B-80166, OCTOBER 18, 1948, 28 COMP. GEN. 244

B-80166, OCTOBER 18, 1948, 28 COMP. GEN. 244

TRANSPORTATION - HOUSEHOLD EFFECTS - SHIPMENT IN MORE THAN ONE LOT VIA COMMERCIAL BILLS OF LADING EVEN THOUGH A TRANSFERRED EMPLOYEE'S HOUSEHOLD EFFECTS WERE SHIPPED BY TWO OCEAN CARRIERS BETWEEN OVERSEAS POSTS OF DUTY DUE SOLELY TO THE NEGLIGENCE OF FOREIGN CUSTOMS OFFICIALS, AND THE ORIGINAL CARRIER REFUSED TO RELEASE ITS PORTION OF THE EFFECTS UNTIL PAYMENT WAS MADE OF ITS CHARGES FOR TRANSPORTING ALL OF THE GOODS IN ONE LOT IN ACCORDANCE WITH AN ALLEGED AGREEMENT WITH THE EMPLOYEE'S SHIPPING AGENTS, THE LEGAL LIABILITY OF THE GOVERNMENT FOR TRANSPORTATION OF ALL OF THE EFFECTS IS RESTRICTED BY SECTION 8 OF EXECUTIVE ORDER NO. 9805 TO AN AMOUNT NOT TO EXCEED THE COST OF SHIPMENT IN ONE LOT BY THE MOST ECONOMICAL ROUTE. UNDER SECTION 22 OF EXECUTIVE ORDER NO. 9805, PROVIDING THAT A TRANSFERRED EMPLOYEE IS TO BE REIMBURSED FOR THE TRANSPORTATION EXPENSES ACTUALLY AND NECESSARILY INCURRED IN SHIPPING HIS HOUSEHOLD EFFECTS BETWEEN OVERSEAS POSTS OF DUTY ON A COMMERCIAL BILL OF LADING, PAYMENT OF AN AMOUNT REPRESENTING THE COST OF SUCH SHIPMENT MAY NOT BE AUTHORIZED PRIOR TO THE PAYMENT OF SUCH AMOUNT BY THE EMPLOYEE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, OCTOBER 18, 1948:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1948, RELATIVE TO THE CLAIM OF REDERIAKTIEBOLAGET RAGNE LINES FOR AN AMOUNT ALLEGED TO BE DUE COVERING TRANSPORTATION OF 357 KILOS OF HOUSEHOLD GOODS OF HARRY C. GOAKES, AN EMPLOYEE OF THE CIVIL AERONAUTICS ADMINISTRATION, FROM RIO DE JANEIRO, BRAZIL, TO MEXICO CITY, MEXICO.

BY TRAVEL ORDER NO. A-274.4 DATED APRIL 18, 1947, THE EMPLOYEE WAS DIRECTED TO PROCEED FROM RIO DE JANEIRO, BRAZIL, TO MEXICO CITY, MEXICO, FOR PERMANENT DUTY, TRAVEL TO COMMENCE ON OR ABOUT APRIL 18, 1947. SHIPMENT OF HIS HOUSEHOLD GOODS WAS AUTHORIZED THEREIN IN ACCORDANCE WITH EXECUTIVE ORDER 9805. IT SEEMS THAT IN DECEMBER, 1946, THE EMPLOYEE HAD SHIPPED HIS EFFECTS FROM LIMA, PERU, TO RIO DE JANEIRO, BRAZIL, BUT THAT AT THE TIME OF HIS DEPARTURE FROM RIO DE JANEIRO ON MAY 16, 1947--- PURSUANT TO THE TRANSFER ORDER OF APRIL 18, ABOVE--- THAT SHIPMENT HAD NOT CLEARED THROUGH THE BRAZILIAN CUSTOMS HOUSE BECAUSE THE CAPTAIN OF THE VESSEL HAD LEFT THE CLEARANCE PAPERS IN LIMA. HENCE, THE EMPLOYEE PERSONALLY WAS UNABLE TO HANDLE THE SHIPMENT OF HIS EFFECTS FROM RIO DE JANEIRO TO MEXICO CITY. ARRANGEMENTS WERE MADE BY THE UNITED STATES EMBASSY TRANSPORTATION OFFICER IN RIO DE JANEIRO WITH A SHIPPING BROKER TO HAVE THE GOODS TRANSPORTED VIA THE MOST ECONOMICAL MEANS. SPACE WAS RESERVED ON THE S.S. SIGNEBORG, OWNED BY THE REDERIAKTIEBOLAGET RAGNE LINES, VASTERVIK, SWEDEN, FOR THE ENTIRE SHIPMENT, CONSISTING OF A LOADED LIFT VAN WEIGHING 3,085 KILOS AND THREE LOADED CASES WEIGHING A TOTAL OF 357 KILOS. HOWEVER, UPON ARRIVAL OF THE VESSEL IN RIO DE JANEIRO, IT WAS FOUND THAT THE CUSTOMS PAPERS COVERING CLEARANCE OF THE LIFT VAN HAD BEEN LOST IN THE BRAZILIAN CUSTOMS HOUSE AND COULD NOT BE LOCATED PRIOR TO THE TIME THE BOAT WAS SCHEDULED TO SAIL. THE S.S. SIGNEBORG DEPARTED FROM RIO DE JANEIRO WITH ONLY THE THREE CASES OF EFFECTS, WEIGHING 357 KILOS, ON BOARD. SUBSEQUENTLY, A NEW SET OF PAPERS WAS OBTAINED, AND SHIPMENT OF THE LIFT VAN WAS MADE ON THE S.S. NILS GORTHON, OF THE GORTHON LINES, HELSINGBORG, SWEDEN, IN JULY, 1947. PAYMENT OF THAT LATTER SHIPMENT, IN THE SUM OF $1,433.52, WAS ACCOMPLISHED FROM GOVERNMENT FUNDS IN OCTOBER, 1947.

