B-175484, JUL 26, 1972

B-175484, JUL 26, 1972

MILITARY PERSONNEL - SHIPMENT OF HOUSEHOLD GOODS - EXCESS WEIGHT CHARGES - USE OF PRIOR SHIPMENT WEIGHTS DENIAL OF REQUEST BY CAPT. ROBERT C. GIBSON, USN, FOR RECONSIDERATION OF A SETTLEMENT BY CLAIMS DIVISION WHICH DISALLOWED A CLAIM FOR REFUND OF $719.53, COLLECTED TO COVER EXCESS COSTS IN THE SHIPMENT OF HOUSEHOLD EFFECTS INCIDENT TO ORDERS OF AUGUST 30, 1967. THE QUESTION OF WHETHER AUTHORIZED SHIPPING WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD GOODS, AND THE EXCESS CHARGES THEREFOR, IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND GAO IS WITHOUT AUTHORITY TO QUESTION SUCH A DETERMINATION IN THE ABSENCE OF EVIDENCE CLEARLY SHOWING THAT DETERMINATION TO BE IN ERROR. UNDER THE CIRCUMSTANCES OF THIS CASE, IT CANNOT BE CONCLUDED THAT THE DETERMINATION WAS CLEARLY ERRONEOUS. FURTHER, THE WEIGHT OF PRIOR OR SUBSEQUENT SHIPMENTS OF SIMILAR HOUSEHOLD GOODS MAY NOT BE USED IN DETERMINING THE EXCESS WEIGHT OF THE SHIPMENT IN QUESTION.

TO CAPTAIN ROBERT C. GIBSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 15, 1972, REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR CLAIMS DIVISION DATED OCTOBER 6, 1971, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $719.53, COLLECTED TO COVER EXCESS COSTS IN THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS INCIDENT TO ORDERS OF AUGUST 30, 1967.

INCIDENT TO ORDERS DATED AUGUST 30, 1967, DIRECTING A PERMANENT CHANGE OF STATION FROM THE U.S. NAVAL STATION, SANGLEY POINT, REPUBLIC OF THE PHILIPPINES, TO COMMANDER, AMPHIBIOUS SQUADRON TWO, AND FURTHER DIRECTING YOU TO REPORT AT NORFOLK, VIRGINIA, FOR TEMPORARY DUTY EN ROUTE TO YOUR NEW STATION, YOU FILED SIX APPLICATIONS FOR THE MOVEMENT OF YOUR PERSONAL BAGGAGE, PROFESSIONAL BOOKS AND EQUIPMENT AND OTHER HOUSEHOLD EFFECTS TO NORFOLK, VIRGINIA, THE HOME PORT OF THE VESSEL TO WHICH ASSIGNED.

THE PRINCIPLE SHIPMENT (SHIPMENT NO. 2, APPLICATION DATED OCTOBER 23, 1967) WAS BY WATER TRANSPORTATION FROM SANGLEY POINT TO NORFOLK, VIRGINIA. IT CONSISTED OF A GROSS WEIGHT OF 23,950 POUNDS OF EFFECTS, INCLUDING 1,000 POUNDS OF PROFESSIONAL BOOKS, WITH A NET WEIGHT OF 13,590 POUNDS.

SHIPMENT NO. 1 (APPLICATION DATED OCTOBER 23, 1967) WHICH WEIGHED 1,365 POUNDS GROSS AND 819 POUNDS NET, WAS MADE BY AIR FROM SANGLEY POINT TO NORFOLK. SHIPMENT NO. 3, ALSO BY APPLICATION DATED OCTOBER 23, 1967, WAS BY WATER BETWEEN THESE POINTS AND WEIGHED 1,510 POUNDS GROSS AND 901 POUNDS NET.

