Trans Ocean Van Service v. United States

• Decision Date: 12 January 1973
• Docket Number: No. 137-66.,137-66.
• Parties: TRANS OCEAN VAN SERVICE v. The UNITED STATES.
• Court: U.S. Claims Court

200 Ct. Cl. 122, 470 F.2d 604 (1973)

TRANS OCEAN VAN SERVICE v. The UNITED STATES.

No. 137-66.

United States Court of Claims.

December 12, 1972.

As Amended January 12, 1973.

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Alan F. Wohlstetter, Washington, D. C., attorney of record, for plaintiff; Denning & Wohlstetter and Ernest H. Land, Washington, D. C., of counsel.

John Charles Ranney, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASIWA, KUNZIG, and BENNETT, Judges.

OPINION

COWEN, Chief Judge:^*

This is one of the more than 800 cases, involving more than 800,000 separate shipments, now pending before the court in which carriers of household goods belonging to military personnel have sued the Government for additional compensation in connection with the transportation of such household goods between points in the continental United States and points overseas under bills of lading issued by the Department of Defense. In accordance with former Rule 47(c), now Rule 131(c), an initial trial was held on the issues of law and fact relating to the right of the plaintiff to recover on its claims and the right of the defendant to recover on its counterclaims. The court's decision with respect to the liability issues delineated by the parties at the initial trial was rendered on May 15, 1970 (426 F.2d 329, 192 Ct.Cl. 75), and the case was remanded to the commissioner for further proceedings under Rule 131(c).

As the parties were unable to agree on the amounts of the recoveries that should be allowed on certain shipments under the court's decision of May 15, 1970, it was necessary to receive additional evidence and to go through a second set of formal post-trial procedures in accordance with Rule 134.

This opinion will be limited to a discussion of those points which are still in controversy between the parties. The details concerning the matters as to which the parties are in agreement will be set out in the findings of fact and need not be repeated here.

I. The "Diversion Without SIT" Claims

In the liability phase of this case one of the issues presented was whether, when a shipment arrived at the destination point and the carrier was directed to deliver the shipment to the property owner at a residential address not shown on the bill of lading, without an intervening period of storage-in-transit (SIT), there was a "diversion" of the shipment within the meaning of Item 150 of Military Basic Tender (MBT) No. 1. As indicated in findings of fact 27 and 29 of the decision on liability (426 F.2d 329, 339, 192 Ct.Cl. at 132 and 135), the term diversion is defined for the purposes of the present litigation as meaning "* * * any change from original delivery instructions, including consignment or reconsignment of a destination point after commencement of transportation service, when authorized by appropriate government transportation officer * * *" Emphasis added; and this is supplemented by an administrative regulation stating that any of the following actions affecting a shipment after it has been tendered to the carrier for transportation, and before it has been released from the custody of the carrier constitutes a diversion: (1) a change in the name of the consignor; (2) a change in the name of the consignee; (3) a change in the destination; (4) a change in the route, when requested by the transportation officer; or (5) any other instruction given to the carrier that is necessary to effect delivery and requires a change in the billing and/or an additional movement of the vehicle.

However, in the liability phase our attention was directed solely to a situation in which the residential address to which the carrier was instructed to deliver the shipment after arrival at the destination shown on the Government bill of lading (GBL), was in the same city in which was located the military installation shown as the destination. On those facts we held that there was no Item 150 diversion of the shipment merely because the owner's residential address was not set forth on the bill of lading but was given to the carrier after the shipment arrived at destination. We noted that MBT No. 1 and the regulations require the carrier to complete one delivery of the shipment at destination without compensation separate from the single factor rate for the line haul transportation of the shipment from point of origin to the destination point. We also pointed out that the parties understood at the time the carrier accepted custody of a shipment at the point of origin, the specific residential address of the property owner at or near his new military installation could not usually be ascertained until a later time. (426 F.2d at 342-344, 192 Ct.Cl. at 101-104.) Therefore, we determined that it was within the contemplation of the parties that when the carrier notified the transportation officer at the destination that the shipment had arrived, he would direct the carrier to a specific residential address on or near the installation, or alternatively, to storage-in-transit until a specific delivery address was ascertained; and that if the residential address was located in the same city as the installation (i. e., if it was at the destination point) there would be no diversion within the meaning of Item 150 of MBT No. 1. (Id.).

