the United States that may be filed by the officer-owner of the property damaged. In fact, it would seem most unfair to the United States to pay in full a van company for a faulty service, and also pay a damage claim to an officer-owner of the property moved (payment of which damage, when established under the Act of March 4, 1941 must be made) where the damage resulted from a faulty service of the said van company, thereby mulcting the United States in the amount of the allowed damage claim. It is possible, of course, though not probable, that the officer may not file a claim but it is submitted that that possibility should not cause the United States to assume a financial liability in a doubtful

case.

Aside from other important considerations, discussed hereinafter, it seems obvious that in any suit by a transportation company for transportation charges claimed to be due it under a contract with the United States for the transportation of the property of one in the military service, the United States would not be allowed any amount by way of set-off or counterclaim merely because of the possibility that the owner of the property might later assert a claim against the United States under the act of March 4, 1921, 41 Stat. 1436, since— even if the claim were otherwise proper for set-off-the sum which the United States later might be called upon to pay the owner of the property would not be liquidated and could not be determined by the court or any person or agency except the Secretary of War. It is well established that as a general rule the courts will not allow unliquidated claims to be set off and of course where the claim is not only unliquidated at the inception of a legal action but is not susceptible of exact determination by the court any offset would not be allowed.

In accordance with the express terms of the act of March 4, 1921, a person in the military service asserting a claim under that act on account of damage to his property alleged to have been incurred in connection with the transportation of such property by common carrier is entitled to payment only for the amount of his loss or damage in excess of the amount recoverable from the carrier (17 Comp. Gen. 780; B-16331, May 15, 1941; B-17584, July 11, 1941), and paragraph 4, Army Regulations 35-7100, provides that

the claimant [the owner of the property] will personally make demand in writing upon the last common carrier handling the shipment of personal effects for reimbursement for the resulting loss or damage within 9 months following the date of delivery of said shipment.

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and see 15 Comp. Dec. 38, July 16, 1908. The act of March 4, 1921, and its predecessors, were passed for the benefit of persons in the military service and did not intend that the Government should assume the liability which the law imposes upon carriers. The purpose of the statute was to authorize payments by the Government to cover losses which otherwise would fall upon military personnel, and, generally, it is to be presumed that any payments authorized

under the statute represent reimbursement for such losses only and do not cover loss or damage for which a common carrier could be held responsible. It thus appears that the amounts which the Secretary of War may determine to be allowable under the act of March 4, 1921, usually are additional to, and not in substitution for, amounts recoverable from common carriers, and that the mere fact that the Government may make a payment under the act of March 4, 1921, in a case involving transportation by common carrier, does not give rise to any cause of action in favor of the Government against the carrier. Obviously, if there is no cause of action, the courts would not recognize any right of set-off.

The nature of the relationship between the Government and a person in the military service whose property is being shipped at Government expense is discussed in 18 Comp. Gen. 164, which is, in part, as follows:

Army Regulations have required that if an officer wants the Government to assume the cost of transportation, he must turn his effects over to a quartermaster, if stationed where one is available, for shipment. The regulations have further required the quartermaster to ship the goods at released valuation by the route and method giving the lowest rate, specifically requiring the use of rail-water or rail-water-rail routing when available at less cost. It has always been believed that this was a mere authority to save the officer the expense of moving his household effects when official business required that he change stations.

*

The effects are the personal property of the officers. They are under no duty or obligation to turn them over to the Government for shipment. If they do so, from choice, to obtain the benefit of the Government paying the transportation costs, they do so subject to the statute and regulations governing the matter, of which they are chargeable with notice, and, therefore, assume any additional risk or hazards incident to the means of transportation required by the regulations. The Government would appear to be at most merely a bailee of the property for the benefit of the bailor, and, aside from statute, contractually liable only for the breach of an implied obligation to exercise ordinary care. Neither the statutes nor regulations purport to make the Government an insurer of such property voluntarily bailed to the Government for transportation for the benefit of the bailor. That such property may not legally be viewed as the property of the Government during transportation see Oregon-Washington Railroad & Navigation Company v. United States, 255 U. S. 339, and United States v. Galveston, Harrisburg & San Antonio Railway Company, 279 U. S. 401, holding the Government not entitled to land grant reductions on shipment of officers' effects and private mounts transported at Government expense because not the property of the United States.