BY PAY ADJUSTMENT AUTHORIZATION DATED JANUARY 3, 1969, A COMPUTATION OF THE TOTAL WEIGHT SHIPPED IN THOSE THREE SHIPMENTS SHOWED A NET WEIGHT OF 15,310 POUNDS SHIPPED. SHIPMENT NO. 2 (THE LARGEST) WAS SHOWN TO CONSIST OF 23,130 POUNDS GROSS WEIGHT IN 16 LIFT VANS PLUS 820 POUNDS GROSS WEIGHT (OVERFLOW) IN CRATES. THE 820 POUND LOT WAS REDUCED BY 40 PERCENT AND THE 23,130 POUND LOT WAS REDUCED BY THE TARE WEIGHT OF THE LIFT VANS, THE 1,000 POUNDS OF PROFESSIONAL BOOKS AND 15 PERCENT FOR PACKING MATERIAL. THE NET TOTAL CHARGEABLE TO YOUR WEIGHT ALLOWANCE ON THAT SHIPMENT WAS SHOWN TO BE 13,590 POUNDS NET. THE NET OVERALL WEIGHT OF 15,310 POUNDS EXCEEDED YOUR WEIGHT ALLOWANCE AS CAPTAIN (NAVY) OF 13,500 POUNDS BY 1,810 POUNDS, WHICH TOGETHER WITH 319 POUNDS OF PACKING MATERIAL ATTRIBUTABLE TO THE EXCESS WEIGHT, TOTALED 2,129 POUNDS EXCESS, THE COST OF WHICH WAS DETERMINED TO BE $501.82.

A SUBSEQUENT SHIPMENT DATED NOVEMBER 1, 1967, INVOLVING 110 POUNDS OF PERSONAL BAGGAGE WAS MADE BY AIR FROM SANGLEY POINT TO THE USS CHILTON, AT NORFOLK, VIRGINIA. THIS WAS NOT CHARGED AGAINST YOUR WEIGHT ALLOWANCE. SHIPMENT NO. 4, PURSUANT TO APPLICATION DATED NOVEMBER 29, 1967, WHICH WAS MADE BY WATER FREIGHT FROM HONOLULU, HAWAII, TO THE BROOKS TRANSFER AND STORAGE CO., VIRGINIA BEACH, VIRGINIA, HAD A GROSS WEIGHT OF 546 POUNDS. SHIPMENT NO. 5, INCIDENT TO APPLICATION DATED MARCH 11, 1968, WAS MADE BY VAN FROM NONTEMPORARY STORAGE IN NEWPORT, RHODE ISLAND, TO NORFOLK, VIRGINIA, AND INVOLVED GOODS WEIGHING 1,020 POUNDS. SINCE YOUR WEIGHT ALLOWANCE HAD ALREADY BEEN EXCEEDED, BY PAY ADJUSTMENT DATED MARCH 2, 1971, YOU WERE CHARGED WITH THE ENTIRE COST OF THOSE TWO SHIPMENTS IN THE AMOUNT OF $217.71. THE COMBINED EXCESS COSTS OF THE FIVE SHIPMENTS CHARGED TO YOU AMOUNTED TO $719.53.

IN A LETTER DATED JANUARY 30, 1969, YOU REQUESTED RECONSIDERATION OF THE EXCESS COST INVOLVED IN THE FIRST THREE SHIPMENTS. YOU SAID THAT THE REWEIGHS SHOWED A TOTAL OF 17,820 NET WEIGHT AS CONTRASTED TO THE 15,590 (15,310) USED IN THE COMPUTATIONS. HOWEVER, YOU TOOK ISSUE WITH THAT RESULT, SAYING THAT THE REWEIGHS WERE NOT WITNESSED BY YOU OR THE NAVY INSPECTOR, THAT SOME PACKING MATERIAL WAS NOT REWEIGHED AND THAT THE ARITHMETIC OF THE REWEIGHS WAS QUESTIONABLE. YOU ALSO ALLEGED THAT EVERY ITEM WAS OVERPACKED AND YOU MADE A COMPARISON WITH THE SHIPMENT OF THOSE EFFECTS TO THE PHILIPPINES, WHICH YOU SAID TOTALED 8,500 POUNDS AND SAID FURTHER THAT ALTHOUGH THE TOTAL WAS CHANGED BY DECREASES AND INCREASES, THIS DID NOT ACCOUNT FOR AN INCREASE FROM 8,500 POUNDS TO 15,310 POUNDS. YOU THEN REQUESTED THAT A FURTHER EXAMINATION BE MADE IN THE MATTER.

BY LETTERS DATED JULY 16 AND 20, 1970, YOU WERE ADVISED BY THE NAVY REGIONAL FINANCE CENTER, WASHINGTON, D.C., THAT A REVIEW OF YOUR SHIPMENTS SHOWED THEY WERE PROPERLY WEIGHED AND THE REWEIGHS WERE SUPPORTED BY WEIGHT CERTIFICATES FURNISHED BY THE CONTRACTOR. YOU WERE ADVISED FURTHER THAT THERE WAS NO PRACTICAL WAY TO DETERMINE THE EFFECT ON THE TOTAL WEIGHT OF SHIPMENTS OF HOUSEHOLD GOODS WHEN A COMPARISON IS MADE BETWEEN ONE SHIPMENT AND PREVIOUS OR SUBSEQUENT SHIPMENTS OF A MEMBER'S HOUSEHOLD GOODS.

