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WE HAVE RECONSIDERED OUR DECISION OF MAY 2. YOU URGE THAT THE GOVERNMENT IS TREATING THIS SHIPMENT OF HOUSEHOLD GOODS CARRIED UNDER GOVERNMENT BILL OF LADING NO. THE BILL WAS RENDERED AND PAID TO PACIFIC TERMINALS. ALTHOUGH DELIVERY OF GOODS IS A CONDITION PRECEDENT TO LIABILITY FOR THE PAYMENT OF FREIGHT CHARGES. THE CONTRACT WAS FOR THE THROUGH AND ENTIRE TRANSPORTATION OF HOUSEHOLD GOODS. WAS NOT FOR DELIVERY ONLY TO THE WAREHOUSE OF THE H. WHERE THE GOODS WERE DESTROYED BY FIRE AND NEVER DELIVERED TO ULTIMATE DESTINATION. THERE IS NO REMARK OR NOTATION ON THE BILL OF LADING TO SUPPORT YOUR CONTENTION THAT THE CONTRACT WAS SEVERABLE. SINCE PAYMENT WAS MADE BEFORE ULTIMATE DELIVERY. THERE IS.

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B-147908, AUG. 28, 1962

TO JOHNSON, JONSON AND INSLEE:

AS REQUESTED IN YOUR LETTER OF MAY 21, 1962, FILE NO. 5-29-4, WITH ENCLOSURE, WE HAVE RECONSIDERED OUR DECISION OF MAY 2, 1962, B-147908, WHICH SUSTAINED THE DISALLOWANCE OF $20.08 CLAIMED FOR ADDITIONAL WAREHOUSE HANDLING AND STORAGE-IN-TRANSIT CHARGES ALLEGED TO BE DUESMYTH WORLDWIDE MOVER, INC., SUCCESSOR TO PACIFIC TERMINALS, INC., ON A SHIPMENT OF HOUSEHOLD GOODS OWNED BY MAJOR CHARLES F. STECK III.

YOU URGE THAT THE GOVERNMENT IS TREATING THIS SHIPMENT OF HOUSEHOLD GOODS CARRIED UNDER GOVERNMENT BILL OF LADING NO. WY-5455255,"DOOR TO DOOR SERVICE REQUESTED," AS A SEVERABLE CONTRACT BECAUSE, BEFORE ULTIMATE DELIVERY OF GOODS TO MAJOR CHARLES F. STECK III, THE BILL WAS RENDERED AND PAID TO PACIFIC TERMINALS, INC., ALTHOUGH DELIVERY OF GOODS IS A CONDITION PRECEDENT TO LIABILITY FOR THE PAYMENT OF FREIGHT CHARGES.

THE BILL OF LADING, REQUIRED TO BE ISSUED FOR THIS SHIPMENT BY THE INITIAL CARRIER, GOVERNS THE ENTIRE TRANSPORTATION AND FIXES THE OBLIGATIONS OF ALL PARTICIPATING CARRIERS. THE CONTRACT WAS FOR THE THROUGH AND ENTIRE TRANSPORTATION OF HOUSEHOLD GOODS,"DOOR TO DOOR SERVICE" DELIVERY, FROM SAUMUR, FRANCE, TO ULTIMATE DESTINATION, FORT HUACHUCA, ARIZONA. THIS SHIPMENT, HOWEVER, WAS NOT FOR DELIVERY ONLY TO THE WAREHOUSE OF THE H. AND R. TRANSFER AND STORAGE COMPANY, SIERRA VISTA, ARIZONA, WHERE THE GOODS WERE DESTROYED BY FIRE AND NEVER DELIVERED TO ULTIMATE DESTINATION. THERE IS NO REMARK OR NOTATION ON THE BILL OF LADING TO SUPPORT YOUR CONTENTION THAT THE CONTRACT WAS SEVERABLE, SINCE PAYMENT WAS MADE BEFORE ULTIMATE DELIVERY. THERE IS, HOWEVER, EVERY INDICATION THAT THIS CONTRACT WAS A UNIFIED TRANSACTION TO PACK, TRANSPORT, STORE AND SUBSEQUENTLY DELIVER MAJOR STECK'S HOUSEHOLD GOODS TO HIS NEW DESTINATION, FORT HUACHUCA, ARIZONA; THE LAST PORTION OF THIS TRANSACTION, DELIVERY, WAS NEVER ACCOMPLISHED. PAYMENT, AS EVIDENCED BY THE BILL OF LADING'S CERTIFICATE OF DELIVERY AND THE CERTIFICATE OF STORAGE BEARING THE SIGNATURE OF YOUR REPRESENTATIVE, WAS CONTINGENT SOLELY UPON THE ULTIMATE DELIVERY OF THE CONSIGNEE. OTHERWISE, HAD PACIFIC TERMINALS, INC., COMPLETED ITS CONTRACT FOR THE DELIVERY OF THESE HOUSEHOLD GOODS, THERE WOULD HAVE BEEN NO CAUSE FOR YOUR AUTHORIZED REPRESENTATIVE TO DO A VAIN AND USELESS ACT BY COMPLETING THE STORAGE CERTIFICATE UNDER WHICH PACIFIC TERMINALS, INC., ASSUMED FULL CARRIER LIABILITY FOR THE SHIPMENT DURING SUCH STORAGE AND UNTIL DELIVERY TO THE CONSIGNEE WITHIN THE DESIGNATED PERIOD.