In these cases where the Government contracts for the transfer of private property of persons in the military service it has never been considered that the Government is under any obligation to prosecute the loss or damage claim of the owner of the property against the carrier, and the Army Regulations, supra, require the owner personally to file his claim with the carrier before he is entitled to favorable consideration of his claim under the act of March 4, 1921.

The records you have submitted do not show clearly the extent of the property loss or damage which Second Lieutenant Hamlin claims to have suffered, and do not show that he has been reasonably diligent in perfecting his claim against the transportation company. As you have indicated, there is no certainty that he will make a claim against the United States under the act of March 4, 1921, and it is purely conjectural whether the Secretary of War would allow any part of his claim if he did make one. Furthermore, as pointed out above, any amount allowed by the Secretary of War presumably would be something in addition to the amount recoverable from the carrier and not in substitution there for.

According to the certificates and receipts accompanying your submission, the property of Second Lieutenant Hamlin actually has been transported as contemplated by the contract subject only to the exception noted on the receipt signed by the owner to the effect that four items were not received at destination in good order and condition. The Quartermaster Purchasing and Contracting Officer, Middletown Air Depot, has certified that the services called for by the contract (purchase order QM 1521 dated February 21, 1941) with Greyvan Lines, Inc., have been rendered in accordance with the terms of the contract and specifications governing same. The contract shows that the contractor has posted an annual performance bond with the Quartermaster General's Office in the amount of $1,000 for packing, transportation and delivery service. Also the contract contains a provision as follows:

Cargo Insurance. Each bid will contain a certificate of the carrier stating whether or not said carrier carries cargo insurance as security to compensate shippers or consignees for loss of or damage to property belonging to shippers or consignees and coming into the possession of said carrier in connection with its transportation service, and, if carried, the amount thereof; the policy number and date; and the name and address of the company or companies with which such insurance is carried.

There has been submitted a certificate signed by the agent of the contractor which is as follows:

Concerning Cargo Insurance and Tariff

Cargo Insurance is carried with National Fire Insurance Co. of Hartford, Conn., policy #1M-44287, 10/31/34; and covers to the extent of $.30 per pound per article.

We participate in the Household Goods Carriers' Bureau tariff #9.

In cases such as this it would seem the owner of the property has a reasonable assurance that any properly prosecuted valid claim he may have against the transportation company will be paid, and there appears no sufficient reason for authorizing any change in, or exception to, the long standing rule stated in paragraph 32c, Army Regulations 30-960, as follows:

c. Payment to carrier cannot be withheld or suspended.-There is no authority of law for withholding money due the carrier by the Government for the purpose of reimbursing the owner for loss or damage, nor for suspending payment of the carrier's bill until a claim is adjusted, and requests therefor will not be made. See 15 Comp. Dec. 38.

This has been the rule for many years where the shipment is by a common carrier by rail, and the liability of the Government in such a case under the act of March 4, 1921, is the same. No valid reason is perceived why the rule should be otherwise when the shipment is by motor trucks by a van line.

The voucher in favor of Greyvan Lines, Inc., is returned herewith and you are authorized to make payment thereon, if otherwise correct, without deduction of any amount on account of the alleged loss of or damage to the property of Second Lieutenant Hamlin.

(B-24773)

MILEAGE-TRAVEL BY PRIVATELY OWNED AUTOMOBILE JOINT

Where a Navy Department civilian employee, authorized to travel on a mileagefor-use-of-privately-owned-automobile basis, traveled in a Navy officer's automobile accompanied by the officer who has been paid mileage allowance under section 12 of the act of June 10, 1922, the civilian employee is entitled to payment of mileage for the use of the automobile upon certification that he paid the operating expenses thereof, regardless of whether payment of mileage allowance to the officer was proper. 20 Comp. Gen. 512, involving travel by two or more civilian employees in the same automobile, distinguished.

