B-164240, B-164312, OCT. 14, 1968

B-164240, B-164312, OCT. 14, 1968

TO WOODROW DE CASTRO, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1968, AND OURS OF MAY 29, 1968, B-164240, CONCERNING THE CLAIMS OF YOUR CLIENT, F. S. RUDESHEIM, OWNER OF TRANSPORTED BAXTER, S.A., AND AIR VAN PACK, IN THE AMOUNTS OF $9,462.75 AND $18,925.50 FOR OVERTIME SERVICES SAID TO HAVE BEEN RENDERED BY SUCH COMPANIES IN EXPEDITING THE MOVEMENT OF THE HOUSEHOLD EFFECTS OF UNITED STATES MILITARY AND CIVILIAN PERSONNEL OF THE DEPARTMENTS OF THE ARMY AND AIR FORCE FROM PANAMA DURING THE CRISIS THAT OCCURRED IN THAT COUNTRY ON OR ABOUT JANUARY 9, 1964. THE TWO CLAIMS WERE DISALLOWED BY OUR TRANSPORTATION DIVISION BUT, AS WE ADVISED YOU IN OUR LETTER OF MAY 29, 1968, THE CLAIMS WERE REOPENED AND ADDITIONAL REPORTS RELATIVE TO THEM HAVE NOW BEEN OBTAINED FROM THE MILITARY DEPARTMENTS CONCERNED.

YOUR CLIENT'S CLAIMS ARE NOT BROKEN DOWN INTO SPECIFIC CHARGES FOR OVERTIME SERVICES RENDERED UNDER EACH GOVERNMENT BILL OF LADING, NEVERTHELESS THE CLAIMS ARE SUPPORTED BY PAYROLL RECORDS SHOWING OVERTIME HOURS WORKED AND A LISTING OF BILLS OF LADING IN CONNECTION WITH WHICH THE OVERTIME SERVICES WERE SAID TO HAVE BEEN PERFORMED.

YOU CONTEND THAT THE OVERTIME SERVICES WERE CONTRACTED FOR BY THE GOVERNMENT DIRECTLY WITH YOUR CLIENT'S COMPANIES AND NOT THROUGH THE CARRIER OR FREIGHT FORWARDER TO WHICH THE THROUGH BILLS OF LADING WERE ISSUED AND THAT SUCH CARRIERS AND FORWARDERS WERE NOT AWAREN OR WERE THEY INFORMED BY YOUR CLIENT OF THE EXTRA WORK INVOLVED AS IT WAS ASSUMED SETTLEMENT FOR THE OVERTIME SERVICES WAS STRICTLY A MATTER BETWEEN THE MILITARY AND YOUR CLIENT AND PAYMENTS WOULD COME FROM THE EMERGENCY APPROPRIATION FOR THE EXISTING CONDITIONS.

YOUR CLIENT'S CLAIMS ARE SUPPORTED BY DOCUMENTS AND INFORMATION REFERRING TO AND RELATING TO GOVERNMENT BILLS OF LADING WHEREBY THE GOVERNMENT CONTRACTED WITH VARIOUS CARRIERS OR FREIGHT FORWARDERS FOR CERTAIN SERVICES AND THE CLAIMS ARE BASED UPON PROVISIONS OF MILITARY RATE TENDER I.C.C. NO. 20, PUBLISHED BY MOVERS' AND WAREHOUSEMEN'S ASSOCIATION OF AMERICA. THIS IS A QUOTATION UNDER THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, ISSUED BY THE ASSOCIATION AND IS THE SAME TENDER UPON WHICH THE CARRIERS OR FORWARDERS BILLED AND WERE PAID CHARGES FOR THE SERVICES PERFORMED UNDER THE THROUGH BILLS OF LADING.

THE RECORD INDICATES THAT THE GOVERNMENT (THE DEPARTMENT OF THE ARMY AND THE DEPARTMENT OF THE AIR FORCE) CONTRACTED WITH VARIOUS CARRIERS OR FREIGHT FORWARDERS TO HAVE THE HOUSEHOLD GOODS OF GOVERNMENT PERSONNEL (MILITARY AND CIVILIAN) TRANSPORTED FROM THE CANAL ZONE TO THE CONTINENTAL UNITED STATES (CONUS). THE TRANSPORTATION WAS DOOR-TO DOOR CONTAINER SERVICE UTILIZING THE MILITARY SEA TRANSPORTATION SERVICE (MSTS) AND WAS PERFORMED UNDER THROUGH GOVERNMENT BILLS OF LADING. ALTHOUGH THE RECORD INDICATES THAT YOUR CLIENT WAS THE CRATING AND PACKING AGENT FOR THE CARRIERS OR FREIGHT FORWARDERS, THE GOVERNMENT'S CONTRACTUAL OBLIGATION UNDER THE BILL OF LADING WAS WITH THE CARRIER OR FORWARDER TO WHICH THE BILL OF LADING WAS ISSUED.

