B-143224, OCT. 18, 1962

B-143224, OCT. 18, 1962

TO SOUTHERN PLAZA EXPRESS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1962, FILE NO. O/C 1365-49, WHEREIN YOU REQUESTED RECONSIDERATION OF THAT PORTION OF OUR DECISION OF JULY 31, 1962, B-143224, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $550 ON BILL NO. 11946-B, AS ADDITIONAL FREIGHT CHARGES DUE FOR THE ALLEGED PERFORMANCE OF EXCLUSIVE-USE-OF VEHICLE SERVICE ON A SHIPMENT OF ELECTRICAL GENERATORS THAT MOVED DURING JANUARY 1957, FROM SAN DIEGO, CALIFORNIA, TO SAN ANTONIO, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. AF-6992603. THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS RECEIVED AT ORIGIN BY WESTERN TRUCK LINES AND DELIVERED AT DESTINATION BY SOUTHERN PLAZA EXPRESS.

IN OUR DECISION OF JULY 31, 1962, WE INFORMED YOU OF THE REPORT THAT THE SUBJECT SHIPMENT HAD BEEN TRANSFERRED FROM ONE VEHICLE TO ANOTHER EN ROUTE, AND, SINCE NO REASON WAS GIVEN WE CONCLUDED THAT THE TRANSFER WAS TO A PARTIALLY LOADED VEHICLE AND THAT EXCLUSIVE-USE SERVICE HAD NOT BEEN PERFORMED AS ALLEGED. WITH YOUR LETTER OF AUGUST 15, 1962, YOU FURNISHED A COPY OF A LETTER DATED JULY 6, 1962, ADDRESSED TO MR. W. B. MCKINNEY, CHIEF, TRAFFIC SERVICES DIVISION, WESTERN TRAFFIC REGION OF THE DEFENSE TRAFFIC MANAGEMENT SERVICE, BY MR. WILLIAM R. ALLISON OF WESTERN TRUCK LINES. MR. ALLISON STATES, IN EFFECT, THAT DUE TO THE LIMITATIONS OF THE EQUIPMENT AVAILABLE A TRANSFER OF THE LADING WAS NECESSARY IN ORDER TO COMPLY WITH THE TEXAS LAW REGARDING WEIGHT DISTRIBUTION. MR. ALLISON FURTHER REFERS TO NOTE 5, ITEM 935 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TERRITORIAL DIRECTORY NO. 20-A, MF-I.C.C.NO. 79, WHICH SPECIFIES THAT TRANSFERS OF LOADS EN ROUTE WILL NOT NULLIFY OR VOID THE EXCLUSIVE-USE ANNOTATION ON THE BILL OF LADING.

MR. MCKINNEY HAS NOT MADE ANY FURTHER REPORT TO US IN THIS MATTER. WHILE UNDER THE TERMS OF THE TARIFF AN EXCLUSIVE-USE REQUEST IS NOT NULLIFIED BY AN EN ROUTE TRANSFER OF THE LADING, A CARRIER WHO SEEKS TO COLLECT CHARGES ON THE BASIS OF SUCH PREMIUM SERVICE MUST NEVERTHELESS PROVE THAT SUCH SERVICE WAS PERFORMED. GENERALLY, EVIDENCE OF A CLEAR SEAL RECORD IS REGARDED AS ADEQUATE PROOF IN THIS REGARD, BUT SUCH PROOF OBVIOUSLY IS NOT AVAILABLE IN THIS CASE, DUE TO THE NATURE OF THE REPORTED ARRANGEMENTS FOR TRANSFER OF LOAD. IN THE ABSENCE OF A CLEAR SEAL RECORD, SATISFACTORY PROOF OF PERFORMANCE MIGHT CONSIST OF ROAD MANIFESTS OR SIMILAR DOCUMENTS PREPARED BY YOU AND YOUR CONNECTING CARRIER IN THE REGULAR COURSE OF BUSINESS SHOWING THAT NO OTHER FREIGHT WAS TRANSPORTED IN THE TRAILERS CONTAINING THE GOVERNMENT SHIPMENT.

SINCE YOU HAVE NOT AT THIS TIME SUBMITTED PROOF OF PERFORMANCE OF THE SERVICE REQUESTED, WE AFFIRM OUR PRIOR CONCLUSION SUSTAINING THE SETTLEMENT ACTION WHICH DISALLOWED YOUR CLAIM FOR $550 ON BILL NO. 11946- B. ..END :