MEANWHILE, THE THREE CASES ARRIVED AT TAMPICO, MEXICO, ABOARD THE S.S. SIGNEBORG, ACCOMPANIED BY A BILL IN THE AMOUNT OF $1,633.46, WHICH AMOUNT INCLUDED CHARGES FOR NOT ONLY THE THREE CASES ACTUALLY TRANSPORTED ON THAT VESSEL BUT ALSO FOR THE LIFT VAN, WHICH, AS EXPLAINED ABOVE, WAS CARRIED BY A DIFFERENT VESSEL. THE SHIPPING COMPANY AND THE BROKER BOTH CLAIM THAT THE S.S. SIGNEBORG PUT INTO RIO DE JANEIRO EXPRESSLY FOR THE PURPOSE OF PICKING UP THE LIFT VAN AND THE THREE CASES; THAT THE SHIP WOULD NOT HAVE GONE TO RIO DE JANEIRO AT ALL HAD IT NOT BEEN FOR THE LIFT VAN; AND THAT THE SHIPPERS HAD AGREED WITH THE STEAMSHIP LINE THAT "THE VESSEL WOULD NOT ACCEPT THE CARGO FOR DIRECT DISCHARGE AT TAMPICO, IF THE FREIGHT WOULD COVER THE WHOLE SHIPMENT, BECAUSE THE OTHER BOOKINGS FROM RIO DE JANEIRO TO TAMPICO DID NOT MAKE THE CALL AT TAMPICO A PAYABLE ONE.' ACCORDINGLY, THEY INSIST THAT THE ENTIRE AMOUNT OF THE BILL IS DUE, AND THEY HAVE REFUSED TO RELEASE THE THREE CASES TO THE EMPLOYEE UNTIL PAYMENT OF $1,633.46 IS FORTHCOMING. IT FURTHER APPEARS THAT THE EMPLOYEE HAS "EXHAUSTED ALL MEANS AT HIS DISPOSAL IN REACHING A SATISFACTORY SOLUTION," BUT THROUGH INTERCESSION BY THE AMERICAN EMBASSY AT STOCKHOLM, SWEDEN, THE STEAMSHIP COMPANY FINALLY AGREED TO ACCEPT $1,000 FOR THE SHIPMENT. PENDING ACCEPTANCE OR REJECTION OF THAT OFFER THE EFFECTS STILL ARE BEING HELD BY THE SHIPPING COMPANY'S AGENT AT TAMPICO, MEXICO.

