B-132732, APR. 1, 1958

B-132732, APR. 1, 1958

TO MR. WILLIAM B. KIMBALL, JR.:

WE REFER TO YOUR LETTERS OF JANUARY 31, 1958, AND FEBRUARY 24, 1958, CONCERNING THE CLAIM OF THE UNITED STATES AGAINST YOU FOR THE EXCESS COST OF TRANSPORTING YOUR HOUSEHOLD GOODS AND EFFECTS BETWEEN SEATTLE,WASHINGTON, AND JUNEAU, ALASKA.

THE EXCESS TRANSPORTATION CHARGES WERE INCURRED INCIDENT TO YOUR EMPLOYMENT FOR DUTY IN ALASKA, WITH THE DEPARTMENT OF THE INTERIOR, ALASKA NATIVE SERVICE, AND YOUR RETURN TO THE UNITED STATES AT THE TIME OF SEPARATION FROM THE SERVICE IN 1954. THE CASE WAS FORWARDED TO OUR OFFICE FOR COLLECTION OF THE EXCESS COSTS BY LETTER OF FEBRUARY 8, 1957, FROM THE DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS.

CONCERNING THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS AND EFFECTS IN 1951 FROM MERCER ISLAND, WASHINGTON, TO JUNEAU, ALASKA, THE RECORD SHOWS THAT THE CITY TRANSFER AND STORAGE CO. OF SEATTLE WAS PAID $510.30, COVERING PACKING, CRATING AND DRAYAGE OF 10,997 POUNDS OF YOUR GOODS AND EFFECTS FROM MERCER ISLAND, WASHINGTON, TO THE ALASKA STEAMSHIP COMPANY'S DOCKS IN SEATTLE. MARINE SHIPMENT OF THESE GOODS TO JUNEAU WAS MADE IN TWO LOTS. ONE WAS SHIPPED IN JUNE 1951 ON GOVERNMENT BILL OF LADING TPS-1398448, COVERING FIVE CRATES WEIGHING 702 POUNDS AND MEASURING 43-4 CUBIC FEET. THE MARINE CARRIER'S CHARGE FOR THIS TRANSPORTATION WAS $19.26. REFRESH YOUR RECOLLECTION, THE SHIPMENT CONSISTED OF ONE CHEST OF HOUSEHOLD GOODS AND FOUR TRUNKS. THE WEIGHT OF THIS LOT, 702 POUNDS, REPRESENTS THE DIFFERENCE BETWEEN THE TOTAL WEIGHT OF 10,997 POUNDS HANDLED BY THE CITY TRANSFER AND STORAGE CO. AND 10,295 POUNDS, THE WEIGHT OF THE SECOND LOT.

THE SECOND LOT WAS TRANSPORTED UNDER GOVERNMENT BILL OF LADING TPS 1398552, DATED JULY 13, 1951, AND COVERED 45 CRATES, WEIGHING 10,295 POUNDS AND MEASURING 988-2 CUBIC FEET. UPON ARRIVAL OF THE SECOND LOT AT THE DOCK IN JUNEAU AND BEFORE THE GOODS WERE MOVED THE CUBIC FOOT MEASUREMENT AS STATED ON THE BILL WAS QUESTIONED BY THE JUNEAU OFFICE OF THE ALASKA STEAMSHIP COMPANY AND THE ALASKA TRANSFER, AND THE GOODS WERE REMEASURED. AS A CONSEQUENCE THE ORIGINAL BILL FOR THIS LOT WAS CORRECTED TO SHOW 1,250-1 CUBIC FEET INSTEAD OF 988-2 CUBIC FEET AND THE GOVERNMENT WAS BILLED AND PAID FOR THE MARINE TRANSPORTATION OF 1,250-1 CUBIC FEET IN THE AMOUNT OF $568.79. THE WEIGHT OF THIS LOT REMAINED 10,295 POUNDS. THE AGGREGATE CHARGE TO THE GOVERNMENT FOR THE MARINE TRANSPORTATION OF THE TWO LOTS BASED ON THE REVISED MEASUREMENT OF THE SECOND LOT WAS $588.05.