IN A LATER LETTER DATED FEBRUARY 10, 1971, THE NAVY REGIONAL FINANCE CENTER, REPLIED TO YOUR SUBSEQUENT CONTENTION THAT EXCESSIVE OVERPACKING WAS INVOLVED, STATING THAT THE TRANSPORTATION OFFICER AT SANGLEY POINT HAD ADVISED THERE WAS NO EVIDENCE OF SUCH OVERPACKING. IT STATED FURTHER THAT SHIPMENTS NO. 4 AND NO. 5 WERE COMPLETELY EXCESS AND THERE WAS NO BASIS UPON WHICH ANY ADJUSTMENT MAY BE MADE. IT ADVISED YOU THAT THESE EXCESS COSTS WOULD BE CHECKED AGAINST YOUR PAY RECORD.

BY LETTER DATED MARCH 29, 1971, YOU MADE CLAIM FOR REFUND OF THE EXCESS COSTS TOTALING $719.53, CHECKED IN YOUR ACCOUNT. YOU INDICATED THAT YOUR EFFECTS WEIGHED BETWEEN 13,000 AND 13,900 POUNDS WHEN SHIPPED IN 1969 TO WASHINGTON, D.C. YOU FURNISHED INVENTORIES OF SHIPMENTS MADE IN 1967 AND 1969, LISTING INVENTORY CHANGES DUE TO DISPOSALS AND ADDITIONS WHILE YOU WERE IN VIRGINIA BEACH, VIRGINIA, AND CERTIFIED THAT THE ACTUAL WEIGHT OF THE EFFECTS SHIPPED TO WASHINGTON IN 1969 WAS MORE THAN THAT SHIPPED TO VIRGINIA BEACH IN 1967. YOU THEN CONTENDED THAT THE CAUSE OF THE ALLEGED EXCESS IN GROSS WEIGHT IN THE 1967 SHIPMENTS MUST BE ATTRIBUTED TO OVERPACKING, INADEQUATE REWEIGHS OR A COMBINATION OF BOTH. YOU CONTENDED FURTHER THAT THE ALLEGED OVERWEIGHT OF THE SHIPMENTS IN 1967 WAS SO GROSSLY ABOVE THE PRIOR AND SUBSEQUENT SHIPMENTS AS TO BE CLEARLY BEYOND REASON.

BY LETTER DATED APRIL 5, 1971, YOUR CLAIM WAS TRANSMITTED TO OUR CLAIMS DIVISION FOR SETTLEMENT AND BY SETTLEMENT DATED OCTOBER 6, 1971, YOUR CLAIM WAS DISALLOWED FOR THE REASONS THEREIN STATED. IN YOUR LETTER DATED MARCH 15, 1972, YOU REQUESTED OUR OFFICE TO CONSIDER THE "REASONABLENESS" OF THE FACTS USED TO ASSESS THE CHECK AGES AND DETERMINE THAT THE 1967 SHIPMENTS WERE IN ALL PROBABILITY NOT OVERWEIGHT.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES TO AND FROM SUCH PLACES AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED.

IMPLEMENTING REGULATIONS CONTAINED IN THE JOINT TRAVEL REGULATIONS INCLUDE PARAGRAPH M8002 WHICH PROVIDES THAT WHEN THE ACTUAL NET WEIGHT OF UNPACKED AND UNCRATED HOUSEHOLD GOODS IS NOT KNOWN AND THE SHIPMENT IS MADE IN CRATED CONDITIONS BY MOTOR, RAIL, WATER, OR AIR FREIGHT, BY FREIGHT FORWARDERS OR BY COMBINATIONS THEREOF, THE NET WEIGHT OF THE HOUSEHOLD GOODS CHARGEABLE AGAINST THE MEMBER'S PRESCRIBED WEIGHT ALLOWANCE WILL BE DETERMINED BY SUBTRACTING 40 PERCENT FROM THE GROSS WEIGHT OF SUCH SHIPMENTS. WITH ESPECIALLY DESIGNED CONTAINERS, THE NET WEIGHT WILL BE DETERMINED BY SUBTRACTING THE EMPTY OR TARE WEIGHT OF THE CONTAINER FROM THE GROSS WEIGHT OF THE LOADED CONTAINER, REDUCED BY 15 PERCENT TO ALLOW FOR WEIGHT OF PACKAGING MATERIALS WITHIN THE CONTAINER.

