B-125214, MARCH 28, 1956, 35 COMP. GEN. 524

B-125214, MARCH 28, 1956, 35 COMP. GEN. 524

PROPERTY - PRIVATE - DAMAGE, LOSS OR DESTRUCTION - IN TRANSIT - CARRIERS ENTITLEMENT TO PAYMENT FOR PARTIAL PERFORMANCE A CONTRACT BETWEEN THE GOVERNMENT AND A CARRIER FOR THE PACKING, CARTAGE, STORAGE AT POINT OR ORIGIN, AND SHIPMENT OF HOUSEHOLD EFFECTS TO A FINAL DESTINATION REQUIRES THE PERFORMANCE OF ALL THE DIFFERENT SERVICES AS A SINGLE UNIFIED TRANSACTION AND IS NOT A SEVERABLE CONTRACT SO AS TO ENTITLE THE CARRIER TO PAYMENT FOR THE SERVICES PERFORMED PRIOR TO THE DESTRUCTION OF THE SHIPMENT BY FIRE WHILE EN ROUTE TO FINAL DESTINATION.

TO NORTH AMERICAN VAN LINES, INC., MARCH 28, 1956:

WE HAVE YOUR LETTER OF NOVEMBER 29, 1955, PROTESTING THE NONPAYMENT OF CERTAIN PACKING, CARTAGE, AND STORAGE CHARGES. THESE CHARGES ARE ALLEGED TO HAVE ACCRUED IN CONNECTION WITH A SHIPMENT OF HOUSEHOLD GOODS OWNED BY SIGNALMAN FIRST CLASS THEODORE R. CURRIER.

THE RECORD SHOWS THAT THE TRANSPORTATION OFFICER AT FORT BENNING, GEORGIA, TENDERED "1 LOT HOUSEHOLD GOODS," WEIGHING 1,440 POUNDS, TO THE " NORTH AMERICAN VAN LINES ( SECURITY STORAGE AND MOVING SERVICE, AGENT)" AT COLUMBUS, GEORGIA, ON JULY 28, 1954, UNDER GOVERNMENT BILL OF LADING WY- 3821237. THE CONSIGNEE WAS SHOWN ON THE BILL OF LADING TO BE THEODORE R. CURRIER, AND THE DESTINATION AS MONTEREY, CALIFORNIA. THE BILL OF LADING BORE THE NOTATION THAT " STORAGE IN TRANSIT IS AUTH. AND WILL BE AT ORIGIN. NOT TO EXCEED 60 DAYS.' IN SUPPORT OF YOUR CLAIM, YOU FURNISHED A REPRODUCTION OF A DOCUMENT ENTITLED " ACCESSORIAL SERVICES CERTIFICATE," DATED JULY 28, 1954, WHICH SHOWS THE GOVERNMENT ACTIVITY OR INSTALLATION TO BE FORT BENNING, GEORGIA. IN THE SPACE HEADED " PLACE FROM," " COLUMBUS, GA.' WAS INSERTED; IN THE SPACE HEADED " TO," THERE WAS INSERTED " VIA SIT ( STORAGE IN TRANSIT) IN COLUMBUS, GA. THEN TO MONTEREY, CALIF.' THE CERTIFICATE SHOWS THE GOODS WERE PACKED FOR SHIPMENT AND STORED IN COLUMBUS FROM JULY 28, 1954, TO SEPTEMBER 11, 1954. ALL OF THE INFORMATION EXCEPT THE DATE THE STORAGE ENDED WAS TYPEWRITTEN UPON THE CERTIFICATE, PRESUMABLY WHEN IT WAS PREPARED. THE LATTER DATE WAS ADDED WITH PEN AND INK, APPARENTLY TO COMPLETE THE RECORD WHEN THE STORAGE TERMINATED. " NORTH AMERICAN VAN LINES, INC., " IS SHOWN ON THE CERTIFICATE AS THE " NAME OF CARRIER," AND THE " SIGNATURE AND TITLE OF CARRIER'S OFFICIAL" IS " SECURITY STG. AND MOVING SERVICE, J. E. LUNSFORD, ASST. MGR.'

THE RECORD SUGGESTS THAT THE HOUSEHOLD GOODS WERE PICKED UP BY THE CARRIER, TRANSPORTED TO ITS WAREHOUSE, THERE STORED IN TRANSIT, SUBSEQUENTLY PACKED FOR SHIPMENT, AND STARTED ON THEIR WAY TO MONTEREY, CALIFORNIA. SOMEWHERE EN ROUTE, WHILE IN THE CARRIER'S POSSESSION, THE SHIPMENT WAS TOTALLY DESTROYED BY FIRE.