SECTION 1, PUBLIC LAW 600, 60 STAT. 806, AND EXECUTIVE ORDER 9805, AS AMENDED, PROMULGATED THEREUNDER, GOVERN THE ALLOWANCE AND PAYMENT FROM GOVERNMENT FUNDS FOR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY OR WHEN ASSIGNED TO POSTS OVERSEAS. BOTH THE STATUTE AND THE EXECUTIVE ORDER (SECTION 6) LIMIT THE WEIGHT OF THE GOODS AND EFFECTS WHICH MAY BE TRANSPORTED AT GOVERNMENT EXPENSE TO 7,000 POUNDS NET OR 8,750 POUNDS GROSS. THE EQUIVALENT THEREOF IS ALLOWED WHEN THE TRANSPORTATION CHARGES ARE BASED ON CUBIC MEASUREMENT. THE PERTINENT PORTIONS OF TITLE III OF THE EXECUTIVE ORDER, AS AMENDED BY THE EXECUTIVE ORDER NO. 10196, GOVERNING THE TRANSPORTATION OF GOODS AND EFFECTS TO OR FROM POINTS OUTSIDE THE CONTINENTAL UNITED STATES, ARE AS FOLLOWS:

"SEC. 17. MAXIMUM ALLOWANCE FOR TRANSPORTATION. (A) WEIGHT. THE ACTUAL COSTS OF TRANSPORTATION OF THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF THE EMPLOYEE, NOT IN EXCESS OF 7,000 POUNDS NET, AND OF THE PACKING CRATES, BOXES, LIFT VANS, OR OTHER TEMPORARY CONTAINERS REQUIRED FOR THE SHIPMENT, SHALL BE ALLOWED IN THE CASE OF TRANSFERS TO OR FROM POINTS OUTSIDE THE CONTINENTAL UNITED STATES: * * * THUS, TRANSPORTATION SHALL BE ALLOWED AT GOVERNMENT EXPENSE FOR PROPERTY WHEN PACKED, CRATED, BOXED, OR PLACED IN LIFT VANS FOR SHIPMENT, WITHIN THE FOLLOWING MAXIMUM WEIGHTS:

TABLE

POUNDS

"EMPLOYEES HAVING IMMEDIATE FAMILY:

SHIPMENT INVOLVING TRANSPORTATION BY

VESSEL OVER ALL OR PART OF ROUTE * * * 8,750

"/B) VOLUME. WHERE CHARGES FOR TRANSPORTATION ARE COMPUTED ON A BASIS OF MEASUREMENT RATHER THAN WEIGHT CHARGES WILL BE ALLOWED REGARDLESS OF WEIGHT FOR NOT TO EXCEED 25 MEASUREMENT TONS OF FORTY CUBIC FEET EACH INCLUSIVE OF PACKING, CRATING, AND LIFT VANS * * *.

"/C) WEIGHT AND VOLUME ON SAME SHIPMENT. WHEN SHIPMENT MUST BE MADE OVER SUCH A ROUTE THAT THE TRANSPORTATION NECESSARILY INVOLVES CHARGES BASED UPON WEIGHT OVER PART OF THE DISTANCE AND UPON MEASUREMENT OVER ANOTHER PART OF THE DISTANCE, THE FOLLOWING CONDITIONS SHALL APPLY: (1) IF THE WEIGHT DOES NOT EXCEED THE LIMITATIONS PRESCRIBED IN SUBSECTION (A) PAYMENT SHALL BE ALLOWED FOR ACTUAL CHARGES OVER THE ENTIRE DISTANCE REGARDLESS OF WHETHER THE MEASUREMENT IS IN EXCESS OF THE LIMITATIONS IMPOSED BY SUBSECTION (B); (2) IF BOTH WEIGHT AND MEASUREMENT ARE IN EXCESS OF THE PRESCRIBED LIMITATIONS PAYMENT SHALL NOT BE ALLOWED FOR THE EXCESS BY WEIGHT OVER THAT PART OF THE DISTANCE WHERE CHARGES ARE BASED ON WEIGHT, OR FOR THE EXCESS BY MEASUREMENT OVER THAT PART OF THE DISTANCE WHERE CHARGES ARE BASED ON MEASUREMENT.'

