Global Van Lines, Inc. v. United States

Davis, Judge,

dissenting in part:

I join in the court’s opinion and conclusions except for that portion of Part I, “Alleged Diversion to New Point Without 'SIT (Storage-in-Transit)”, which deals with shipment 6940 (and the corresponding part of the conclusion). The issue of delivery to a serviceman’s residence outside of *639 the particular city in which the military post happens to be located, as illustrated 'by shipment 6940, is indeed ticklish and Judge Durfee’s opinion exposes many of the problems. But the position adopted by the court, though perhaps easy of mechanical application, seems to me too technical and too heedless of the basic concept of the door-to-door service. That fundamental premise is that “in shipments not involving SIT * * * [the carrier] is obliged in consideration for the single-factor rate to ‘pick-up’ goods at the origin residence and ‘deliver’ these goods to the destination residence. In other words, the single-factor rate necessarily includes one ‘pick-up’ and one ‘delivery’ and all the land and water transportation in between * * *". Routed Thru-Pac, Inc. v. United States, 185 Ct. Cl. 428, 435 , 401 F. 2d 789, 793 (1968). Where it is transporting a serviceman’s goods to a new base under this system, the carrier normally expects, and is expected, to deliver those goods at the serviceman’s residence without extra payment. Everyone knows that the residential areas in which a serviceman stationed at a base may live (if he resides off-post) can be in the same city or outside it, depending on the local geographic and real estate development. A soldier at Fort McNair in Washington can just as easily live in Maryland or Virginia as in the District of Columbia, and in some instances will be closer to his work if he does. This obvious probability was doubtless known to the carriers when they undertook door-to-door service for military men being transferred to new posts, and I think they anticipated deliveries to those servicemen’s residences. 1

*640 Like the court, I find the idea of a “normal commuting distance” (which Commissioner White used) too vague and litigation-fraught. I would simply hold that, in a case like this where the consignment is to “S/Sgt. Theodore R. Moore, AF 17324220, USAF, Maxwell Air Force Base”, the normal assumption would be that Sergeant Moore is to be stationed at the Base, that if he lives off-post he will designate his residence, and that he will commute from there to Maxwell— and, accordingly, that the carrier’s normal obligation is to deliver to the home Sergeant Moore designates (in this case in Prattville). If the carrier suspects that the serviceman is not to be stationed at that particular Base but at another, or is retired, 2 or is really living on-post or not at home, it Can put the Government to proof. Those instances, I think, will be few compared to the numbers who will go daily or frequently to the base from the designated residence.

True, the bill-of-lading gives “Montgomery, Alabama” as the formal destination, but that was, in my view, simply to show the location of Maxwell Air Force Base. The court treats this whole problem 'as if “Maxwell Air Force Base” was not closely and importantly connected on the bill-of-lading with Sergeant Moore; the court’s result would be the same, I gather, if the consignment ran solely to “S/Sgt. Theodore K. Moore” (without any reference to Maxwell) and the destination Was “Montgomery, Alabama.” To me, on the other hand, it is very significant that Sergeant Moore is closely linked to Maxwell on the bill-qf-lading; this indicates that he was assigned and would undertake his duty there. 3 In the words of Commissioner White: “* * * the ‘destination’ under the government bill of lading was really the residence address where the property owner would live upon taking up his new duty assignment at Maxwell Air Force Base. The plaintiff knew that it could not completely *641 discharge its contract obligation until the household goods had been delivered to and placed in such residence * *

The alternative the court selects means that a diversion occurred because Sergeant Moore chose to live off-post in Prattville — despite the court’s difficulty, I have no trouble thinking of Prattville as in the metropolitan area of Montgomery — instead of in Montgomery itself. The analogue for the Washington metropolitan area could be the military doctor at Walter Eeed Hospital who decides to live in Silver Spring, Maryland, rather than in Foggy Bottom, or perhaps the naval physician at the Bethesda (Maryland) Naval Hospital who resides in the District of Columbia or Chevy Chase, Maryland, instead of in Bethesda. Such results seem to me haphazard and wholly unrelated to the underlying conception of this door-to-door service (where there is no storage-in-transit) . If the wording of the regulations compelled this conclusion, I would of course agree, but their generalities seem to me open to a more reasonable reading. 4

Nichols, Judge, joins in the foregoing dissenting opinion by Judge Davis.

If the serviceman is retired or assigned to another post, the use of “Maxwell Air Porce Base” on the bill-of-lading In connection with his name would be misleading.

If the property owner had been listed simply as “S/Sgt. Theodore R. Moore” and the destination as “Montgomery, Alabama”, I would agree with the court that a delivery In Prattville would be a diversion. In that Instance there would be nothing to indicate that the serviceman would be stationed at Maxwell Air Porce Base and therefore no reason to believe that he would reside anywhere other than in Montgomery proper.

My view would also dispose of shipment 6260 — dealt with in Part XIII of the court’s opinion (“Claims on Quantum Meruit Basis”)- — against the plaintiff, but I do not object to the way In which the court reaches that result through another route.