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B-144484, FEB. 12, 1962

B-144484 Feb 12, 1962
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OUR DECISION WAS BASED UPON A REPORT FROM THE ADMINISTRATIVE OFFICE. THAT THE VEHICLE CONCERNED WAS LOADED TO FULL VISIBLE CAPACITY AND THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING. IN YOUR REQUEST FOR RECONSIDERATION YOU REITERATE YOUR PROTEST STATING THAT THE VEHICLE WAS SEALED WITH U.S. THE INTERSTATE COMMERCE COMMISSION HELD THAT CHARGES FOR EXCLUSIVE USE ARE INAPPLICABLE ONCE A VEHICLE IS LOADED TO CAPACITY NOTWITHSTANDING THE FACT THAT EXCLUSIVE-USE SERVICE WAS REQUESTED. AN INDORSEMENT TO THAT EFFECT WAS ON THE BILL OF LADING AND THE VEHICLE WAS SEALED BY THE SHIPPER. IT HELD THAT EXCLUSIVE-USE SERVICE IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS.

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B-144484, FEB. 12, 1962

TO CAROLINA FREIGHT CARRIERS CORPORATION:

IN YOUR LETTER OF NOVEMBER 24, 1961, FILE 060-1270, YOU REQUEST RECONSIDERATION OF OUR DECISION OF OCTOBER 27, 1961, B-144484, 41 COMP. GEN. 266, IN WHICH WE SUSTAINED THE AUDIT ACTION OF OUR TRANSPORTATION DIVISION. ON AUDIT OF THE ORIGINAL PAYMENT VOUCHER OUR TRANSPORTATION DIVISION STATED AN OVERCHARGE FOR THE DIFFERENCE BETWEEN TRUCKLOAD CHARGES AND THE CHARGES FOR EXCLUSIVE USE OF VEHICLE ORIGINALLY CLAIMED AND PAID FOR THE TRANSPORTATION OF FOUR GENERATORS AND ENGINES COMBINED, MOUNTED ON TRAILERS, FROM WASHINGTON, D.C., TO PATRICK AIR FORCE BASE, FLORIDA, UNDER GOVERNMENT BILL OF LADING NO. N 34068728, DATED OCTOBER 23, 1959. OUR DECISION WAS BASED UPON A REPORT FROM THE ADMINISTRATIVE OFFICE, SUPPORTED BY DIMENSIONS OF THE ARTICLES SHIPPED, THAT THE VEHICLE CONCERNED WAS LOADED TO FULL VISIBLE CAPACITY AND THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576.

IN YOUR REQUEST FOR RECONSIDERATION YOU REITERATE YOUR PROTEST STATING THAT THE VEHICLE WAS SEALED WITH U.S. SEAL 434061 AND THE BILL OF LADING BORE THE NOTATION "EXCLUSIVE USE OF VEHICLE REQUESTED BY SHIPPER" THEREBY PREVENTING USE OF ANY ADDITIONAL SPACE. HOWEVER, IN THE CURTIS LIGHTING CASE, ABOVE, THE INTERSTATE COMMERCE COMMISSION HELD THAT CHARGES FOR EXCLUSIVE USE ARE INAPPLICABLE ONCE A VEHICLE IS LOADED TO CAPACITY NOTWITHSTANDING THE FACT THAT EXCLUSIVE-USE SERVICE WAS REQUESTED, AN INDORSEMENT TO THAT EFFECT WAS ON THE BILL OF LADING AND THE VEHICLE WAS SEALED BY THE SHIPPER. IT HELD THAT EXCLUSIVE-USE SERVICE IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS, BUT ONCE A VEHICLE IS LOADED TO CAPACITY THE SHIPMENT IS BY DEFINITION A TRUCKLOAD SHIPMENT. SEE MERCHANDISE SOUTHWEST FREIGHT LINES INC., 51 M.C.C. 112, 115. SEE ALSO, RATES AND RULES--- BARBOUR TRANSPORTATION COMPANY, 34 M.C.C. 87, 90. THEREFORE, SINCE THE SHIPMENT IS NO LONGER A LESS-THAN- TRUCKLOAD SHIPMENT EXCLUSIVE-USE SERVICE IS NOT POSSIBLE AND THE CHARGES FOR EXCLUSIVE USE ARE NOT APPLICABLE.