IN THE SHIPMENT OF YOUR GOODS AND EFFECTS TO ALASKA PAYMENT FOR MARINE TRANSPORTATION UNDER GOVERNMENT BILLS OF LADING TPS-1398448 AND TPS- 1398552 WAS ON A CUBIC FOOT BASIS WHILE CHARGES FOR THE PACKING, CRATING, DRAYAGE, ETC., AT SEATTLE AND IN ALASKA WERE ON A TIME AND MATERIAL BASIS. SINCE THE WEIGHT OF THE SHIPMENTS IS NOT IN DISPUTE, WE SHALL, FOR THE PURPOSE OF DETERMINING EXCESS COSTS, CONSIDER THE TRANSFER AND RELATED CHARGES TO BE ON A WEIGHT BASIS. IT IS APPARENT FROM THE WORDING OF SECTION 17/C) OF THE EXECUTIVE ORDER, QUOTED ABOVE, THAT WHERE BOTH WEIGHT AND MEASUREMENT ARE IN EXCESS OF THE PRESCRIBED LIMITATION PAYMENT MAY NOT BE ALLOWED THE EMPLOYEE FOR THE EXCESS WEIGHT OR EXCESS CUBIC FOOTAGE. SINCE THE WEIGHT OF THE SHIPMENT AT SEATTLE HANDLED BY THE CITY TRANSFER AND STORAGE CO. WAS 10,997 POUNDS, WHICH WAS 2,247 POUNDS IN EXCESS OF THE ALLOWABLE MAXIMUM OF 8,750 POUNDS, AND THE CHARGE FOR PACKING, CRATING AND DRAYAGE WAS $510.30, THE EXCESS COST ASSESSABLE AGAINST YOU FOR THAT PORTION OF THE CHARGE IS 2,247/10,997 OF $510.30, OR $104.27. NO CHARGE APPEARS OF RECORD REGARDING THE DRAYAGE IN ALASKA OF THE FIRST LOT OF 702 POUNDS AND ACCORDINGLY NO AMOUNT THEREFOR IS TAKEN INTO CONSIDERATION IN COMPUTING EXCESS COSTS. HOWEVER, THE ALASKA TRANSFER DID CHARGE $325 FOR DRAYAGE, UNCRATING, UNPACKING AND PLACING ITEMS OF GOODS INCLUDED IN THE SECOND LOT OF 10,295 POUNDS. SINCE THE WEIGHT OF THE SHIPMENT WAS 10,295 POUNDS, WHICH WAS 1,545 POUNDS IN EXCESS OF THE MAXIMUM OF 8,750 POUNDS, AND THE CHARGE WAS $325, THE EXCESS COST ASSESSABLE AGAINST YOU FOR THAT PORTION OF THE TOTAL IS 1,545/10,295 OF $325, WHICH AMOUNTS TO $48.77. REGARDING THESE CHARGES AND THOSE LATER INCURRED UPON YOUR RETURN TO THE UNITED STATES, YOU PROTEST THE PRORATING OF ANY PART OF SUCH COSTS AS EXCESS CHARGES AGAINST YOU. THE CONTROLLING EXECUTIVE ORDER PROVIDES IN SECTIONS 18 AND 19 THAT THE ACTUAL COSTS OF PACKING, CRATING, UNPACKING, UNCRATING AND DRAYAGE TO AND FROM THE COMMON CARRIER NOT TO EXCEED THE AUTHORIZED WEIGHT, WHICH IN YOUR CASE IS 8,750 POUNDS GROSS, SHALL BE ALLOWED. IT IS CLEAR FROM THE PROVISIONS OF THE EXECUTIVE ORDER THAT WE MAY NOT DISREGARD THE AMOUNT INCLUDED IN THE CHARGES BECAUSE OF THE EXCESS WEIGHT OR VOLUME SHIPPED.

