B-156463, MAR. 24, 1967

B-156463, MAR. 24, 1967

TO STRICKLAND TRANSPORTATION COMPANY, INC.:

PLEASE REFER TO YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION OF JULY 11, 1966, SUSTAINING OUR SETTLEMENT CERTIFICATE (TK-788961) DATED OCTOBER 15, 1965. THAT CERTIFICATE DISALLOWED YOUR SUPPLEMENTAL BILL NO. 12334-A FOR ADDITIONAL CHARGES OF $291.06 FOR THE TRANSPORTATION OF METAL SHIPPING CONTAINERS MOVING UNDER GOVERNMENT BILLS OF LADING B 7158378 AND B-7158386 IN MARCH 1963. YOUR FILE REFERENCE IS STC CLAIM GAO-22821.

IN OUR DECISION OF JULY 11, 1966, WE SUSTAINED THE SETTLEMENT ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN DISALLOWING YOUR CLAIM BECAUSE PERTINENT GOVERNMENT BILL OF LADING CORRECTION NOTICES PREPARED BY FRANCIS J. BUTRUM, AN ARMY TRANSPORTATION OFFICER, RED RIVER ARMY DEPOT, TEXAS, UNDER WHOSE SUPERVISION BILLS OF LADING B 7158378 AND B-7158386 WERE ISSUED, SHOWED THAT THE LOTS OF FREIGHT CONCERNED WERE PARTS OF A VOLUME SHIPMENT TENDER OF 67,000 POUNDS. THE CORRECTION NOTICES, COPIES OF WHICH ARE ENCLOSED, WERE SIGNED BY YOUR AGENT, D. E. SIMMONS, WHO ALSO SIGNED THE GOVERNMENT BILLS OF LADING IN MARCH 1963.

YOUR DISAGREEMENT WITH OUR CONCLUSION THAT A VOLUME RATE CHARGE BASIS WAS APPLICABLE IN THIS CASE RESTS UPON TWO ASSUMPTIONS: (1) THAT THE CORRECTION NOTICES (DD FORM 1352) OF JUNE 2, 1965, CONFIRMING TENDER OF THE FOUR-PART LOT OF 67,000 POUNDS AS A VOLUME LOAD, FORWARDED BY RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, WERE "INFLUENCED" BY OUR REQUEST FOR INFORMATION, AND (2) THAT THE SIGNATURE ON THE FORMS OF YOUR REPRESENTATIVE, D. E. SIMMONS, WHO, YOU SAY, IS YOUR "PICK-UP DRIVER," WAS OBTAINED BY SUBTERFUGE. YOU ALSO DISPUTE THE PROPRIETY OF RELYING ON D. E. SIMMONS' CONCURRENCE IN THE FACT THAT THE FOUR-PART SHIPMENT WAS A SINGLE VOLUME LOAD BECAUSE HE ALLEGEDLY LACKED AUTHORITY TO PARTICIPATE IN AN AGREEMENT AS TO THE ACTUAL SHIPPING PROCEDURE FOLLOWED AT TIME OF TENDER.

CONCERNING YOUR UNDERSTANDING OF THE INFLUENCE THAT YOU THINK WAS USED TO OBTAIN A STATEMENT OF THE FACTS AT THE TIME OF SHIPMENT, THE ENCLOSED COPY OF OUR LETTER DATED MAY 14, 1965, TO THE REGIONAL COMMANDER, SOUTHWESTERN TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS), DALLAS, SHOULD SERVE TO PROVIDE YOU WITH INFORMATION AS TO HOW AND WHEN WE ASKED FOR THE PARTICULARS CONCERNING THE GOVERNMENT BILLS OF LADING INVOLVED. ALSO ENCLOSED IS A COPY OF A "2D IND" FROM THE RED RIVER ARMY DEPOT TO THE SOUTHWESTERN TRAFFIC REGION, MTMTS, IN WHICH IT IS REPORTED THAT THE FOUR RELATED GOVERNMENT BILLS OF LADING "COVERED THE FIRST, SECOND, THIRD, AND FINAL PARTIALS" OF A 67,000-POUND SHIPMENT. WE FIND NO EVIDENCE IN OUR RECORD THAT ANY INFLUENCE OR SUBTERFUGE WAS EMPLOYED TO ESTABLISH THE TRUE FACTS OF SHIPMENT OR TO OBTAIN THE SIGNATURE OF YOUR EMPLOYEE, D. E. SIMMONS.

WE ALSO DO NOT AGREE WITH YOUR CONCLUSION THAT D. E. SIMMONS WAS NOT AN APPROPRIATE CARRIER REPRESENTATIVE TO ACQUIESCE IN THE CORRECTION NOTICES. SINCE HE SIGNED THE ORIGINAL GOVERNMENT BILLS OF LADING COVERING THE TRANSPORTATION IN CONTROVERSY AS THE CARRIER'S AGENT, WE BELIEVE THAT HE WAS PROPERLY QUALIFIED TO CONCUR IN A STATEMENT OF FACT AS TO THE CONDITIONS UNDER WHICH THE METAL SHIPPING CONTAINERS WERE TENDERED TO THE CARRIER. AS PICK-UP DRIVER HE SHOULD HAVE BEEN IN THE BEST POSITION TO KNOW WHETHER OR NOT THE ENTIRE CONSIGNMENT OF 67,000 POUNDS WAS TENDERED AT THE SAME TIME.

THERE IS NO APPARENT REASON TO REVISE THE SETTLEMENT UPHELD IN OUR PRIOR DECISION, WHICH IS ACCORDINGLY AFFIRMED.