THE GENERAL RULE IS THAT DELIVERY TO THE CONSIGNEE IS THE LAST DUTY REQUIRED OF THE COMMON CARRIER. THE LAW IMPOSES THIS DUTY OF DELIVERY AS SOON AS THE CARRIER ACCEPTS THE GOODS, AND WHETHER SO EXPRESSED OR NOT, IT BECOMES A PART OF HIS CONTRACT. THE CARRIER MUST NOT ONLY DELIVER GOODS ENTRUSTED FOR CARRIAGE BUT BECOMES RESPONSIBLE FOR PROPER DELIVERY. CAVALLARO V. TEXAS P.RY.CO. 42 PAC. 918. MOREOVER, THE COMMON LAW RULE IS THAT A COMMON CARRIER BY LAND IS TO DELIVER GOODS TO THE "DOOR" OF THE CONSIGNEE, AND DELIVERY IS COMPLETE WHEN THERE IS NOTHING LEFT EXPRESS 104 F.SUPP. 809.

IN THIS INSTANCE, WE CONCLUDE THAT THE CONTRACT WAS NEVER COMPLETED FOR THE "DOOR TO DOOR" DELIVERY OF MAJOR STECK'S HOUSEHOLD GOODS, WHICH WERE IN STORAGE AND FOR WHICH CONTINGENT PAYMENT HAD BEEN MADE, SINCE FIRE DESTROYED THE HOUSEHOLD GOODS STORED IN THE WAREHOUSE. THEREFORE, THE CARRIER IS NOT ENTITLED TO ANY FREIGHT OR STORAGE CHARGES FOR THE COMPLETE FAILURE OF DELIVERY OF THE HOUSEHOLD GOODS TO THE ULTIMATE DESTINATION, SINCE THE LAW OF THIS COUNTRY IS THAT FREIGHT, BEING COMPENSATION FOR THE ACTUAL TRANSPORTATION OF GOODS, IS DUE ONLY IF THE GOODS ARE CARRIED TO DESTINATION. BURN LINE, LTD. V. UNITED STATES AND A.S.S.CO. 162 F. 298; DE SOLA ET AL. V. POMARES ET AL. 119 F. 373. FURTHERMORE, YOU HAVE FURNISHED NO PROOF OF SUCH SEVERABILITY OF THE CONTRACT AS WOULD ENTITLE YOU TO PAYMENT, AND THE BURDEN IS ON CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. COMP. GEN. 340; 18 ID. 980; 17 ID. 831. ALSO, SEE CHARLES V. UNITED STATES, 19 CT.CL. 316; AND LONGWILL V. UNITED STATES, 17 CT.CL. 288.

OUR RECORD NOW SHOWS THAT AN AMOUNT OF $1,023.08 HAS BEEN COLLECTED BY DEDUCTION FOR THIS SHIPMENT. ACCORDINGLY, WE FIND NO BASIS TO WARRANT A CHANGE OF OUR DECISION OF MAY 2, 1962, B-147908, WHICH IS HEREBY AFFIRMED.

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