A-93222, MARCH 25, 1938, 17 COMP. GEN. 780

A-93222, MARCH 25, 1938, 17 COMP. GEN. 780

PROPERTY - PRIVATE - DAMAGES - MILITARY SERVICE WHERE EVIDENCE FURNISHED CONCERNING THE ALLEGED FAULTY PACKING OF AN ARMY OFFICER'S HOUSEHOLD EFFECTS ON CHANGE OF STATION IS SUCH AS TO SUGGEST THAT THE DAMAGE MAY HAVE OCCURRED DUE TO A CONDITION RESULTING FROM STORAGE, AND CONTRADICTS THE FINDING OF THE ARMY BOARD OF OFFICERS "THAT THE DAMAGE WAS DUE TO FAULTY PACKING AND CRATING AND NOT DUE TO THE CARRIER," NO REIMBURSEMENT FOR THE DAMAGE IS AUTHORIZED UNDER THE ACT OF MARCH 4, 1921, 41 STAT. 1436, THERE HAVING BEEN NO CLAIM FOR REIMBURSEMENT FILED BY THE OFFICER AGAINST THE COMMON CARRIER INVOLVED IN THE TRANSPORTATION OF THE GOODS AS REQUIRED UNDER THE ACT, AND SAID ACT NOT PROVIDING FOR DAMAGES RESULTING FROM STORAGE.

ACTING COMPTROLLER GENERAL ELLIOTT TO LT. COL. E. C. MORTON, UNITED STATES ARMY, MARCH 25, 1938:

THERE HAS BEEN RECEIVED YOUR REQUEST OF MARCH 4, 1938, FOR DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH STATED IN FAVOR OF COL. JOHN R. KELLY, INFANTRY, UNITED STATES ARMY, IN THE AMOUNT OF $23.50 COVERING HIS CLAIM FOR REIMBURSEMENT UNDER THE ACT OF MARCH 4, 1921, 41 STAT. 1436, FOR DAMAGES TO HIS PERSONAL PROPERTY.

SPECIAL ORDERS NO. 247/3, WAR DEPARTMENT, DATED OCTOBER 17, 1936, RELIEVED COLONEL KELLY FROM DUTY AT FORT JAY, N.Y., AND ASSIGNED HIM FOR DUTY AT SYRACUSE, N.Y. HE TURNED HIS HOUSEHOLD GOODS OVER TO THE QUARTERMASTER ON OR ABOUT NOVEMBER 1, 1936, FOR PACKING AND CRATING, AND UPON COMPLETION THEREOF, THEY WERE TRANSFERRED BY GOVERNMENT BOAT TO NEW YORK, PORT OF EMBARKATION, WHERE THEY WERE PLACED IN STORAGE FROM NOVEMBER 27, 1936, TO MARCH 26, 1937. ON THE LATTER DATE THEY WERE LOADED IN A CAR AND MOVED BY RAIL TO SYRACUSE, WHERE THEY WERE RECEIVED APRIL 3, 1937, TRANSFERRED BY COMMERCIAL VAN TO HIS QUARTERS AND UNPACKED. THE EVIDENCE SHOWS THAT ONE CRATE WAS DAMAGED WHEN RECEIVED, BUT NO DAMAGE OCCURRED TO THE CONTENTS OF THIS CRATE. THE OTHER CRATES WERE NOT DAMAGED, BUT CONCEALED DAMAGE TO THE CONTENTS WAS DISCOVERED UPON UNPACKING. IT IS ALLEGED THAT THE DAMAGED ARTICLES "HAD WORKED LOOSE" IN THE CRATES AND THAT THERE WAS ,CONSIDERABLE MOVEMENT OF THE CONTENTS OF THE BARREL," CONTAINING PLATED SILVERWARE, WHICH WAS DAMAGED.

THE BOARD OF OFFICERS CONVENED AT SYRACUSE FOUND "THAT THE EVIDENCE PRESENTED SHOWED THAT THE DAMAGE WAS DUE TO FAULTY PACKING AND CRATING AND NOTE DUE TO THE COMMON CARRIER.' NO CLAIM WAS FILED BY COLONEL KELLY AGAINST THE CARRIER FOR DAMAGES IN TRANSIT.

