B-144154, APR. 2, 1962

B-144154, APR. 2, 1962

TO WESTERN TRUCK LINES, LTD.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8, 1961, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 26, 1961, IN WHICH WE SUSTAINED THE SETTLEMENT ACTION DISALLOWING YOUR CLAIM 6-02068 FOR $107.02 ADDITIONAL CHARGES FOR THE TRANSPORTATION OFA SHIPMENT OF FOODSTUFFS FROM LYOTH, CALIFORNIA, TO PICKEL MEADOWS, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING WY-8372930, DURING JANUARY 1958.

FOR THIS SERVICE YOU CLAIMED AND WERE PAID ON THE BASIS OF A COMBINATION OF RATES MADE OVER STOCKTON, CALIFORNIA, CONSIDERING DELTA LINES, INC., AND YOUR COMPANY AS PARTICIPATING IN A JOINT HAUL, WHILE IN OUR AUDIT THE CHARGES WERE COMPUTED BY USE OF A THROUGH RATE APPLICABLE ONLY TO A SINGLE -LINE SERVICE PERFORMED BY YOUR COMPANY. UPON YOUR FAILURE TO REFUND THE DIFFERENCE, A DEDUCTION OF $107.02 WAS MADE FROM ONE OF YOUR UNPAID BILLS.

YOU CONTENDED IN YOUR LETTER OF SEPTEMBER 29, 1960, THAT THE SHIPMENT WAS NOT TENDERED TO YOUR COMPANY BUT WAS TENDERED TO DELTA LINES, WHICH YOU SAID DID NOT ACT AS YOUR AGENT NOR HAS EVER ACTED AS YOUR AGENT IN CONNECTION WITH EITHER INTRASTATE OR INTERSTATE TRAFFIC. THE INVOLVED BILL OF LADING SHOWED YOUR COMPANY (1) AS INITIAL TRANSPORTATION COMPANY, (2) AS THE SOLE CARRIER NAMED IN THE ROUTING INSTRUCTIONS, AND (3) AS RECEIPTING FOR THE SHIPMENT, WITH THE NAME "DELTA" WRITTEN IN THE SPACE RESERVED FOR THE "SIGNATURE OF AGENT.' THE OAKLAND REGIONAL OFFICE OF THE MILITARY TRAFFIC MANAGEMENT AGENCY (NOW DEFENSE TRAFFIC MANAGEMENT SERVICE) REPORTED THAT THE SHIPPER'S RECORDS INDICATED THAT THE SHIPMENT WAS ACTUALLY TENDERED TO YOUR COMPANY AND THAT IN AN INVESTIGATION WITH DELTA, DELTA INFORMED THEM THAT IT HAD RECEIVED A REQUEST FROM MR. BERG, THE LOCAL AGENT FOR YOUR COMPANY, ASKING DELTA TO PICK UP THE SHIPMENT FOR YOUR COMPANY. ACCORDINGLY, IN OUR DECISION OF JUNE 26, 1961, WE HELD THAT IN VIEW OF THE CONFLICTING STATEMENTS OF THE ADMINISTRATIVE OFFICE AND YOUR COMPANY AS TO THE ARRANGEMENTS MADE FOR THE PICKUP OF THIS SHIPMENT, CONSIDERED TOGETHER WITH THE INFORMATION CONTAINED ON THE ACCOMPLISHED BILL OF LADING INDICATING THE TENDER OF THIS SHIPMENT TO YOUR COMPANY INITIALLY, WE HAD NO RECOURSE BUT TO RESOLVE THE DOUBT IN FAVOR OF THE GOVERNMENT.

