B-151499, JUN. 14, 1963

B-151499, JUN. 14, 1963

TO DIRECTOR, DIVISION OF FISCAL POLICY AND PROCEDURE, OFFICE OF FINANCIAL MANAGEMENT:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1962, TRANSMITTING A VOUCHER EVIDENCING THE CLAIM OF THE BEKINS VAN LINES, LOS ANGELES, CALIFORNIA, FOR DIRECT SETTLEMENT BY OUR CLAIMS DIVISION. THE CLAIM IS FOR THE HAULING OF THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF DR. JON D. WEMPNER, SENIOR ASSISTANT SURGEON (R), UNITED STATES PUBLIC HEALTH SERVICE, FROM TACOMA, WASHINGTON, TO GALLUP, NEW MEXICO, WITH STORAGE-IN- TRANSIT AT ALBUQUERQUE, NEW MEXICO, DURING THE PERIOD FROM JULY 12 TO 27, 1961, INCIDENT TO ACTIVE DUTY ORDERS DATED APRIL 28, 1961, TO DR. WEMPNER. YOUR LETTER POINTS OUT THAT THERE IS FOR DETERMINATION WHETHER THE CARRIER IS ENTITLED TO PAYMENT OF THE FULL AMOUNT CLAIMED INASMUCH AS THERE IS INVOLVED AN ADDITIONAL CHARGE DUE TO SHIPMENT OF THE OFFICER'S EFFECTS BEYOND GALLUP, NEW MEXICO, THE OFFICER'S PERMANENT STATION, TO ALBUQUERQUE, NEW MEXICO, FOR STORAGE AND RESHIPMENT OF THE EFFECTS TO GALLUP. IF IT BE DETERMINED THAT THE CARRIER IS ENTITLED TO THE FULL CHARGES AS BILLED, YOU RAISE THE QUESTION WHETHER THE EXCESS CHARGES ARE THE RESPONSIBILITY OF THE UNITED STATES PUBLIC HEALTH SERVICE OR WHETHER ONE OF THE PARTIES INVOLVED SHOULD BE CHARGED WITH THE EXTRA COSTS.

BY LETTER OF MARCH 28, 1961, THE MEDICAL OFFICER IN CHARGE, PUBLIC HEALTH SERVICE INDIAN HOSPITAL, GALLUP, NEW MEXICO, ADVISED DR. JON D. WEMPNER THAT HE WAS SELECTED FOR ASSIGNMENT TO THAT HOSPITAL. THE LETTER ADVISED DR. WEMPNER THAT HE COULD SHIP HIS HOUSEHOLD EFFECTS ON A GOVERNMENT BILL OF LADING AND THAT 90 DAYS' STORAGE WAS AUTHORIZED. IT WAS RECOMMENDED THAT THE OFFICER ARRANGE WITH THE CARRIER TO HAVE HIS HOUSEHOLD EFFECTS STORED EITHER IN GALLUP OR ALBUQUERQUE, NEW MEXICO, BASED ON THE AVAILABILITY OF STORAGE SPACE IN GALLUP. BY PARAGRAPH 1 (8), PERSONNEL ORDER NO. 87, DATED APRIL 28, 1961, DR. WEMPNER WAS APPOINTED ASSISTANT SURGEON (R), UNITED STATES PUBLIC HEALTH SERVICE; WAS CALLED TO ACTIVE DUTY EFFECTIVE JULY 15, 1961, AND WAS ASSIGNED TO THE PUBLIC HEALTH SERVICE INDIAN HOSPITAL AT GALLUP, NEW MEXICO, WITH TEMPORARY DUTY AT ALBUQUERQUE, NEW MEXICO, TO REPORT NOT LATER THAN JULY 21, 1961.

