B-100131, FEBRUARY 15, 1951, 30 COMP. GEN. 348

B-100131, FEBRUARY 15, 1951, 30 COMP. GEN. 348

TRANSPORTATION - HOUSEHOLD EFFECTS - FREIGHT CHARGES - DELIVERY AT DESTINATION REQUIREMENT A COMMON CARRIER IS NOT ENTITLED TO PAYMENT OF FREIGHT FOR A SHIPMENT OF HOUSEHOLD GOODS UNLESS IT COMPLETELY PERFORMS ITS CONTRACT BY DELIVERING THE GOODS TO THE CONSIGNEE AT DESTINATION, AND THEREFORE A SETTLEMENT BY AN INSURANCE COMPANY WITH AN ARMY OFFICER WHOSE HOUSEHOLD GOODS WERE DESTROYED BY FIRE WHILE EN ROUTE FROM ONE STATION TO ANOTHER DID NOT ALTER OR CHANGE THE CARRIER'S OBLIGATION TO HAUL AND DELIVER THE GOODS IN ACCORDANCE WITH THE CONTRACT OF CARRIAGE SO AS TO MAKE THE UNITED STATES LIABLE FOR THE FREIGHT CHARGES.

ACTING COMPTROLLER GENERAL YATES TO BURNHAM'S VAN SERVICE, FEBRUARY 15, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21, 1950, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 10, 1950, WHICH DISALLOWED YOUR CLAIM FOR $163.36, REPRESENTING AN AMOUNT ALLEGED TO BE DUE FOR SERVICES RENDERED TO THE DEPARTMENT OF THE ARMY IN CONNECTION WITH THE MOVING OF HOUSEHOLD GOODS BELONGING TO LIEUTENANT COLONEL JOHN E. WALKER, FROM FLORENCE, ALABAMA, TO JACKSONVILLE, FLORIDA, PURSUANT TO CONTRACT NO. W-08-163-TC- 37, DATED APRIL 1, 1947.

THE RECORD INDICATES THAT PURSUANT TO CONDITION NO. 2 OF THE ABOVE MENTIONED CONTRACT YOU AGREED TO PACK AND TRANSPORT ALL HOUSEHOLD GOODS, EFFECTS, AND OTHER PROPERTY TO BE MOVED THEREUNDER WITHOUT DELAY, AND TO DELIVER SAID GOODS TO THE DESTINATION IN THE SAME CONDITION AS DELIVERED TO YOU, UNLESS PREVENTED BY ACTS OF GOD, THE PUBLIC ENEMY, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, OR ACTS OF THE FEDERAL GOVERNMENT. AFTER LOADING THE SHIPMENT INVOLVED UPON YOUR VAN, AND WHILE EN ROUTE, IT APPEARS THAT THE HOUSEHOLD EFFECTS BELONGING TO COLONEL WALKER WERE COMPLETELY DESTROYED BY FIRE THUS PRECLUDING DELIVERY THEREOF TO THE DESTINATION, AS PROVIDED IN THE CONTRACT. IT ALSO APPEARS THAT COLONEL WALKER WAS PAID $975 BY THE FIREMAN'S FUND INSURANCE COMPANY, THE RECEIPT OF WHICH HE ADVISED YOU EXTINGUISHED YOUR LIABILITY TO HIM. YOUR LETTER OF NOVEMBER 21, 1950, YOU STATE THAT WHILE COLONEL WALKER'S GOODS WERE DESTROYED IN THE FIRE AND DELIVERY IN JACKSONVILLE COULD NOT BE EFFECTED, IT IS YOUR CONTENTION THAT YOU ARE ENTITLED TO COMPENSATION FOR YOUR SERVICES IN CONNECTION WITH THE SHIPMENT, AS YOU DELIVERED TO COLONEL WALKER IN JACKSONVILLE REIMBURSEMENT FOR HIS LOSS IN LIEU OF DELIVERY OF HIS GOODS. FURTHERMORE, YOU BASE YOUR CLAIM ON THE PREMISE THAT SUCH REIMBURSEMENT CONSTITUTES FULFILLMENT OF THE CONTRACT.