The question not resolved in the liability phase, but raised before the commissioner in the Rule 131(c) proceedings, is whether there is a diversion when, after the shipment has arrived at the GBL destination point, the carrier is directed by the transportation officer to deliver the shipment to a residential address (or other specific location) in a city near to but different from the town or city in which the military installation shown on the GBL is located. For example, the destination shown on the bill of lading for shipment 2 was Hickam Air Force Base (AFB), Hawaii, which the evidence shows to be located in Honolulu, Hawaii. When the carrier, as required by the GBL, notified the transportation officer at Hickam AFB of the arrival of the shipment, the plaintiff was directed to deliver shipment 2 to the property owner at a residential address located in Pearl City, Hawaii, approximately 10 miles distant from Hickam AFB. Plaintiff argues that on these facts a diversion of the shipment was ordered by the transportation officer and accomplished by plaintiff, compensable under Item 150D (in Supplement 8) of MBT No. 1. Plaintiff seeks the flat diversion fee of $5 plus a diversion mileage charge.

The commissioner denied plaintiff's claim for diversion compensation on shipment 2 (and similar claims respecting shipments 5, 16, 21, 23, 24, and 28). The commissioner concluded that a diversion would not occur when plaintiff was directed to deliver a shipment to a residential address in a town or city within a "reasonable commuting distance" of the military installation designated on the GBL as the destination.

However, subsequent to the time the commissioner filed his report on the Rule 131(c) proceeding in this case, we resolved a question substantially identical to the issue plaintiff raises with respect to shipment 2 in Global Van Lines, Inc. v. United States, 456 F.2d 717, 197 Ct.Cl. 575 (1972) (hereinafter referred to as Global). In Global the carrier claimed diversion compensation on shipment 6940, for which the destination shown on the GBL was Maxwell Air Force Base, Montgomery, Alabama. When the carrier notified the transportation officer that the shipment had arrived in Montgomery, the transportation officer ordered the carrier to deliver the shipment to the property owner at a residential address located in Prattville, Alabama. Prattville is located approximately 10 miles distant from Montgomery. We determined that the direction to the carrier to deliver the shipment to the owner's residence in Prattville, when performed, effected a diversion of that shipment. We rejected the Government's contention that before there could be a diversion there must be a change in the carrier's manner of handling a shipment, because that assertion is inconsistent with the definition of diversion (discussed supra) contained in defendant's own regulations. We also rejected the trial commissioner's determination that a diversion would not occur if the carrier was directed to deliver a shipment to a residential address in a city within a "reasonable commuting distance" of the military installation named on the GBL. We held that such a concept found no support in the applicable tariffs or regulations and presented too indefinite a standard for application to the varied situations presented by movements of household goods under Government bills of lading. (456 F.2d at 722-728, 197 Ct.Cl. at 586-597.) Turning to defendant's regulations (the same as are applicable in the instant case) we found that the term "destination" means a specific city in a specific state or country. (456 F.2d at 726, 197 Ct.Cl. at 593.) Since a diversion occurs when there is an ordered change in the destination, we concluded that when the carrier is ordered to deliver the shipment, after arrival at the destination, to a residence located in a town or city different from, albeit near to, the city in which the military installation shown on the GBL is located, a diversion compensable as an additional service (under the applicable tariff or tender) occurs. (456 F.2d at 728, 197 Ct.Cl. at 597.)

We conclude that our decision regarding shipment 6940 in Global is in all respects controlling in the instant proceeding with respect to shipment 2 (and similar shipments). Although shipment 6940 was not governed by the terms of Military Basic Tender No. 1, there is nothing in MBT No. 1 that serves to distinguish Global from this case.

Defendant contends that we should determine, with respect to all shipments delivered under the terms of MBT No. 1, that no...