Comptroller General Warren to the Secretary of the Navy, April 1, 1942:

I have your letter of March 21, 1942, LL/L20-3(420312) S, MFL:kg, as follows:

Under orders of December 29, 1941, Mr. William B. Lurie, a civilian employee of the Navy Department on permanent duty at Washington, D. C., was ordered to proceed to various points in the States of Virginia, North and South Carolina, Georgia, and Florida for temporary duty in connection with obtaining magnetic compass data. As it was more economical and more advantageous to the Government and in view of the necessity of having with him certain equipment, including compass testing apparatus, Mr. Lurie was authorized to perform the travel by privately owned automobile and was allowed expenses on a mileage basis at the rate of 3%1⁄2 cents per mile for transportation. Upon completion of the temporary duty and on return to Washington, Mr. Lurie submitted a travel expense claim on which it was shown that in performing the ordered duty, Mr. Lurie used an automobile registered in the name of Lieutenant (j. g.) W. G. White, U. S. N. Mr. Lurie certified that he actually paid the operating expenses of the motor vehicle used, and that he had not recovered any part of such expenses in any manner whatsoever. However, in view of the statement that in the performance of the ordered duty he traveled in company with Lieutenant (j. g.) W. G. White, U. S. N., the claim was paid for per diem only on voucher No. 203623 February 1941, accounts of Stephen J. Brune, Captain (S. C.) U. S. N., and the sum of $100.87, covering 2,882 miles at 31⁄2 cents per mile, was withheld.

Upon investigation, it was found that Lieutenant White, under temporary duty orders of December 30, 1941, was ordered to proceed to the same points as named in Mr. Lurie's orders. The travel was completed and mileage claim, with the statement that no Government transportation was furnished, was

presented and paid under voucher No. 174573, January 20, 1942, accounts of Stephen J. Brune, Captain, (S. C.) U. S. N.

A supplemental claim, in the sum of $100.87, representing the amount withheld, as above stated, and eliminated from the original claim, has now been submitted by Mr. Lurie and your decision is requested as to whether, under the circumstances reported, payment of such supplemental claim should be made. For this purpose there is enclosed an extract from the claim of Mr. Lurie showing the expenses incurred.

The submitted extract from Mr. Lurie's claim (Standard Form 1012c-Revised) contains a certificate, as follows:

I further certify that I actually incurred or paid (except as otherwise explained) the actual operating expenses of the motor vehicle indicated, for which commutation is claimed on a mileage basis, and that I have not recovered any part of such expenses in any manner whatsoever, except as shown above. In the performance of the above mileage I traveled in company with Lt. (j. g.) W. G. White, Bureau of Ships, who has not paid, or will not pay, the amount of the deduction shown above, or will not claim reimbursement therefor.

The act of February 14, 1931, 46 Stat. 1103, as amended by section 9 of the act of March 3, 1933, 47 Stat. 1516, and as further amended by the act of April 25, 1940, 54 Stat. 167, provides:

That a civilian officer or employee engaged in necessary travel on official business away from his designated post of duty may be paid, in lieu of actual expenses of transportation, under regulations to be prescribed by the President, not to exceed 2 cents per mile for the use of a privately owned motorcycle or 5 cents per mile for the use of a privately owned automobile for such transportation, whenever such mode of travel has been previously authorized and payment on such mileage basis is more economical and advantageous to the United States.

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See, also, paragraph 12 (a) of the Standardized Government Travel Regulations as amended. 19 Comp. Gen. 984.

In decision of March 8, 1941, 20 Comp. Gen. 512, wherein was considered the above-quoted statute and the cited regulations with reference to travel by two or more civilians in a privately owned automobile, it was held (quoting from the syllabus):

Where two or more civilian employees perform an official trip in a privately owned automobile, only one of them may be reimbursed on a mileage basis. 8 Comp. Gen. 134, involving a money allowance to Navy enlisted men, distinguished.

That rule, however, is not applicable in this case because here the other traveler was not a civilian employee but an officer of the Navy whose mileage allowance is for consideration under another statute, to wit, section 12 of the act of June 10, 1922, 42 Stat. 681, as amendedby the act of June 1, 1926, 44 Stat. 680. The propriety of the payment of mileage to the naval officer under the stated facts and circumstances will be for consideration in the audit of the accounts of the disbursing officer involved.

In decision of June 18, 1941, 20 Comp. Gen. 913, it was held (quoting from the syllabus):

A Government employee may not be paid mileage, under the act of February 14, 1931, as amended, for travel by a privately owned automobile not his property without a showing that such use of the automobile involved some actual expense on his part, for example, that he paid the whole or a substantial part