THE REPRODUCTION OF THE SHIPPING ORDER COPY OF GOVERNMENT BILL OF LADING WY-3821237, SUBMITTED HERE IN SUPPORT OF YOUR CLAIM, SHOWS TOTAL CHARGES OF $330.88, COMPOSED OF TRANSPORTATION CHARGES OF $237.60, HAULING TO STORAGE $18, ACCESSORIAL CHARGES $63.76, AND TWO MONTHS' STORAGE AT 40 CENTS PER 100 POUNDS PER MONTH, $11.52. ACCORDING TO YOUR LETTER, YOU SUBMITTED YOUR BILL C-52839 FOR THESE CHARGES TO THE TRANSPORTATION DIVISION, FINANCE CENTER, U.S. ARMY. PAYMENT WAS REFUSED ON THE GROUND THAT FAILURE TO DELIVER VITIATES A TRANSPORTATION CONTRACT. APPARENTLY, YOU AGREE THAT THE GOVERNMENT IS NOT LIABLE FOR THE FREIGHT CHARGES, BUT YOU URGE THAT YOU ARE ENTITLED TO BE PAID $93.28, THE CHARGES FOR HAULING TO STORAGE, STORING, AND PACKING FOR SHIPMENT. YOUR CLAIM IS GROUNDED UPON THE FACT THAT THE CHARGES NOW CLAIMED ARE FOR SERVICES WHICH PRECEDED THE TRANSPORTATION AND WERE FULLY PERFORMED BEFORE THE GOODS ENTERED INTO THE COURSE OF TRANSPORTATION AND WERE DESTROYED.

THE CONTRACT IN THIS CASE WAS MADE FOR THE SOLE PURPOSE OF EFFECTING THE REMOVAL OF THEODORE R. CURRIER'S HOUSEHOLD GOODS FROM HIS PLACE OF ABODE IN COLUMBUS, GEORGIA, TO HIS NEW LOCATION IN MONTEREY, CALIFORNIA. CARRY OUT THIS OBJECTIVE, CERTAIN INCIDENTAL SERVICES-- DRAYAGE TO THE CARRIER'S WAREHOUSE, STORAGE AT THAT PLACE, AND PACKING FOR SHIPMENT--- WERE NECESSARY, IN ADDITION TO THE ACTUAL CARRIAGE. ALL OF THESE SERVICES WERE COVERED BY A SINGLE CONTRACT BETWEEN THE GOVERNMENT AND THE CARRIER. PARTICULARLY ILLUSTRATIVE OF THIS UNITY OF CONTRACT IS THE TENDER OF THE GOODS TO THE CARRIER ON BILL OF LADING WY 3821237 PRIOR TO THEIR REMOVAL FROM THEIR OWNER'S RESIDENCE, WITH REFERENCE ON THE BILL OF LANDING TO STORAGE AT ORIGIN. THE ACCESSORIAL SERVICES CERTIFICATE, DATED JULY 28, 1954--- THE DATE THE PROPERTY WAS TENDERED TO THE CARRIER--- ALSO SHOWED THAT THE SHIPMENT ORIGINATED AT COLUMBUS, GEORGIA, AND WAS DESTINED " VIA SIT IN COLUMBUS, GA., THEN TO MONTEREY, CALIF.' THUS, ALL OF THE SERVICES WERE KNOWN TO BE NEEDED, AND PROVISION WAS MADE FOR THEIR PERFORMANCE AS PART OF A SINGLE, UNIFIED TRANSACTION, AT THE TIME THE GOODS WERE TENDERED TO THE CARRIER.

THE LAW IS WELL SETTLED THAT WHEN GOODS TRANSPORTED ON A GOVERNMENT BILL OF LADING ARE LOST IN TRANSIT, THE CARRIER IS NOT ENTITLED TO FREIGHTAGE. ALCOA STEAMSHIP CO. V. UNITED STATES, 338 U.S. 421; STRICKLAND TRANSPORTATION CO. V. UNITED STATES, 223 F.2D 466. SINCE THESE HOUSEHOLD GOODS WERE NOT DELIVERED AT DESTINATION, THE GOVERNMENT IS NOT LIABLE FOR THE FREIGHT CHARGES, AND BECAUSE ALL OF THE SERVICES CALLED FOR WERE PART OF A SINGLE TRANSACTION, YOUR RIGHT TO RECOVER THE ACCESSORIAL CHARGES EXISTS ONLY IF THE CONTRACT MADE WAS SEVERABLE, RATHER THAN ENTIRE.

ONE TEST OF SEVERABILITY OF A CONTRACT IS WHETHER TWO OR MORE PROMISES ARE SO INTERDEPENDENT THAT THE PARTIES WOULD NOT HAVE ENTERED INTO ONE WITHOUT THE OTHER. LEEKER V. MARCOTTE, 15 P.2D 969; LINEBARGER V. DEVINE, 214 1. 532. IT HAS BEEN HELD, ALSO, THAT WHERE THERE IS A SINGLE ASSENT TO A WHOLE TRANSACTION INVOLVING SEVERAL THINGS OR SEVERAL KINDS OF PROPERTY, THE CONTRACT IS ALWAYS ENTIRE. ORENSTEIN V. KAHN, 119 A. 444, 446. SEE, ALSO, UNITED STATES V. BETHLEHEM STEEL CORP., 315 U.S. 289, IN WHICH THE GOVERNMENT SOUGHT TO SEVER A "HALF-SAVINGS CLAUSE" FROM A SHIP CONSTRUCTION CONTRACT, URGING THAT THE CLAUSE WAS UNENFORCEABLE AS HAVING NO CONSIDERATION, SINCE IT PLACED NO OBLIGATION ON THE CONTRACTOR. THE CONTRACT TERMS HAD PROVIDED FOR PAYMENT OF THE ACTUAL COST OF CONSTRUCTION PLUS A PROFIT BASED UPON A PREVIOUSLY SUBMITTED, APPROVED, AND ACCEPTED "ESTIMATED ACTUAL COST" FIGURE OR, IF THE TOTAL ACTUAL COST WAS LESS THAN THE "ESTIMATED ACTUAL COST," AT THAT TRUE ACTUAL COST PLUS THE AGREED PROFIT AND AN ADDITIONAL PROFIT OF ONE-HALF THE SAVINGS--- ONE-HALF THE DIFFERENCE BETWEEN THE TRUE ACTUAL COST AND THE "ESTIMATED ACTUAL COST.' IN REJECTING THE GOVERNMENT'S ARGUMENTS, THE SUPREME COURT SAID THAT:

WHETHER A NUMBER OF PROMISES CONSTITUTE ONE CONTRACT OR MORE THAN ONE IS TO BE DETERMINED BY INQUIRING "WHETHER THE PARTIES ASSENTED TO ALL THE PROMISES AS A SINGLE WHOLE, SO THAT THERE WOULD HAVE BEEN NO BARGAIN WHATEVER, IF ANY PROMISE OR SET OF PROMISES WERE STRUCK OUT.' * * * THE RECORD MAKES IT CLEAR THAT EACH OF THE CONTRACTS HERE WAS ASSENTED TO AS A SINGLE WHOLE, AND THAT CONSUMMATION OF A BARGAIN BETWEEN THE PARTIES DEPENDED UPON INCLUSION OF THE HALF-SAVINGS CLAUSE.

THE CONCLUSION SEEMS INESCAPABLE THAT THE PROMISES IN THE PRESENT CASE WERE INTERDEPENDENT--- THAT ONE WOULD NOT HAVE BEEN MADE WITHOUT THE OTHERS. THUS THE ENGAGEMENT TO TRANSPORT WOULD NOT HAVE BEEN MADE WITHOUT THE AGREEMENT TO STORE, SINCE ARRIVAL OF THE GOODS AT DESTINATION OBVIOUSLY WAS NOT DESIRED PRIOR TO SOME PARTICULAR TIME. THE PROMISE TO PACK FOR SHIPMENT WAS DEPENDENT UPON THE AGREEMENT TO CARRY, SINCE PACKING WOULD HAVE BEEN UNNECESSARY WITHOUT TRANSPORTATION; THE DRAYAGE ARGUMENT DEPENDED UPON THE PROMISES TO STORE, PACK, AND TRANSPORT, SINCE WITHOUT THESE PROMISES, DRAYAGE TO THE CARRIER'S WAREHOUSE WOULD HAVE BEEN UNNECESSARY. THE INTENTION OF THE PARTIES TO PUT THE GOODS IN THE CARRIER'S CUSTODY FROM THE VERY INSTANT OF PICK-UP AT ORIGIN UNTIL FINAL DELIVERY AT DESTINATION IS SHOWN BY THE TENDER AND ACCEPTANCE OF THE GOODS ON BILL OF LADING WY 3821237, WITH ITS REFERENCE TO THE STORAGE SERVICE. THE ACCESSORIAL SERVICES CERTIFICATE, SHOWING THE INTENDED CARRIAGE FROM COLUMBUS TO MONTEREY " VIA SIT IN COLUMBUS, GA. THEN TO MONTEREY, CALIF., " AND THE STORAGE DATES, ALSO EVIDENCES THE SINGLENESS OF PURPOSE AND UNIFICATION OF THE COMBINED SERVICES IN THIS CONTRACT. CLEARLY, THE PARTIES REALIZED THAT THE PERFORMANCE OF ONE OR MORE OF THE SERVICES, WITHOUT THE PERFORMANCE OF ALL, WOULD BE OF NO BENEFIT TO THE GOVERNMENT AND WOULD NOT BE A FULFILLMENT OF THE CARRIER'S UNDERTAKING.

THE RECORD AS PRESENTED HERE SHOWS THAT THE PARTIES ASSENTED TO THE PROMISES CONCERNING THE PERFORMANCE OF THE DIFFERENT SERVICES AS A SINGLE WHOLE; THAT CONSUMMATION OF A BARGAIN BETWEEN THE GOVERNMENT AND THE CARRIER DEPENDED UPON INCLUSION OF ALL OF THE SERVICES CALLED FOR; AND THAT FULFILLMENT OF THE CARRIER'S ENGAGEMENT REQUIRED COMPLETE PERFORMANCE OF EACH OF THE SERVICES. ACCORDINGLY, THE CONTRACT WAS ENTIRE AND NOT SEVERABLE; IN THE ABSENCE OF DELIVERY OF THE GOODS AT DESTINATION, THERE WAS NOT THE PERFORMANCE CALLED FOR BY THE CONTRACT, AND THE UNITED STATES IS NOT LIABLE FOR ANY PART OF THE CONTRACT PRICE.