INSOFAR AS THE BILL OF LADING SETS FORTH THE TERMS ON WHICH THE TRANSPORTATION IS TO BE MADE, IT OPERATES, UPON ACCEPTANCE, AS A CONTRACT BETWEEN THE SHIPPER AND THE CARRIER OR FREIGHT FORWARDER. SEE MICHIGAN CENTRAL R. CO. V MARK OWEN AND CO., 256 U.S. 427 (1921); NORTHERN PACIFIC R. CO. V WALL, 241 U.S. 87 (1916); 13 AM. JUR. 2D, CARRIERS, SECTION 278. THE INITIAL CARRIER OR FORWARDER IS RESPONSIBLE FOR THE TRANSPORTATION UNDER THE BILL OF LADING AND THE CONTRACT OF TRANSPORTATION IS AN INDIVISIBLE CONTRACT COVERING ALL CHARGES INCLUDING STORAGE AND DEMURRAGE AND CANNOT BE SPLIT UP INTO COMPONENT PARTS. PENNSYLVANIA R. CO. V CHARLES E. GIBSON, INC., 23 F.SUPP. 857, 860 (1938).

SUITS HAVE BEEN FILED BY THE FREIGHT FORWARDERS OR CARRIERS AGAINST THE UNITED STATES IN THE UNITED STATES COURT OF CLAIMS ON A LARGE NUMBER OF GOVERNMENT BILLS OF LADING UNDER WHICH HOUSEHOLD EFFECTS OF MILITARY PERSONNEL MOVED DURING THE YEARS 1958 THROUGH 1966. MANY OF THE GOVERNMENT BILLS OF LADING IN CONNECTION WITH WHICH YOUR CLIENT IS CLAIMING ADDITIONAL CHARGES ARE THE SUBJECT OF SUCH SUITS. A PARTIAL LISTING OF THE SUITS WHICH INVOLVE THE BILLS OF LADING IN CONNECTION WITH WHICH YOUR CLIENT CLAIMS OVERTIME CHARGES ARE: BEKINS VAN LINES, INC. V UNITED STATES, CT. CL. NO. 22-68; BEKINS VAN LINES COMPANY V UNITED STATES, CT. CL. NO. 23-68; BEKINS HOUSEHOLD SHIPPING COMPANY V UNITED STATES, CT. CL. NO. 24-68; DEAN VAN LINES, INC. V UNITED STATES, CT. CL. NO. 219-67; FERNSTORM STORAGE AND VAN CO. V UNITED STATES, CT. CL. NO. 311 -67; FURNITURE FORWARDING, INC. V UNITED STATES, CT. CL. NO. 298-67; GARRETT HOUSEHOLD GOODS FORWARDING CO. V UNITED STATES, CT. CL. NO. 281- 68; GETZ BROTHERS AND COMPANY V UNITED STATES, CT. CL. NO. 13-68; INTERNATIONAL SEA VAN, INC. V UNITED STATES, CT. CL. NO. 425-67; INTERSTATE MOTOR FREIGHT SYSTEM V UNITED STATES, CT. CL. NO. 357-67; NEPTUNE THRU CONTAINER CORP. V UNITED STATES, CT. CL. 190-67; RICHARDSON TRANSFER AND STORAGE CO., INC. V UNITED STATES, CT. CL. NOS. 38-68 AND 267 -68; TRANS OCEAN VAN SERVICE V UNITED STATES, CT. CL. NOS. 352-67 AND 276- 68.

UNTIL THERE IS A FINAL JUDICIAL DETERMINATION AS TO WHAT THE PROPER CHARGES ARE FOR EACH BILL OF LADING IN SUIT AND WHAT THE OBLIGATION AND LIABILITY OF THE UNITED STATES IS IN CONNECTION WITH THESE SUITS, IT DOES NOT APPEAR THAT PAYMENT OF CLAIMS INVOLVING THESE BILLS OF LADING WOULD BE WARRANTED. WE DO NOT HAVE KNOWLEDGE OF WHAT ARRANGEMENTS YOUR CLIENT MAY HAVE HAD WITH THE CARRIER OR FREIGHT FORWARDERS INVOLVED IN THE SUITS; THUS, THERE IS NO ASSURANCE THAT THE GOVERNMENT WOULD OBTAIN A FULLY BINDING ACQUITTANCE FROM EITHER YOUR CLIENT OR THE CARRIERS OR FREIGHT FORWARDERS IF ANY PAYMENT WERE MADE WHILE THE BILLS OF LADING ARE INVOLVED IN PENDING LITIGATION.

ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE REFUSED TO CONSIDER ANY CLAIM AGAINST THE UNITED STATES WHICH IS THE SUBJECT OF PENDING LITIGATION IN THE COURTS. 33 COMP. GEN. 479, 481; 8 COMP. DEC. 841. IN VIEW OF THE FOREGOING, EVEN IF YOUR CLIENT'S CLAIMS WERE OTHERWISE MERITORIOUS, NO ACTION COULD NOW BE TAKEN BY OUR OFFICE TO ALLOW SUCH CLAIMS.