AFFIDAVITS OF THE PACKERS ARE SUBMITTED DENYING FAULTY PACKING AND CRATING, AS FOLLOWS:

THAT HE IS EMPLOYED AS FOREMAN OF UTILITIES OFFICE, FORT JAY, GOVERNORS ISLAND, NEW YORK. IN CONNECTION WITH THE SHIPMENT OF THE HOUSEHOLD GOODS OF COLONEL JOHN R. KELLY, THIS SHIPMENT WAS PACKED AND CRATED BY EXPERIENCED CIVILIAN PACKERS IN ACCORDANCE WITH THE STANDARDIZED METHOD OF PACKING, AND WITH CARE EXERCISED TO PROTECT THIS PROPERTY FROM DAMAGE.

SILVER PLATE, CHINA, AND GLASSWARE WERE PACKED BY MR. O-SHEA WHO WAS ESPECIALLY REQUESTED BY MRS. KELLY FOR THIS WORK.

ALL PACKAGES LEFT THIS POST IN GOOD CONDITION.

(SIGNED) MICHAEL REILLY, SEPTEMBER 16, 1937.

THAT HE PACKED THE HOUSEHOLD GOODS OF COLONEL JOHN R. KELLY, INF.,SILVER PLATE, GLASS AND CHINA WARE, IN BARRELS. THAT HE USED THE USUAL CARE IN PACKING ALL ITEMS AND CAN SEE NO REASON WHY THE SILVER PLATE SHOULD BE DAMAGED UNLESS THROUGH EXCEPTIONALLY ROUGH HANDLING.

(SIGNED) PATRICK J. O-SHEA, OCTOBER 13, 1937.

THIS EVIDENCE CONTRADICTS THE FINDING OF FAULTY PACKING. SUCH FINDING WOULD APPEAR TO BE BASED ON THE STATED LOOSE CONDITION OF THE ARTICLES IN THE CRATES. IT WOULD SEEM THEREFORE THAT WHILE THESE EFFECTS WERE PROPERLY PACKED FOR THE SHORT RAIL HAUL, THE PACKING MATERIAL LOST SOME OF ITS RESILIENCY UNDER THE WEIGHT OF THE ARTICLES WHILE IN PROLONGED STORAGE CAUSING THE ARTICLES TO BECOME LOOSE IN THE CRATES AND BARRELS, AND SUCH CONDITION INCREASED THE POSSIBILITY OF DAMAGE IN TRANSIT. THE FACT THAT ONE CRATE WAS RECEIVED FROM THE CARRIER IN A DAMAGED CONDITION WOULD TEND TO INDICATE ROUGH HANDLING BY RAIL, AND CONCEALED DAMAGES WHILE IN THE CUSTODY OF THE CARRIER MAY HAVE BEEN A CONSEQUENCE.

THE STATUTE PROVIDES FOR REIMBURSEMENT OVER AND ABOVE THE AMOUNT RECOVERABLE FROM THE CARRIER AND ARMY REGULATIONS 35-7100, PARAGRAPH 2B (2) (F), REQUIRES, WHERE TRANSPORTATION BY COMMON CARRIER IS INVOLVED, THAT THE CLAIMANT SHOULD SUBMIT EVIDENCE SHOWING HE HAS MADE CLAIM ON THE CARRIER FOR REIMBURSEMENT. CLAIMANT NOT HAVING MADE CLAIM AGAINST THE CARRIER FOR THE ALLEGED DAMAGES IN TRANSIT TO HIS HOUSEHOLD GOODS, IS NOT ENTITLED UNDER THE STATUTE TO REIMBURSEMENT FROM THE UNITED STATES. FURTHERMORE, IT APPEARS THAT THE DAMAGES MAY HAVE OCCURRED DUE TO A CONDITION RESULTING FROM STORAGE, AND NOT WITHIN THE PROVISIONS OF THE STATUTE. YOU ARE ADVISED THAT PAYMENT IS NOT AUTHORIZED ON THE VOUCHER.