AT COMMON LAW, A CARRIER DOES NOT EARN AND IS NOT ENTITLED TO FREIGHT UNLESS IT COMPLETELY PERFORMS ITS CONTRACT BY DELIVERING THE GOODS TO THE CONSIGNEE AT DESTINATION. IN THIS CONNECTION, SEE CHRISTIE, ET AL. V. DAVIS COAL AND COKE CO., 95 F. 837. FURTHERMORE, THE SAME RULE IS BROUGHT FORWARD IN SECTION 3648, REVISED STATUTES (31 U.S.C. 529), WHICH IN PERTINENT PART READS AS OLLOWS:

NO ADVANCE OF PUBLIC MONEY SHALL BE MADE IN ANY CASE WHATEVER. AND IN ALL CASES OF CONTRACTS FOR THE PERFORMANCE OF ANY SERVICE, OR THE DELIVERY OF ARTICLES OF ANY DESCRIPTION, FOR THE USE OF THE UNITED STATES, PAYMENT SHALL NOT EXCEED THE VALUE OF THE SERVICE RENDERED, OR OF THE ARTICLES DELIVERED PREVIOUS TO SUCH PAYMENT. * * *

WITH RESPECT TO THE FOREGOING SECTION, THE ATTORNEY GENERAL OF THE UNITED STATES, IN 10 OP. ATTY. GEN. 288, STATED AS FOLLOWS.

IT IS THE PLAIN MEANING OF THIS LAW, THAT NO MONEY SHALL BE ADVANCED TO CONTRACTORS; THAT IS, THAT NO MONEY SHALL BE PAID TO THEM ON ACCOUNT OF THEIR CONTRACTS BEFORE THE ACTUAL PERFORMANCES OF THE SERVICE OR THE DELIVERY OF THE ARTICLES STIPULATED FOR. AND THIS NOT ONLY FORBIDS HIM ALSO TO CONTRACT FOR SUCH PAYMENT * * *. (ITALICS SUPPLIED.)

AND, FINALLY, THE COURT IN THE CASE OF DESOLA V. POMARES, 119 F. 373, HELD THAT IT WAS A SETTLED RULE OF COMMERCIAL LAW THAT FREIGHT PREPAID, BUT WHICH IS NOT EARNED BY THE DELIVERY OF THE GOODS, IS TO BE REFUNDED FOR THE REASON THAT WITHOUT DELIVERY THE FREIGHT IS NOT EARNED.

YOU CONTEND THAT SINCE YOUR INSURANCE COMPANY INDEMNIFIED COLONEL WALKER FOR HIS GOODS WHICH WERE DESTROYED IN THE FIRE THERE WAS SUCH A CONSTRUCTIVE DELIVERY OF THE GOODS AS TO CONSTITUTE PERFORMANCE SUCH AS TO ENTITLE YOU TO THE FREIGHT CHARGES SPECIFIED IN THE CONTRACT.

UNDER THE CIRCUMSTANCES OF THE SHIPMENT HERE INVOLVED, YOUR COMPANY WAS OPERATING AS A COMMON CARRIER AND, THEREFORE, WAS RESPONSIBLE FOR THE SAFE DELIVERY AT DESTINATION OF THE GOODS PLACED IN YOUR CHARGE FOR HAULING AND DELIVERY. THE FACT THAT YOUR COMPANY FOR ITS OWN PROTECTION TOOK OUT INSURANCE ON THE GOODS IS A MATTER IN WHICH THE GOVERNMENT IS NOT CONCERNED, AND DOES NOT ALTER OR CHANGE IN ANY WAY THE CONTRACT OF YOUR COMPANY TO HAUL THE HOUSEHOLD GOODS IN QUESTION AND TO DELIVER THEM IN JACKSONVILLE. THE CONTRACT IN THIS CASE WAS AN ENTIRE AND INDIVISIBLE CONTRACT UNDER WHICH NO PART OF THE CONSIDERATION COULD BE EARNED UNLESS AND UNTIL THE SERVICES REQUIRED THEREUNDER WERE COMPLETELY PERFORMED. SEE 6 COMP. GEN. 698, AND BURN LINE V. U.S. AND A.S.S. COMPANY, 162 F. 298.

THEREFORE, IN VIEW OF THE ABOVE, AND SINCE THERE WAS NO DELIVERY OF THE HOUSEHOLD GOODS IN ACCORDANCE WITH THE CONTRACT OF CARRIAGE IN THIS CASE, THERE IS NO LIABILITY UPON THE PART OF THE UNITED STATES FOR THE FREIGHT CHARGES. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 10, 1950, IS SUSTAINED.