THE EMPLOYEE STATES THAT OTHER THAN THE BILLS OF LADING THERE WERE NO WRITTEN AGREEMENTS WITH THE SHIPPING COMPANY. EXAMINATION OF THE SAID BILLS OF LADING BEARS OUT THE ABOVE-STATED FACT THAT THE LIFT VAN WAS NOT SHIPPED ON THE S.S. SIGNEBORG, BUT INSTEAD WAS TRANSPORTED ON THE S.S. NILS GORTHON. THERE ALSO IS FOR NOTING THAT ON THE FRONT OF THE BILL OF LADING COVERING THE SHIPMENT VIA THE S.S. SIGNEBORG THERE IS STAMPED " FREIGHT TO BE CONSIDERED EARNED ON SHIPMENT AND IS NOT RETURNABLE SHIP AND/1OR GOODS LOST OR NOT LOST.' ( ITALICS SUPPLIED.) FURTHERMORE, SECTION 12 OF THE TERMS AND CONDITIONS OF THAT BILL OF LADING, PRINTED ON THE REVERSE SIDE THEREOF, SPECIFIES THAT "FREIGHT SHALL BE PAYABLE ON ACTUAL GROSS INTAKE WEIGHT OR MEASUREMENT, OR, AT CARRIER'S OPTION, ON ACTUAL GROSS DISCHARGED WEIGHT OR MEASUREMENT" AND THAT "FULL FREIGHT HEREUNDER TO PORT OF DISCHARGE NAMED HEREIN SHALL BE CONSIDERED COMPLETELY EARNED ON RECEIPT OF THE GOODS BY THE CARRIER, WHETHER THE FREIGHT BE STATED OR INTENDED TO BE PREPAID OR TO BE COLLECTED AT STINATION.' ITALICS SUPPLIED.) NO EVIDENCE HAS BEEN SUBMITTED IN SUPPORT OF THE SHIPPING COMPANY'S CONTENTION THAT THE SHIPPERS, THAT IS, THE AGENTS FOR THE EMPLOYEE IN RIO DE JANEIRO, SPECIFICALLY AND UNQUALIFIEDLY AGREED TO PAY FREIGHT ON THE FULL LOAD EXPECTED TO BE TRANSPORTED VIA THE S.S. SIGNEBORG, IRRESPECTIVE OF WHETHER THE ENTIRE LOAD ACTUALLY BE SHIPPED ON THAT VESSEL.

EXECUTIVE ORDER 9805, DATED NOVEMBER 25, 1946, AND RETROACTIVELY EFFECTIVE AS OF NOVEMBER 1, 1946, PROVIDES, IN MATERIAL PART, AS FOLLOWS:

SEC. 8. ORIGIN AND DESTINATION OF SHIPMENT. THE EXPENSES OF TRANSPORTATION AUTHORIZED HEREUNDER OR REIMBURSEMENT ON A COMMUTED BASIS WITHIN THE CONTINENTAL UNITED STATES SHALL BE ALLOWABLE WHETHER THE SHIPMENT ORIGINATES AT THE EMPLOYEE'S LAST OFFICIAL STATION OR AT SOME PREVIOUS PLACE OF RESIDENCE, OR PARTIALLY AT BOTH, OR WHETHER THE POINT OF DESTINATION IS THE NEW OFFICIAL STATION OR SOME OTHER POINT SELECTED BY HIM, OR BOTH: PROVIDED, THAT THE COST TO THE GOVERNMENT SHALL NOT EXCEED THE COST OF SHIPMENT IN ONE LOT BY THE MOST ECONOMICAL ROUTE FROM THE LAST OFFICIAL STATION TO THE NEW. * * *

SEC. 22. USE OF GOVERNMENT BILL OF LADING OR PURCHASE ORDER. SHIPMENT SHALL BE MADE ON GOVERNMENT BILL OF LADING OR PURCHASE ORDER WHENEVER POSSIBLE; OTHERWISE REIMBURSEMENT SHALL BE MADE TO THE EMPLOYEE FOR TRANSPORTATION EXPENSES ACTUALLY AND NECESSARILY INCURRED WITHIN THE LIMITATIONS PRESCRIBED BY THESE REGULATIONS. * * * ( ITALICS SUPPLIED.)

IT WOULD SEEM SUFFICIENTLY EVIDENT FROM THE ABOVE THAT HAD THE EFFECTS GONE FORWARD IN THE MANNER ORIGINALLY PLANNED, THE COST TO THE GOVERNMENT WOULD HAVE BEEN $1,633.46, WHICH SUM IS VIEWED AS THE COST OF SHIPMENT "IN ONE LOT BY THE MOST ECONOMICAL ROUTE" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 8 OF EXECUTIVE ORDER 9805. OF THAT SUM, PAYMENT OF $1,433.52 ALREADY HAS BEEN ACCOMPLISHED FROM GOVERNMENT FUNDS FOR SHIPMENT OF THE LIFT VAN VIA THE S.S. NILS GORTHON, LEAVING A POTENTIAL MAXIMUM BALANCE OF $199.94 DUE AND OWING FROM THE GOVERNMENT. THUS, THE PRIMARY QUESTION REMAINING FOR DETERMINATION IS WHETHER THE UNUSUAL FACTS OF THE INSTANT CASE ARE SUFFICIENT TO WARRANT A DEVIATION FROM THE NORMAL CRITERION SO AS TO JUSTIFY THE GOVERNMENT'S ASSUMING AN INCREASED OBLIGATION--- EITHER IN THE FULL AMOUNT OF THE EXCESS COST, OR IN THE AMOUNT OF THE COMPROMISE FIGURE SUBMITTED BY THE CARRIER--- THE DISCUSSION OF WHICH NECESSARILY WILL INCLUDE A DETERMINATION AS TO WHETHER THE GOVERNMENT PROPERLY MAY ASSUME PAYMENT OF ANY SUM IN THE FIRST INSTANCE, THAT IS, PRIOR TO DIRECT PAYMENT OF THE TRANSPORTATION COSTS BY THE EMPLOYEE TO THE SHIPPING COMPANY.