IN ADDITION YOU REFER TO AN ABSTRACT OF SECTION 3065.10 OF OUR POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES (5 GAO 3065.10) APPEARING IN AMERICAN TRUCKING ASSOCIATION BULLETIN NO. 338, DATED NOVEMBER 30, 1960. SECTION 3065.10 PROVIDES IN PERTINENT PART, "WHERE ACCESSORIAL OR SPECIAL SERVICES ARE SHOWN AS ORDERED BUT WERE NOT FURNISHED THE BILL OF LADING SHALL BE SO ANNOTATED.' YOU URGE THAT THE ABSENCE OF ANY SUCH NOTATION FROM THE BILL OF LADING CONSTITUTES PRIMA- FACIE EVIDENCE THAT THE CONSIGNEE FELT THE SERVICE REQUESTED OF YOUR COMPANY WAS PERFORMED. OUR AUDIT ACTION IS NOT PREDICATED UPON ANY CONCLUSION THAT THE ITEMS SHIPPED WERE NOT DELIVERED IN THE SEALED TRUCK IN WHICH THEY WERE SHIPPED AND WE AGREE THAT THE ABSENCE OF ANY EXCEPTION PURSUANT TO SECTION 3065.10 WHEN CONSIDERED WITH THE FACT THAT THE SHIPMENT WAS SEALED WOULD HAVE SERVED TO SUPPORT A CLAIM FOR EXCLUSIVE-USE CHARGES HAD THE VEHICLE NOT BEEN LOADED TO CAPACITY; BUT THE LACK OF EXCEPTION IS IMMATERIAL UNDER THE CIRCUMSTANCES OF THIS CASE SINCE IT IS OUR VIEW THAT THE PRESENT SHIPMENT UNDER THE CURTIS LIGHTING CASE IS A TRUCKLOAD SHIPMENT--- TO WHICH TRUCKLOAD CHARGES ARE APPLICABLE AND IN CONNECTION WITH WHICH EXCLUSIVE-USE CHARGES HAVE NO APPLICATION.

YOU ALSO INQUIRE WHETHER IN VIEW OF THE PRESENT SITUATION YOU MAY ON FUTURE SHIPMENTS IGNORE GOVERNMENT SEALS AND LOAD ADDITIONAL FREIGHT AT YOUR CONVENIENCE. CONCERNING THE QUESTION OF SEALS ON GOVERNMENT SHIPMENTS, YOUR ATTENTION IS INVITED TO THE CURRENT MILITARY TRAFFIC MANAGEMENT REGULATIONS PUBLISHED FOR THE ACCOUNT OF THE MILITARY ESTABLISHMENTS UNDER AR 55-355 (ARMY), OPNAV-INST 4600.8 (NAVY), AND AFM 75-2 (AIR FORCE). THESE REGULATIONS PROVIDE (A) GENERALLY, THAT SEALS ARE TO BE AFFIXED TO GOVERNMENT SHIPMENTS EITHER BY RAIL OR MOTOR IN TWO GROUPS OF CASES; I.E., "B. EQUIPMENT SEALED BUT TO WHICH THE CARRIER MAY HAVE ACCESS" INCLUDING (1) WHEN THE TRUCK OR CAR IS LOADED TO FULL VISIBLE CAPACITIES, OR (2) WHEN TRAP CAR OR PICK-UP SERVICE HAS BEEN ACCORDED FOR PROTECTION OF THE SHIPMENT DURING MOVEMENT FROM SHIPPING POINT TO THE CARRIER'S TERMINAL. THE SECOND GROUP OF CASES IN WHICH SEALS ARE APPLIED CONSISTS OF "C. SECURITY OR OTHER SPECIAL SHIPMENTS TO WHICH THE CARRIER WILL BE DENIED ACCESS.' THESE REGULATIONS FURTHER CAUTION THE CARRIER SPECIFICALLY AGAINST BREAKING SEALS IN TRANSIT ON SHIPMENTS WHICH CONTAIN SECURITY MATTER, EXPLOSIVES, OR OTHER DANGEROUS MATTER, EXCEPT IN AN EMERGENCY, OR WHEN PERMISSION HAS BEEN OBTAINED FROM THE CONSIGNOR OR CONSIGNEE. THE FOREGOING IS FURNISHED AS A MATTER OF INFORMATION ONLY. IN EACH CASE THE CARRIER SHOULD BE GOVERNED STRICTLY BY THE REGULATIONS OR INSTRUCTIONS OF THE INTERESTED GOVERNMENTAL ESTABLISHMENT.

ACCORDINGLY, OUR PRIOR DECISION SUSTAINING THE AUDIT ACTION IS AFFIRMED AND UNLESS REFUND OF THE OVERCHARGE, $178.50, IS PROMPTLY RECEIVED, SUCH OTHER COLLECTION ACTION AS IS DEEMED APPROPRIATE WILL BE TAKEN. SEE 49 U.S.C. 66.

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