B-151495, JUN. 28, 1963

B-151495, JUN. 28, 1963

TO MR. JAMES A. HICKEY, AUTHORIZED CERTIFYING OFFICER, NATIONAL INSTITUTES OF HEALTH:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1963, AND ENCLOSURES,

REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON THE SUBMITTED VOUCHER IN FAVOR OF SANTINI MOVING CORPORATION, 2497 WEBSTER AVENUE, NEW YORK 58, NEW YORK, FOR PACKING AND TRANSPORTING THE HOUSEHOLD GOODS OF DOCTOR DANIEL N. STERN, PUBLIC HEALTH OFFICER, NATIONAL INSTITUTES OF HEALTH.

BY PERSONNEL ORDER NO. 271, DATED DECEMBER 29, 1961, DR. STERN WAS APPOINTED AS SURGEON IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE AND ORDERED TO ACTIVE DUTY ON JANUARY 21, 1962, WITH DIRECTIONS TO PROCEED ON THAT DATE FROM BELLEVUE HOSPITAL IN NEW YORK CITY TO THE NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND, REPORTING THERE FOR PERMANENT DUTY NOT LATER THAN JANUARY 22, 1962. IT IS STATED THAT DR. STERN WAS INJURED IN AN ACCIDENT WHICH PRECLUDED HIM FROM REPORTING TO ACTIVE DUTY AS ORDERED AND SO MUCH OF THE ORDERS AS CONCERNED HIS CALL TO ACTIVE DUTY WAS CANCELLED BY FURTHER ORDERS DATED JANUARY 15, 1962. THEREAFTER, ON FEBRUARY 2, 1962, GOVERNMENT BILL OF LADING NO. A 0422740 WAS ISSUED TO THE SANTINI MOVING CORPORATION FOR THE MOVEMENT OF DR. STERN'S HOUSEHOLD GOODS FROM HEMPSTEAD, LONG ISLAND, NEW YORK, TO WASHINGTON, C., INCLUDING AN ADDITIONAL STOP IN NEW YORK CITY FOR GOODS LOCATED THERE. THE CERTIFICATE TO BE EXECUTED ON THE BILL OF LADING BY THE ISSUING OFFICER HAS NOT BEEN COMPLETED, BUT IT IS ASSUMED THE BILL OF LADING WAS ISSUED TO THE CARRIER BY DR. STERN.

IN ACCORDANCE WITH THE TERMS OF THE BILL OF LADING THE MOVEMENT OF THE MEMBER'S GOODS FROM HEMPSTEAD, NEW YORK, WITH ADDITIONAL STOP IN NEW YORK CITY, TO WASHINGTON, D.C., WAS COMPLETED BY THE SANTINI MOVING CORPORATION ON FEBRUARY 5, 1962, AND THEREAFTER DR. STERN WAS DIRECTED TO REPORT AT BETHESDA FOR ACTIVE DUTY ON FEBRUARY 21, 1962, BY VERBAL ORDERS OF THE SURGEON GENERAL OF THAT DATE, WHICH WERE CONFIRMED ON MARCH 13, 1962, BY PERSONNEL ORDER NO. 47.

YOU STATE THAT DR. STERN WAS ACTING IN GOOD FAITH WHEN HE SHIPPED HIS GOODS TO WASHINGTON BELIEVING THAT THE SHIPMENT WAS PAYABLE FROM GOVERNMENT FUNDS. YOU FURTHER STATE THAT PAYMENT OF THE SHIPPING COSTS BY THE MEMBER WOULD CONSTITUTE A SEEMINGLY GROSS INEQUITY TO HIM AND IN VIEW OF THE CIRCUMSTANCES YOU ASK WHETHER THE SHIPMENT CONSTITUTES A LEGAL LIABILITY OF THE GOVERNMENT IN RELATION TO THE CARRIER AND, IF SO, WHETHER DR. STERN IS REQUIRED TO MAKE REIMBURSEMENT.

WHEN HOUSEHOLD GOODS ARE SHIPPED ON A GOVERNMENT BILL OF LADING, AS IN THE CASE AT HAND, THE BILL OF LADING CONSTITUTES A CONTRACT OF TRANSPORTATION WHICH, UNDER THE TERMS AND CONDITIONS SET FORTH THEREIN, REQUIRES THE GOVERNMENT TO PAY TO THE TRANSPORTATION COMPANY THE AMOUNT OF THE LEGAL CHARGES INVOLVED IN THE MOVEMENT OF THE ARTICLES COMPRISING THE SHIPMENT. THE GOVERNMENT'S LIABILITY TO PAY THE CARRIER CONCERNED FOR MOVING A MEMBER'S HOUSEHOLD GOODS UNDER A GOVERNMENT BILL OF LADING ACCRUES WHEN DELIVERY IS COMPLETE WITH NOTHING LEFT TO BE DONE TO FINISH THE TRANSPORTATION, AND SUCH LIABILITY IS IN NO WAY DEPENDENT UPON THE MEMBER'S ENTITLEMENT TO HAVE HIS EFFECTS SHIPPED BETWEEN THE DESIGNATED POINTS AT GOVERNMENT EXPENSE. SEE 21 COMP. GEN. 559; 25 COMP. GEN. 360, 364. THUS, SINCE THE SANTINI MOVING CORPORATION COMPLETED THEIR PART OF THE CONTRACT WHEN THEY DELIVERED DR. STERN'S HOUSEHOLD EFFECTS TO HIM AT THE SPECIFIED ADDRESS IN WASHINGTON ON FEBRUARY 5, 1962, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE AND THE VOUCHER WHICH, TOGETHER WITH ENCLOSURES, IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.

THE ENTITLEMENT OF A MEMBER OF THE UNIFORMED SERVICES TO TRANSPORTATION OF HIS HOUSEHOLD EFFECTS AT PUBLIC EXPENSE IS GOVERNED BY PROVISIONS OF THE JOINT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO AUTHORITY CONTAINED IN SECTION 406, TITLE 37, UNITED STATES CODE. PARAGRAPH 8015, ITEM 1, OF THE REGULATIONS SPECIFICALLY PROVIDES THAT TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED PRIOR TO ISSUANCE OF ORDERS "EXCEPT IN CASE OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE NECESSITY," AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE UNIFORMED SERVICE CONCERNED. SINCE DR. STERN HAD NO EFFECTIVE TRAVEL ORDERS AT THE TIME HIS HOUSEHOLD GOODS WERE SHIPPED AND AS THE PRESENT RECORD DOES NOT SHOW THAT THE PROPER AUTHORITY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE HAS DETERMINED THAT SHIPMENT PRIOR TO THE VERBAL ORDERS OF FEBRUARY 21, 1962, WAS DUE TO ANY OF THE ABOVE-PRESCRIBED CONDITIONS (NOR DO THE FACTS INDICATE THAT SUCH A DETERMINATION WOULD BE APPROPRIATE), THERE IS NO AUTHORITY UNDER THE GOVERNING REGULATIONS FOR SUCH SHIPMENT AT GOVERNMENT EXPENSE. CONSEQUENTLY, DR. STERN IS LIABLE TO THE UNITED STATES FOR THE AMOUNT WHICH IS PAID THE CARRIER ON THE PRESENTED VOUCHER.

WHILE IT MAY APPEAR INEQUITABLE TO REQUIRE DR. STERN TO PAY THE COST OF THE SHIPMENT IN THIS CASE WE ARE REQUIRED TO BASE OUR DECISIONS ON THE PROVISIONS OF THE APPLICABLE LAW AND REGULATIONS.