NOTHING IN THE RECORD INDICATES, OR SUGGESTS, THAT ANY OFFICIAL OR AGENT OF THE UNITED STATES GOVERNMENT WAS GUILTY OF NEGLIGENCE OR OTHER FAULT IN THIS MATTER. NEITHER DOES BLAME APPEAR TO REST WITH THE EMPLOYEE, HIS AGENTS, OR WITH THE CARRIER OR ITS AGENTS. ON THE CONTRARY, THE EVIDENCE ON FILE STRONGLY INTIMATES THAT THE ENTIRE RESPONSIBILITY FOR THE ADDITIONAL COST OF THE MOVEMENT OF THE EMPLOYEE'S EFFECTS LIES WITH ONE OR MORE OFFICIALS OR EMPLOYEES OF THE BRAZILIAN CUSTOMS HOUSE. UNDER THOSE CIRCUMSTANCES, NO REASON IS PERCEIVED WHY THE GOVERNMENT (AS DISTINGUISHED FROM THE CARRIER OR THE EMPLOYEE) SHOULD BEAR THE ADDITIONAL COSTS OF THE SHIPMENT OF THE EFFECT. IT IS REGRETTED THAT SUCH AN UNFORTUNATE SEQUENCE OF EVENTS OCCURRED, BUT SO FAR AS THE LEGAL LIABILITY OF THE GOVERNMENT IS CONCERNED, THAT PORTION OF THE STATED EVENTS WHICH CAUSED THE INCREASED COSTS IS INEFFECTUAL. MOREOVER, WHILE IT IS TRUE THAT GOVERNMENT OFFICIALS ENDEAVORED TO WORK OUT A SATISFACTORY SOLUTION AND ACTUALLY DID OBTAIN A COMPROMISE OFFER FROM THE CARRIER, THE STEPS SO TAKEN AND THE RESULT ACHIEVED MUST BE CONSIDERED AS HAVING BEEN PRIMARILY FOR THE BENEFITS OF THE EMPLOYEE.

THE WORDING OF SECTION 22 OF EXECUTIVE ORDER 9805, SUPRA, IS SUCH AS TO REQUIRE THE USE OF GOVERNMENT BILLS OF LADING FOR SHIPMENTS OF HOUSEHOLD EFFECTS FROM OR TO POINTS OUTSIDE THE CONTINENTAL UNITED STATES "WHENEVER POSSIBLE.' IN THE SUBJECT CASE, THE EFFECTS WERE MOVED ON COMMERCIAL BILLS OF LADING, BUT IT IS PRESUMED THAT DUE NOTICE WAS TAKEN OF THE RESTRICTIONS AND REQUIREMENTS OF THE APPLICABLE REGULATIONS, AND THAT THE USE THEREOF INSTEAD OF GOVERNMENT BILLS OF LADING WAS NECESSARY FOR THE SHIPMENTS INVOLVED. THE ABOVE-MENTIONED SECTION OF THE REGULATIONS PROVIDES A DEFINITE AND SPECIFIC PROCEDURE TO BE FOLLOWED WHEN EFFECTS ARE SHIPPED ON COMMERCIAL BILLS OF LADING, THAT IS, THE EMPLOYEE IS TO BE REIMBURSED FOR THE EXPENSES ACTUALLY AND NECESSARILY INCURRED FOR TRANSPORTATION OF HIS EFFECTS. PAYMENT TO THE CARRIER IS TO BE MADE BY THE EMPLOYEE WHO, IN TURN, MAY REQUEST REIMBURSEMENT FROM THE GOVERNMENT. HERE THE EMPLOYEE HAS NOT SETTLED THE CARRIER'S BILL, AND A CONTROVERSY EXISTS AS TO THE SUM ACTUALLY DUE THE CARRIER. UNDER THOSE CONDITIONS IT WOULD BE SETTING A DANGEROUS AND UNDESIRABLE PRECEDENT, AND WOULD APPEAR TO BE IMPROPER UNDER THE REGULATIONS, FOR THIS OFFICE TO AUTHORIZE PAYMENT OF THE SUM CLAIMED BY THE CARRIER.

WITH RESPECT TO ACCEPTING A COMPROMISE PAYMENT, YOU ARE ADVISED THAT IN LINE WITH THE VIEWS HEREINBEFORE EXPRESSED, IT NEED ONLY BE STATED THAT THE ACCEPTANCE OR REJECTION OF THE COMPROMISE OFFER OF THE CARRIER IS A MATTER FOR CONSIDERATION BY THE EMPLOYEE, NOT BY THIS OFFICE.