THE VOUCHER SHOWS CHARGES FOR HAULING THE OFFICER'S EFFECTS FROM TACOMA, WASHINGTON, TO ALBUQUERQUE, NEW MEXICO, THREE DAYS' STORAGE IN TRANSIT AT ALBUQUERQUE AND CARTAGE FROM ALBUQUERQUE TO GALLUP, NEW MEXICO, FOR A TOTAL OF $571.72. IN A LETTER DATED APRIL 10, 1962, THE CARRIER WAS QUESTIONED REGARDING ITS CHARGE FOR THE HAUL OF THE OFFICER'S EFFECTS TO ALBUQUERQUE FOR STORAGE-IN-TRANSIT RATHER THAN TO GALLUP, THE OFFICIAL DESTINATION, INCIDENT TO HIS ORDERS TO ACTIVE DUTY. ITS REPLY WAS THAT THE CHARGES WERE COMPUTED ON THE BASIS OF THE DESTINATION SHOWN ON THE GOVERNMENT BILL OF LADING AS ALBUQUERQUE; ALSO, THAT THE ACCESSORIAL SERVICES CERTIFICATE (FORM DD-619) AND STORAGE CERTIFICATE SHOW ALBUQUERQUE AS THE DESTINATION AND PLACE OF STORAGE. IN RESPONSE SHOWN ALBUQUERQUE AS THE DESTINATION AND PLACE OF STORAGE. IN RESPONSE TO A REQUEST FOR INFORMATION CONCERNING THE MATTER, DR. WEMPNER STATED HE WAS UNCERTAIN AS TO THE SPECIFIC INSTRUCTIONS HE GAVE RELATIVE TO STORAGE AND THAT IT WAS HIS INTENTION THAT THE EFFECTS BE STORED IN TACOMA, WASHINGTON, UNTIL HE NOTIFIED THE CARRIER, BUT THE CARRIER PROVIDED STORAGE AT ALBUQUERQUE.

IN A MEMORANDUM FROM THE HOSPITAL ADMINISTRATIVE OFFICER, GALLUP, NEW MEXICO, DATED JUNE 22, 1962, IT WAS STATED THAT IT MAY HAVE BEEN POSSIBLE THAT THE OFFICER ADVISED THE CARRIER TO STORE THE GOODS IN ALBUQUERQUE, IN VIEW OF THE INSTRUCTIONS IN THE LETTER OF MARCH 28, 1961. IT WAS FURTHER STATED THAT DR. WEMPNER BELIEVES HE GAVE VERBAL AUTHORIZATION FOR STORAGE- IN-TRANSIT, BUT DOES NOT KNOW WHETHER THE MOVING COMPANY WAS TOLD TO STORE THE GOODS AT TACOMA OR ALBUQUERQUE.

PARAGRAPH 8100 OF THE JOINT TRAVEL REGULATIONS, PROMULAGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 406, AUTHORIZES TEMPORARY STORAGE AT GOVERNMENT EXPENSE AT PLACE OF ORIGIN, IN TRANSIT, OR AT DESTINATION FOR A PERIOD OF 90 DAYS IN CONNECTION WITH A SHIPMENT OF PERMANENT CHANGE OF STATION WEIGHT ALLOWANCE OF HOUSEHOLD GOODS. PARAGRAPH 8007 PROVIDES THAT ANY EXCESS COSTS RESULTING FROM THE TRANSPORTATION OF HOUSEHOLD GOODS FOR A DISTANCE GREATER THAN THAT BETWEEN THE AUTHORIZED POINTS WILL BE BORNE BY THE MEMBER.