IN YOUR PRESENT LETTER YOU REASSERT THAT A COMBINATION OF RATES AS BILLED, RATHER THAN THE THROUGH RATE AS USED IN OUR AUDIT, IS APPLICABLE SINCE THE SHIPMENT ACTUALLY WAS TENDERED TO DELTA LINES WHICH WAS NOT ACTING IN THE CAPACITY OF AGENT FOR YOUR COMPANY. IN SUPPORT OF YOUR POSITION, YOU HAVE SUBMITTED A COPY OF A TRAILER INTERCHANGE RECEIPT AND SAFETY INSPECTION REPORT NO. 98460, INDICATING THAT DELTA LINES LEASED YOUR TRAILER NO. T693, THE TRAILER SHOWN ON THE BILL OF LADING AS BEING ASSIGNED FOR THE TRANSPORTATION OF THE INSTANT SHIPMENT. IN ADDITION, YOU HAVE SUBMITTED A COPY OF A LETTER FROM DELTA LINES, SIGNED BY THAT CARRIER'S GENERAL TRAFFIC MANAGER, WHICH CONTAINS THE STATEMENT THAT DELTA LINES WAS NOT ACTING AS AGENT FOR YOUR COMPANY AND THAT THE SUBJECT SHIPMENT WAS TENDERED DIRECTLY TO DELTA LINES AND "ULTIMATE TRANSFERRED" TO YOUR COMPANY.

IN VIEW OF THE EVIDENCE WHICH YOU HAVE FURNISHED AND BECAUSE OF THE PRIOR CONFLICTING STATEMENTS AS SET FORTH BY YOU AND THE ADMINISTRATIVE OFFICE, WE AGAIN REQUESTED THAT THE ADMINISTRATIVE OFFICE (DEFENSE TRAFFIC MANAGEMENT SERVICE AT OAKLAND) CONSIDER THE MATTER. WITH OUR LETTER REQUESTING THIS ADDITIONAL INFORMATION, WE ENCLOSED COPIES OF THE DOCUMENTS YOU SUBMITTED.

IN REPLY, THE ADMINISTRATIVE OFFICE ADVISED THAT THE SHARPE GENERAL DEPOT, LYOTH, CALIFORNIA, REAFFIRMED ITS ORIGINAL STATEMENT THAT THE SUBJECT SHIPMENT WAS TENDERED TO YOUR COMPANY. IN SUPPORT OF THIS STATEMENT THEY FURNISHED US A COPY OF A LETTER OF FEBRUARY 14, 1961, FROM MR. WILLARD LUTZ, AGENT FOR DELTA LINES AT STOCKTON, FROM WHICH WE QUOTE THE FOLLOWING PERTINENT PARAGRAPH:

"WE RECEIVED THE ORDER FOR THIS PICKUP FROM MR. BERG, THE LOCAL AGENT FOR WESTERN TRUCK LINES. AT THE TIME OF THIS SHIPMENT, WESTERN TRUCK LINES WAS NOT SERVING LYOTH DIRECT, AND THEY ASKED US TO MAKE THE PICK UP FOR THEM.'

IN VIEW OF THE FURTHER REPRESENTATIONS FROM ALL OTHER PARTIES CONCERNED, IT SEEMS TO US THAT WHILE THERE MIGHT NOT, IN FACT, BE AN AGENCY RELATIONSHIP ESTABLISHED BETWEEN YOUR COMPANY AND DELTA LINES IN THE COURSE OF HANDLING OF THIS SHIPMENT, WE ARE, NEVERTHELESS, CONVINCED ON THE BASIS OF THE PRESENT RECORD THAT THE SHIPMENT WAS TENDERED TO YOUR COMPANY AS INITIAL CARRIER FOR THE PERFORMANCE OF THE TRANSPORTATION SERVICE REQUESTED. YOUR SUBSEQUENT UNILATERAL ACTION IN TURNING THIS SHIPMENT OVER TO DELTA LINES TO PERFORM IN YOUR PLACE AS INITIAL CARRIER, WE FEEL, CONSTITUTED A BREACH OF THE CONTRACT OF CARRIAGE--- AS RECITED IN THE BILL OF LADING--- AND YOU WOULD BE LIABLE FOR THE CONSEQUENT DAMAGES, THAT IS, THE $107.02 DIFFERENCE BETWEEN THE CHARGES COMPUTED AT THE COMBINATION AND THROUGH RATES. ACCORDINGLY, OUR DECISION OF JUNE 26, 1961, IS ..END :