PARAGRAPH M8007-2 OF THE REGULATIONS PROVIDES THAT THE GOVERNMENT'S MAXIMUM TRANSPORTATION OBLIGATION IS THE COST OF A THROUGH SHIPMENT OF A MEMBER'S PRESCRIBED WEIGHT ALLOWANCE IN ONE LOT BETWEEN AUTHORIZED PLACES, AND THE MEMBER WILL BEAR ALL TRANSPORTATION COSTS ARISING FROM SHIPMENT IN MORE THAN ONE LOT FOR WEIGHTS IN EXCESS OF THE PRESCRIBED MAXIMUM ALLOWANCE.

THE QUESTION OF WHETHER AND TO WHAT EXTENT AUTHORIZED SHIPPING WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD EFFECTS AND THE EXCESS COSTS INVOLVED ARE CONSIDERED TO BE MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WE ARE WITHOUT AUTHORITY TO QUESTION AN ADMINISTRATIVE DETERMINATION IN THAT REGARD IN THE ABSENCE OF EVIDENCE CLEARLY SHOWING THAT DETERMINATION TO BE IN ERROR. IN THAT REGARD, IT HAS BEEN ADMINISTRATIVELY REPORTED THAT REWEIGHS HAVE BEEN MADE OF SEVERAL OF YOUR SHIPMENTS, INCLUDING THE ONE CONCERNING THE MAJOR PORTION OF YOUR HOUSEHOLD GOODS. THE REPORT STATED FURTHER THAT A REVIEW OF THE SHIPMENTS, INCLUDING REWEIGHS, REVEALED THAT YOUR SHIPMENTS WERE PROPERLY WEIGHED AND WERE SUPPORTED BY WEIGHT CERTIFICATES FURNISHED BY THE CONTRACTORS. WHILE THE REPORT ON THE REWEIGH OF THE LARGEST SHIPMENT SHOWS A GREATER OVERALL WEIGHT THAN THAT ORIGINALLY USED IN THE COMPUTATION OF THE EXCESS WEIGHT, THIS DID NOT AFFECT THE COMPUTATION OF THE EXCESS COSTS, SINCE THE ORIGINAL WEIGHTS SHOWN WERE THOSE ON WHICH THE CARRIERS WERE PAID.

WHILE THE WEIGHT OF THE CRATING AND PACKING MATERIAL FOR HOUSEHOLD GOODS SHIPPED MAY VARY FROM SHIPMENT TO SHIPMENT, NEITHER THE OVERALL WEIGHT OF THE SUBSEQUENT OR A PRIOR SHIPMENT OF THOSE GOODS MAY BE USED IN DETERMINING THE EXCESS COST OF THE SHIPMENTS UNDER CONSIDERATION, PARTICULARLY WHEN THOSE SHIPMENTS HAD BEEN MADE OVER EXTENDED PERIODS, UNDER DIFFERENT CIRCUMSTANCES AND INCLUDE SITUATIONS INVOLVING INCLUSIONS AND EXCLUSIONS OF CERTAIN HOUSEHOLD ITEMS. THEREFORE, YOUR STATEMENTS AS TO THE WEIGHT OF YOUR EFFECTS WHEN SHIPPED TO THE PHILIPPINES PRIOR TO 1967 OR WHEN SHIPPED TO WASHINGTON, D.C., IN 1969 MAY NOT BE CONSIDERED IN DETERMINING THE WEIGHT OF THE 1967 SHIPMENTS.

REGARDING YOUR STATEMENTS AS TO THE EXTENSIVE OVERPACKING OF HOUSEHOLD GOODS, THE NAVY REGIONAL FINANCE OFFICE REPORTED THAT THERE WAS NO EVIDENCE OF SUCH OVERPACKING AND NO ADJUSTMENT IN THE PRESCRIBED ALLOWANCES WAS AUTHORIZED. THEREFORE, UNDER THE CIRCUMSTANCES DISCLOSED, WE FIND NO BASIS TO CONCLUDE THAT THE WEIGHTS USED IN THE ADMINISTRATIVE COMPUTATION OF THE EXCESS COSTS WERE NOT REASONABLE. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 6, 1971, IS SUSTAINED.