WHILE THE ACCESSORIAL SERVICES CERTIFICATES DATED JULY 1 AND JULY 27, 1961, APPEAR TO HAVE BEEN ALTERED, IT SEEMS CLEAR THAT THE CERTIFICATE DATED JULY 1, 1961, SHOWS SHIPMENT WAS TO BE MADE FROM TACOMA, WASHINGTON, TO ALBUQUERQUE, NEW MEXICO, WITH NO STORAGE AT ORIGIN. WHILE IT IS REPORTED THAT THIS CERTIFICATE WAS SIGNED BY DR. WEMPNER'S WIFE, THERE IS NOTHING TO INDICATE THAT SHE WAS NOT AUTHORIZED TO ACT ON HIS BEHALF OR THAT IT WAS MADE OUT CONTRARY TO HIS INSTRUCTIONS. ALSO, THE BILL OF LADING WHICH THE OFFICER ISSUED TO THE CARRIER SHOWS THE CONSIGNEE AS DR. JOHN WEMPNER, ALBUQUERQUE, NEW MEXICO. THE BLOCK IN WHICH TO SHOW THE DESTINATION WAS NOT FILLED IN, BUT IN THE ABSENCE OF ANOTHER DESTINATION BEING SHOWN (WHICH WAS THE RESPONSIBILITY OF DR. WEMPNER), IT SEEMS CLEAR THAT THE CARRIER WAS JUSTIFIED IN MAKING THE SHIPMENT TO ALBUQUERQUE, THE ADDRESS OF THE CONSIGNEE.

CONSEQUENTLY, THE CARRIER IS ENTITLED TO PAYMENT IN THE FULL AMOUNT CLAIMED AND BY SETTLEMENT OF MARCH 28, 1963, OUR TRANSPORTATION DIVISION ALLOWED BEKINS VAN LINES THE AMOUNT OF $571.72. SINCE THE SHIPMENT WAS MADE TO ALBUQUERQUE ON THE BASIS OF THE SHIPPING DOCUMENTS FURNISHED THE CARRIER BY DR. WEMPNER, HE IS LIABLE FOR THE EXCESS COSTS RESULTING FROM SUCH SHIPMENT. IT MAY BE THAT, IN VIEW OF THE LETTER OF MARCH 28, 1961, DR. WEMPNER BELIEVED THAT STORAGE COULD BE AUTHORIZED AT EITHER GALLUP OR ALBUQUERQUE. IT WILL BE NOTED, HOWEVER, THAT THE LETTER RESTRICTED SUCH STORAGE ON THE BASIS OF THE AVAILABILITY OF STORAGE WITH THE WHITE ELEPHANT STORAGE COMPANY IN GALLUP. THERE IS NOTHING IN THE RECORD TO SUGGEST THAT STORAGE THERE WAS NOT AVAILABLE AND, EVEN IF IT WERE SHOWN THAT DR. WEMPNER WAS MISLED BY THE LETTER OF MARCH 28, 1961, THAT WOULD NOT RELIEVE HIM OF LIABILITY AS IT IS A WELL SETTLED PRINCIPLE OF LAW THAT THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. ROBERTSON V. SICHEL, 127 U.S. 507, 515.

OUR TRANSPORTATION DIVISION HAS DETERMINED THAT THE MOVEMENT TO ALBUQUERQUE RESULTED IN EXCESS COSTS TO THE GOVERNMENT IN THE AMOUNT OF $63.18 COMPUTED AS FOLLOWS:

TABLE

TACOMA, WASHINGTON, TO GALLUP, NEW MEXICO, WITH SIT AT GALLUP

DATE OF PICKUP: 6/30/61 - NET WEIGHT: 2,735 POUNDS DISTANCE: 1,406 MILES, HHGCB MILEAGE GUIDE NO. 6

LINE HAUL

2,735 POUNDS AT $11.20 CWT. $306.32 HHGCB MRT-1-A, SECTION III

ACCESSORIAL CHARGES

PACKING AS BILLED 112.00

APPLIANCE SERVICING AS BILLED 15.00 STORAGE IN-TRANSIT

2,735 POUNDS AT 50 CENTS CWT. (STORAGE FOR 1 PERIOD) 13.68

2,735 POUNDS AT 50 CENTS (WAREHOUSE HANDLING) 13.68

2,735 POUNDS AT $1.75 CWT. (DELIVERY AT GALLUP) 47.86 HHGCB MRT-1-A, ITEM 175-A, AND SEC. VI IN SUPP. 2)

TOTAL CHARGES $508.54

PAID $571.72

EXCESS CHARGES $ 63.18

ACCORDINGLY, THE AMOUNT OF $63.18 SHOULD BE COLLECTED FROM DR. WEMPNER.