B-158315, B-159829, APR 9, 1973, 52 COMP GEN 673

B-158315, B-159829, APR 9, 1973, 52 COMP GEN 673

TRANSPORTATION - FREIGHT - CHARGES - DELIVERY REQUIREMENT THE HOLDING IN UNITED VAN LINES, INC. V. UNITED STATES, 448 F.2D 1190, THAT A MOTOR CARRIER MAY RETAIN PAYMENT MADE OF LINE-HAUL TRANSPORTATION CHARGES FOR A SHIPMENT OF SERVICEMAN'S HOUSEHOLD GOODS DESTROYED WHILE IN TEMPORARY STORAGE AT DESTINATION AWAITING DELIVERY IS NOT FOR GENERAL APPLICATION SINCE OTHER CONTRACTS OF CARRIAGE PROVIDE SIGNIFICANT LEGAL REASON FOR CONFINING THE UNITED DECISION, AND BECAUSE THE COURT DID NOT CONSIDER THE MANY CARRIER TARIFFS, QUOTATIONS, OR COMMERCIAL BILLS OF LADING WHICH IMPOSE LIABILITY ON THE MOTOR CARRIER OR FREIGHT FORWARDER. ENTITLEMENT TO TRANSPORTATION CHARGES WHERE HOUSEHOLD GOODS ARE DESTROYED OR STOLEN WHILE IN TEMPORARY STORAGE AT DESTINATION BEFORE DELIVERY DEPENDS IN EACH CASE UPON THE FACTS AND CONTROLLING CONTRACT PROVISIONS IN TARIFFS, TENDERS, AND BILLS OF LADING. CHARGES PAID WHERE GOODS HAVE BEEN DESTROYED OR STOLEN SHOULD BE RECOVERED.

TO THE SECRETARY OF THE ARMY, APRIL 9, 1973:

WE REFER TO THE LETTER OF MARCH 16, 1973, FROM THE ACTING ASSISTANT SECRETARY OF THE ARMY (FM), WITH ENCLOSURE, CONCERNING UNITED VAN LINES, INC. V. UNITED STATES, 448 F.2D 1190(1971)(UNITED). IN THAT CASE THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HELD IN EFFECT THAT WHEN A MOTOR CARRIER RECEIVES PAYMENT OF THE LINE-HAUL TRANSPORTATION CHARGES FOR A SHIPMENT OF SERVICEMAN'S HOUSEHOLD GOODS PLACED IN TEMPORARY STORAGE AT DESTINATION PURSUANT TO OUR REGULATIONS (5 GAO 3075), IT IS ENTITLED TO RETAIN THE AMOUNT PAID ALTHOUGH THE GOODS WERE NEVER DELIVERED TO THE CONSIGNEE, BUT WERE DESTROYED IN A FIRE WHILE IN TEMPORARY STORAGE.

IN VIEW OF THAT DECISION THE ACTING ASSISTANT SECRETARY ASKS WHETHER CARRIERS MAY BE ALLOWED TRANSPORTATION CHARGES AND RELATED SERVICES FOR SHIPMENTS OF HOUSEHOLD GOODS WHICH ARE DESTROYED BY FIRE WHILE STORED IN TRANSIT.

IN SEVERAL RECENT FIRE OR THEFT CASES WHICH SUPERFICIALLY AT LEAST CONTAIN FACTS RESEMBLING THOSE IN THE UNITED CASE, WE HAVE FOUND OTHER PROVISIONS OF THE CONTRACT OF CARRIAGE WHICH PROVIDE SIGNIFICANT LEGAL REASONS FOR CONFINING THE UNITED DECISION TO THAT PARTICULAR CASE, IN WHICH THE JUDGMENT HAS BEEN SATISFIED. ALSO, WE NOTE THAT MANY CARRIER TARIFFS OR QUOTATIONS OR COMMERCIAL BILLS OF LADING CONTAIN PROVISIONS WHICH IMPOSE ON THE MOTOR CARRIER OR FREIGHT FORWARDER COMMON CARRIER LIABILITY FOR LOSS OF OR DAMAGE TO THE HOUSEHOLD GOODS WHILE THEY ARE IN TEMPORARY STORAGE FOR VARIOUS PERIODS. SUCH PROVISIONS WERE NOT BROUGHT TO THE ATTENTION OF OR CONSIDERED BY THE COURT IN UNITED.

FOR THESE REASONS WE BELIEVE THAT FOR THE PRESENT TIME THE ENTITLEMENT OF THE MOTOR CARRIER OR FREIGHT FORWARDER TO RECEIVE AND RETAIN THE LINE-HAUL TRANSPORTATION CHARGES WHERE HOUSEHOLD GOODS ARE DESTROYED OR STOLEN WHILE IN TEMPORARY STORAGE AT DESTINATION AND BEFORE DELIVERY TO THE CONSIGNEE DEPENDS UPON THE FACTS AND CONTROLLING CONTRACT PROVISIONS IN TARIFFS, TENDERS, AND BILLS OF LADING, IN THE INDIVIDUAL CASE.

IN THESE CIRCUMSTANCES, MILITARY DISBURSING OFFICERS SHOULD NOT PAY BILLS OF MOTOR CARRIERS OR FREIGHT FORWARDERS FOR LINE-HAUL TRANSPORTATION CHARGES AND RELATED SERVICES WHERE IT IS KNOWN THAT HOUSEHOLD GOODS WERE DESTROYED BY FIRE OR OTHERWISE (OR STOLEN) WHILE STORED IN TRANSIT. ALSO, IF IN THE SAME CIRCUMSTANCES, THE BILLS HAVE ALREADY BEEN PAID, THE CHARGES SHOULD BE RECOVERED IN THE USUAL MANNER, CONSIDERATION BEING GIVEN TO ANY APPLICABLE LIMITATION WHICH MAY RESTRICT THE PERIOD DURING WHICH SUCH COLLECTION MAY BE MADE. ANY PROTESTS TO THE REFUSAL TO PAY OR COLLECTION ACTION MAY BE FORWARDED HERE OR TO OUR TRANSPORTATION AND CLAIMS DIVISION FOR CONSIDERATION. SEE THE ATTACHED COPY OF OUR LETTER OF MARCH 28, 1973, B-159829, TO THE COMMANDER, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, IN WHICH AMONG OTHER THINGS WE SUGGEST THAT THE COMMANDER ADVISE THE RESPECTIVE DISBURSING OFFICES OF THE PAYMENT PROCEDURES TO BE OBSERVED IN THESE KINDS OF CASES.