REGARDING THE MARINE TRANSPORTATION TO ALASKA THE MEASUREMENT OF THE TWO LOTS CANNOT BE DETERMINED IN VIEW OF THE UNRESOLVED QUESTION CONCERNING THE CORRECT MEASUREMENT OF THE SECOND LOT OF GOODS. WE SHALL, THEREFORE, ASSUME, FOR PURPOSES OF MARINE TRANSPORTATION, THAT THE SECOND LOT MEASURED 988-2 CUBIC FEET AS DETERMINED IN SEATTLE. THIS, COMBINED WITH THE FIRST LOT MEASURING 43-4 CUBIC FEET, EQUALS 1,013-6 CUBIC FEET. THE COST OF TRANSPORTING 1,031-6 CUBIC FEET OF GOODS ON AN ALASKA STEAMSHIP CO. VESSEL--- BASED ON RATES IN EFFECT AT THE TIME--- WOULD BE $468.87. SINCE THE COMBINED SHIPMENTS EXCEEDED YOUR ALLOWANCE OF 1,000 CUBIC FEET BY 31-6 CUBIC FEET, YOUR SHARE OF THE COST WOULD BE 31-6/1,031-6 OF $468.87, OR $14.36. THE AGGREGATE EXCESS COST FOR THE TRANSPORTATION OF YOUR GOODS TO YOUR RESIDENCE IN ALASKA IS $167.40, FOR WHICH YOU MUST BE HELD LIABLE.

WE UNDERSTAND FROM YOUR LETTER OF JANUARY 31, 1958, THAT YOU BELIEVE THE EXCESS WEIGHT OR VOLUME OF GOODS SHIPPED IN YOUR CASE RESULTED FROM THE NEGLIGENCE OF GOVERNMENT REPRESENTATIVES AND THAT YOU DISCLAIM LIABILITY FOR THE EXCESS COST FOR THAT REASON. AS A MATTER OF LAW THE MOVEMENT OF AN EMPLOYEE'S HOUSEHOLD GOODS AND EFFECTS IS NOT A GOVERNMENTAL FUNCTION AND WHEN THE GOVERNMENT THROUGH ITS REPRESENTATIVES ENTERS INTO SUCH TRANSACTIONS ON BEHALF OF AN EMPLOYEE IT DOES SO ONLY AS AN AGENT OF THE EMPLOYEE. WE BELIEVE YOU WILL AGREE THAT ONLY THE EMPLOYEE CAN DETERMINE WHAT ARTICLES OF HOUSEHOLD GOODS AND EFFECTS HE DESIRES TO BE TRANSPORTED. THIS RESPONSIBILITY CANNOT BE PASSED ON TO THE CARRIER OR TO THE GOVERNMENT. GENERALLY, UNDER LAW COMMON CARRIERS MUST ACCEPT AND DELIVER THE HOUSEHOLD GOODS AND EFFECTS DESIGNATED BY THE EMPLOYEE WITHOUT REGARD TO THEIR WEIGHT OR VOLUME. WHEN SUCH GOODS ARE SHIPPED ON A GOVERNMENT BILL OF LADING, THE CONTRACT OF THE BILL REQUIRES THE GOVERNMENT TO PAY THE FULL AMOUNT OF THE LEGAL CHARGES INCLUDING THE COSTS FOR EXCESS WEIGHT OR CUBIC MEASUREMENT. IF THE USUAL TERMS OF A BILL ARE SOUGHT TO BE VARIED BY SUPPLEMENTAL NOTATIONS, SUCH NOTATIONS MUST BE SO CLEAR AND UNEQUIVOCAL AS TO ADMIT OF ONLY ONE MEANING. WE DO NOT BELIEVE THAT THE NOTATION "NOT TO EXCEED 8,750 LBS" IS SO CLEAR AS TO PUT A CARRIER ON NOTICE OF A LIMITATION OF THE GOVERNMENT'S LIABILITY TO IT, WHEN A GREATER WEIGHT OR ITS EQUIVALENT IN VOLUME IS DELIVERED TO THE CARRIER BY THE EMPLOYEE FOR SHIPMENT ON THE BILL. IN ANY EVENT THE LIABILITY OF AN EMPLOYEE TO THE GOVERNMENT FOR EXCESS COSTS OF TRANSPORTATION RESTS UPON PUBLIC LAW 600 AND SECTION 22 OF EXECUTIVE ORDER NO. 9805 WHICH PROVIDES IN PART AS FOLLOWS:

"* * * IF PROPERTY IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THESE REGULATIONS IS SHIPPED ON A GOVERNMENT BILL OF LADING OR PURCHASE ORDER, THE EMPLOYEE SHALL IMMEDIATELY UPON COMPLETION OF THE SHIPMENT PAY TO THE PROPER OFFICER OF THE DEPARTMENT OR ESTABLISHMENT AN AMOUNT EQUAL TO THE CHARGE FOR THE TRANSPORTATION OF SUCH EXCESS COMPUTED FROM THE TOTAL CHARGES ACCORDING TO THE RATIO OF EXCESS WEIGHT TO THE TOTAL WEIGHT OF THE SHIPMENT.'

IN REGARD TO THE RETURN OF YOUR GOODS AND EFFECTS TO THE UNITED STATES, THREE ITEMS OF COST WERE INCURRED, ALL OF WHICH WERE BASED UPON A MOVEMENT OF 1,244-11 CUBIC FEET OF GOODS. THERE IS NO EVIDENCE THAT THE WEIGHT OF THIS SHIPMENT EVER WAS DETERMINED. THE MEASUREMENT APPARENTLY WAS MADE BY THE ALASKA TRANSFER. ITS CHARGE FOR PACKING, CRATING AND DRAYAGE OF 1,244 -11 CUBIC FEET OF GOODS AT $0.70 PER CUBIC FOOT WAS $871.44. THE ALASKA STEAMSHIP COMPANY'S CHARGE ON THE SAME CUBIC MEASUREMENT WAS $715.36, AND THE CITY TRANSFER AND STORAGE CO. IN SEATTLE CHARGED $90. THE TOTAL COST OF MOVING THE 1,244-11 CUBIC FEET OF GOODS WAS $1,676.80. SINCE THE VOLUME OF THE SHIPMENT EXCEEDED THE MAXIMUM ALLOWABLE OF 1,000 CUBIC FEET BY 244-11 CUBIC FEET, THE EXCESS COST CHARGEABLE TO YOU IS 244-11/1,244-11 OF $1,676.80 OR $329.

UPON REVIEW OF THE RECORD THE TOTAL EXCESS COST FOR ROUND-TRIP TRANSPORTATION OF YOUR GOODS IS FOUND TO BE $496.40, OR $114.32 LESS THAN THE AMOUNT YOU WERE ORIGINALLY BILLED. WHILE WE REGRET THE APPARENTLY UNANTICIPATED BURDEN PLACED UPON YOU, WE BELIEVE, IN VIEW OF THE FOREGOING EXPLANATION, THAT YOU WILL UNDERSTAND WHY WE ARE WITHOUT AUTHORITY TO RELIEVE YOU OF ALL CHARGES FOR EXCESS COSTS.

PAYMENT OF $496.40 SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THAT OFFICE AT BOX 2610, WASHINGTON 13, D.C. ..END :