN THE COURTS. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515. HOWEVER, THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE THAT THE SHIPMENT WAS MADE TO FREEHOLD BECAUSE OF ERRONEOUS ADVICE BY AIR FORCE PERSONNEL. ON THE CONTRARY, IT IS ADMINISTRATIVELY REPORTED THAT INFORMATION FROM THE TRANSPORTATION OFFICE AT PLATTSBURGH, NEW YORK, INDICATES THAT YOU WERE COUNSELED PROPERLY AS TO YOUR RIGHTS REGARDING THE DISPOSITION TO BE MADE OF YOUR HOUSEHOLD EFFECTS. YOUR OWN STATEMENTS INDICATE THAT THE SHIPMENT TO FREEHOLD WAS REQUESTED WITH THE INTENTION OF HAVING THE GOODS PLACED IN THE RESIDENCE THERE WHICH YOU EXPECTED TO PURCHASE AND ON WHICH YOU HAD MADE A PAYMENT. IT SEEMS CLEAR THAT YOU EXPECTED THE HOUSE WOULD BE AVAILABLE BEFORE THE EXPIRATION OF THE AUTHORIZED PERIOD OF TEMPORARY STORAGE IN TRANSIT AND THAT THE NEED FOR NONTEMPORARY STORAGE AROSE ONLY WHEN YOU WERE INFORMED THAT YOUR APPLICATION FOR A MORTGAGE WOULD NOT BE APPROVED. THE REGULATIONS MAKE NO PROVISION IN SUCH CIRCUMSTANCES FOR A MEMBER WHO HAS ELECTED TO HAVE HIS EFFECTS SHIPPED BY THE GOVERNMENT TO A DESIGNATED PLACE TO LATER CHANGE HIS ELECTION TO HAVE THE GOODS PLACED IN NONTEMPORARY STORAGE AT GOVERNMENT EXPENSE WHEN IT DEVELOPS AFTER THE SHIPMENT THAT SUCH STORAGE WOULD BE TO HIS ADVANTAGE.

SINCE THERE IS NO BASIS FOR THE ALLOWANCE OF ANY PORTION OF YOUR CLAIM THE SETTLEMENT OF JUNE 10, 1965, IS SUSTAINED.