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B-142603, DEC. 13, 1960

B-142603 Dec 13, 1960
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INC.: WE HAVE CONSIDERED THE MATERIAL SUBMITTED WITH YOUR LETTER OF OCTOBER 10. WE FIND THAT IT IS UNSUFFICIENT TO OVERCOME THE EVIDENCE AS TO THE FACTS OF LOADING PROVIDED BY BILL OF LADING NO. OF WHICH WE HAVE ALREADY SENT YOU A COPY. THERE IS NO INFORMATION IN THESE DOCUMENTS WHICH CONNECTS THEM TO BILL OF LADING NO. AF-2266398 AND THE SHIPMENT COVERED THEREBY OTHER THAN THE INDICATION THAT CERTAIN "PIECES" LOADED IN THE TRAILERS WERE CONSIGNED FROM THE GENERAL ELECTRIC COMPANY AT OKLAHOMA CITY TO MIDWEST CITY. THEY ARE INSUFFICIENT TO OVERCOME THE EFFECT OF THE PLAIN STATEMENT OF THE GENERAL ELECTRIC COMPANY THAT ONE VEHICLE WAS USED FOR THE SHIPMENT. THE BILL OF LADING SHOWS THAT THE GOODS WERE RECEIVED BY THE CONSOLIDATED FORWARDING COMPANY ON OCTOBER 9.

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B-142603, DEC. 13, 1960

TO CONSOLIDATED FORWARDING COMPANY, INC.:

WE HAVE CONSIDERED THE MATERIAL SUBMITTED WITH YOUR LETTER OF OCTOBER 10, 1960, IN WHICH YOU REQUESTED US TO RECONSIDER OUR DECISION OF OCTOBER 3, 1960, B-142603, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM NO. OC-6333 FOR $233.42. WE FIND THAT IT IS UNSUFFICIENT TO OVERCOME THE EVIDENCE AS TO THE FACTS OF LOADING PROVIDED BY BILL OF LADING NO. AF-2266398, AND THE STATEMENT OF THE SHIPPER, MADE IN A LETTER DATED SEPTEMBER 24, 1956, OF WHICH WE HAVE ALREADY SENT YOU A COPY.

WITH YOUR LETTER, YOU SENT REPRODUCTIONS OF THREE MANIFESTS: NO. 1180, DATED OCTOBER 9, 1953, COVERING TRAILER 105-T, INDICATED AS HAVING BEEN LOADED WITH 14 PIECES OF A 30-PIECE SHIPMENT WEIGHING 15,563 POUNDS, FROM THE GENERAL ELECTRIC COMPANY, OKLAHOMA CITY, TO MIDWEST CITY, OKLAHOMA; NO. 1196, DATED OCTOBER 12, 1953, COVERING TRAILER NO. 891, SHOWN AS HAVING CONTAINED 12 PIECES, WEIGHING7,860 POUNDS, FROM THE GENERAL ELECTRIC COMPANY CONSIGNED TO MIDWEST CITY, TOGETHER WITH APPROXIMATELY 7,700 POUNDS OF OTHER FREIGHT FOR OTHER DESTINATIONS; AND NO. 1210, DATED OCTOBER 14, 1953, COVERING TRAILER 761-S, SHOWN AS HAVING CONTAINED 4 PIECES, WEIGHING 2,620 POUNDS, FROM THE GENERAL ELECTRIC COMPANY CONSIGNED TO MIDWEST CITY, TOGETHER WITH APPROXIMATELY 10,000 POUNDS OF OTHER FREIGHT FOR OTHER DESTINATIONS.

THERE IS NO INFORMATION IN THESE DOCUMENTS WHICH CONNECTS THEM TO BILL OF LADING NO. AF-2266398 AND THE SHIPMENT COVERED THEREBY OTHER THAN THE INDICATION THAT CERTAIN "PIECES" LOADED IN THE TRAILERS WERE CONSIGNED FROM THE GENERAL ELECTRIC COMPANY AT OKLAHOMA CITY TO MIDWEST CITY. EVEN CONCEDING THAT THESE MANIFESTS IN FACT RELATE TO THE SHIPMENT ON BILL OF LADING NO. AF-2266398, THEY ARE INSUFFICIENT TO OVERCOME THE EFFECT OF THE PLAIN STATEMENT OF THE GENERAL ELECTRIC COMPANY THAT ONE VEHICLE WAS USED FOR THE SHIPMENT. THE BILL OF LADING SHOWS THAT THE GOODS WERE RECEIVED BY THE CONSOLIDATED FORWARDING COMPANY ON OCTOBER 9, 1953, AND THAT "PICKUP SERVICE AT ORIGIN WAS NOT BY THE GOVERNMENT OR ITS AGENT.' ONLY ONE OF THE MANIFESTS INDICATES THAT PART OF THE LOT MOVED FORWARD TO DESTINATION ON OCTOBER 9; THE BALANCE IS SHOWN AS HAVING BEEN TRANSPORTED ON OCTOBER 12 AND OCTOBER 14. THE CIRCUMSTANCES SUGGEST THAT THE CONSOLIDATED FORWARDING COMPANY, FOR ITS OWN PURPOSES IN THE EXERCISE OF ITS MANAGERIAL DISCRETION, DETERMINED NOT TO FORWARD THE SHIPMENT IN THE MANNER IN WHICH IT WAS TENDERED, AS ONE LOT FOR TRANSPORTATION IN ONE VEHICLE, BUT INSTEAD TO DISPATCH THE SHIPMENT IN THREE SEPARATE LOTS AT THREE DIFFERENT TIMES.

IN THIS SITUATION, THE PRINCIPLE UNDERLYING OUR DECISION OF OCTOBER 3, 1960, THAT THE UNITED STATES IS LIABLE FOR FREIGHT CHARGES ONLY TO THE EXTENT CONTEMPLATED UNDER THE BILL OF LADING CONTRACT AND IN ACCORDANCE WITH APPLICABLE TARIFF PROVISIONS WHEN THE SHIPMENT WAS TENDERED TO THE CARRIER AS ONE LOT FOR TRANSPORTATION IN ONE VEHICLE, IS CORRECT AND IT IS AFFIRMED. THE BALANCE OF THE OVERCHARGE, $164.69, SHOULD BE REFUNDED WITHIN 30 DAYS TO AVOID COLLECTION BY DEDUCTION, PURSUANT TO 49 U.S.C. 66, AS AMENDED.

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