B-154101, JUN. 29, 1964

B-154101, JUN. 29, 1964

TO OREN R. BEEDY, EOCM, USN:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 24, 1964, IN WHICH YOU, IN EFFECT, REQUEST RECONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE MARCH 25, 1964, IN DISALLOWING YOUR CLAIM FOR REFUND OF EXCESS COST PAID BY YOU IN CONNECTION WITH THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS FROM PORT HUENENE, CALIFORNIA, TO EAST GREENWICH, RHODE ISLAND, INCIDENT TO ORDERS OF FEBRUARY 16, 1963, DIRECTING A PERMANENT CHANGE OF STATION FROM U.S. NAVAL RECEIVING STATION, TREASURE ISLAND, SAN FRANCISCO, CALIFORNIA , TO ANTARCTIC SUPPORT ACTIVITY, DAVISVILLE, RHODE ISLAND.

SHIPMENT OF YOUR EFFECTS WAS MADE BY PYRAMID VAN LINES, INC. THE WEIGHT CERTIFICATE OF THE SHIPMENT AT DESTINATION SHOWS THE SHIPMENT WEIGHED 9,280 POUNDS, AND SINCE YOUR AUTHORIZED WEIGHT ALLOWANCE WAS 7,000 POUNDS THE EXCESS WEIGHT WAS DETERMINED TO BE 1,912 POUNDS, AFTER TAKING INTO CONSIDERATION AN ALLOWANCE FOR PACKING AND CRATING, RESULTING IN A TOTAL EXCESS COST OF $301.52. THIS AMOUNT HAS BEEN CHECKED IN YOUR PAY ACCOUNT. IN YOUR LETTER OF MARCH 26, 1963, YOU STATED THAT AN AGENT OF THE MOVING COMPANY GROSSLY UNDERESTIMATED THE WEIGHT OF YOUR HOUSEHOLD EFFECTS PRIOR TO SHIPMENT AND, BECAUSE OF SUCH ESTIMATE, YOU SHIPPED SOME ITEMS THAT YOU COULD HAVE DISPOSED OF HAD YOU KNOWN THE ACTUAL WEIGHT. YOU REQUESTED SOME ACTION BE TAKEN AGAINST THE COMPANY BECAUSE OF THE WIDE DIFFERENCE BETWEEN THE ESTIMATED AND THE ACTUAL WEIGHT.

YOU SUBSEQUENTLY FILED A CLAIM FOR REFUND OF THE EXCESS COST AND BY SETTLEMENT DATED MARCH 25, 1964, YOUR CLAIM WAS DISALLOWED FOR THE REASONS STATED THEREIN. IN YOUR LETTER OF APRIL 24, 1964, YOU DO NOT CONTEST THE FACT THAT THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS WAS OVER YOUR AUTHORIZED WEIGHT ALLOWANCE, BUT YOU CONTEND THAT THE CARRIER SHOULD BE HELD LIABLE FOR ITS ERROR IN GROSSLY UNDERESTIMATING THE WEIGHT OF THE SHIPMENT AND YOU SUGGEST THAT SOME SYSTEM BE ARRANGED WHEREBY THE CARRIERS WOULD ONLY BE ALLOWED A DISCREPANCY OF A CERTAIN PERCENT BETWEEN THEIR ESTIMATES AND THE ACTUAL WEIGHT OF THE SHIPMENT.

THE PERTINENT STATUTE, 37 U.S.C. 406, PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AS THE SECRETARIES MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRANSPORTATION OF HOUSEHOLD EFFECTS TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES. PARAGRAPH 8002 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SUCH AUTHORITY, PROVIDES THAT HOUSEHOLD EFFECTS WITHIN SPECIFIED WEIGHT ALLOWANCES, DESIGNATED AS ACTUAL NET WEIGHTS, ARE AUTHORIZED FOR SHIPMENT. SUCH WEIGHTS ARE SET FORTH FOR VARIOUS RANKS AND GRADES AND PROVISION IS MADE FOR A PERCENTAGE INCREASE IN SUCH WEIGHTS TO ALLOW FOR PACKING AND CRATING. THE COST OF SHIPPING ANY WEIGHT IN EXCESS OF THE MAXIMUM OVER-ALL WEIGHT FIXED BY THE REGULATIONS FOR SHIPMENT AT GOVERNMENT EXPENSE PROPERLY IS CHARGEABLE TO THE MILITARY MEMBER.

AS INDICATED IN OUR DISALLOWANCE OF MARCH 25, 1964, THE METHOD OF WEIGHT COMPUTATION IS A PART OF THE REGULATIONS AND IS ONE OF THE "CONDITIONS AND LIMITATIONS" WHICH THE SECRETARIES ARE AUTHORIZED TO PRESCRIBE. AS SUCH IT IS A VALID REGULATION HAVING THE FORCE AND EFFECT OF LAW AND MUST BE APPLIED AS PRESCRIBED. THERE IS NO REQUIREMENT OF LAW OR REGULATIONS THAT HOUSEHOLD EFFECTS BE WEIGHED AT A MEMBER'S HOME PRIOR TO SHIPMENT IN ORDER TO ASCERTAIN THE TRUE NET WEIGHT. NEITHER DO THE REGULATIONS AUTHORIZE SETTLEMENT WITH THE CARRIER ON THE BASIS OF ITS ESTIMATED WEIGHT OF THE GOODS TO BE SHIPPED. SINCE THE GOVERNMENT'S LIABILITY TO THE CARRIER IS DETERMINED ON THE BASIS OF THE ACTUAL WEIGHT OF THE GOODS SHIPPED, THE LIABILITY OF THE MEMBER FOR ANY EXCESS WEIGHT PROPERLY IS FOR DETERMINATION ON THE SAME BASIS RATHER THAN ON ANY ESTIMATE AS TO THE WEIGHT OF SUCH SHIPMENT AT THE TIME NEGOTIATIONS FOR THE SHIPMENT ARE BEING EFFECTED. THEREFORE THE FACT THAT THE CARRIER'S AGENT MADE AN ERRONEOUS ESTIMATE OF WHAT HE CONSIDERED TO BE THE WEIGHT OF THE SHIPMENT AFFORDS NO PROPER BASIS TO RELIEVE YOU OF LIABILITY FOR THE EXCESS WEIGHT OF THE GOODS SHIPPED.