B-147344, NOV. 20, 1962

B-147344, NOV. 20, 1962

TO A. B. JAMES FREIGHT LINES:

IN YOUR LETTER OF SEPTEMBER 13, 1962, FILE NO. N-698/51 UC-117, TK707360, B-147344, YOU REQUEST RECONSIDERATION OF OUR DECISION OF APRIL 19, 1962, B -147344, IN WHICH WE SUSTAINED THE PARTIAL DISALLOWANCE OF YOUR CLAIM, PER SUPPLEMENTAL BILL NO. UC-117-N-698, FOR ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF MIXED MISCELLANEOUS MATERIAL FROM OAKLAND TO SAN DIEGO, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. N-14224528, DATED OCTOBER 18, 1951. YOU STATE THAT OUR DECISION "CAN NOT BE ACCEPTED FOR IT APPEARS THAT * * * (OUR) OFFICE IS BASING * * * (ITS) ENTIRE REASONING ON THE DECISION OF THE COMPTROLLER GENERAL, NUMBER B-132118, DATED 21 NOVEMBER 1957 (37 COMP. GEN. 350), WHICH PERTAINS ONLY TO SHIPMENTS LOADED ON SPECIFIC SIZE OF EQUIPMENT REQUESTED BY THE GOVERNMENT.' THEREFORE, YOU CONCLUDE THAT:

"THIS DECISION DOES NOT APPLY TO THE CASE IN QUESTION FOR IT WAS BROUGHT OUT VERY CLEARLY IN THIS DECISION THAT IT APPLIED TO SHIPMENTS LOADED ON EQUIPMENT ORDERED BY THE GOVERNMENT, AND YOU (GAO) STATE IN REFERENCE (A) THAT THERE WAS NO RECORD OF EQUIPMENT BEING ORDERED BY THE GOVERNMENT.'

ALTHOUGH THE SHIPMENTS INVOLVED IN THE COMPTROLLER GENERAL'S DECISION PUBLISHED IN 37 COMP. GEN. 350 WERE TRANSPORTED IN THE SIZE VEHICLES ORDERED, THIS FACT WAS OF SIGNIFICANCE IN THAT DECISION SINCE EXCLUSIVE USE APPARENTLY WAS REQUESTED UNDER RULE 110, AND IT MAY BE OF SIGNIFICANCE IN SOME INSTANCES IN THE APPLICATION OF THE MAXIMUM CHARGE PROVISION IN RULE 120 (B) OF SOUTHWESTERN MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 1.

HOWEVER, IN THIS CASE, AS PREVIOUSLY POINTED OUT, EXCLUSIVE USE WAS NOT REQUESTED, AND THE PROVISIONS OF RULE 110 HAVE NO APPLICATION EXCEPT FOR THE LIMITED PURPOSE OF DETERMINING THE MAXIMUM CHARGE THAT MIGHT BE CLAIMED UNDER RULE 120 (B). IN ADDITION, WE DID NOT RELY UPON THE MAXIMUM CHARGE PROVISION OF RULE 120 (B), FOR AS STATED ON PAGE 3 OF OUR DECISION:

"HOWEVER, RELIANCE IN THIS CASE NEED NOT BE PLACED UPON THE APPLICATION OF THE MAXIMUM CHARGE PROVISION OF RULE 120 (B), IN THE ABSENCE OF EVIDENCE IN THE RECORD THAT THE 35-FOOT VEHICLE USED WAS IN FACT ORDERED, SINCE RULE 120 (A), UPON WHICH YOU BASE YOUR CLAIM, HAS NO APPLICATION. CONTRARY TO YOUR CONTENTION THAT RULE 120 (A) APPLIES "ON A PER ARTICLE BASIS * * *" THUS INCREASING THE "CUBED WEIGHT TO 44,013 POUNDS," OUR OFFICE STATED, IN 37 COMP. GEN. 350, AT 351--- CONCERNING THE APPLICATION OF RULE 120 (A) OF SOUTHWESTERN MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 1--- THAT SINCE THE VARIOUS ARTICLES COMPRISING THE SHIPMENT IN THE AGGREGATE WEIGH IN EXCESS OF 15 POUNDS PER CUBIC FOOT, THERE IS NO JUSTIFICATION FOR THE APPLICATION OF THE CUBIC FOOT RULE TO EACH ARTICLE IN THE SHIPMENT, WHICH IS SUBJECT TO THE ,FREIGHT N.O.S.' RATES.

"SIMILARLY, ALTHOUGH CERTAIN INDIVIDUAL ARTICLES IN THE PRESENT SHIPMENT WEIGHED LESS THAN 15 POUNDS PER CUBIC FOOT, THE VARIOUS ARTICLES COMPRISING THE SHIPMENT IN THE AGGREGATE WEIGHED IN EXCESS OF 15 POUNDS PER CUBIC FOOT. CONSEQUENTLY, AS STATED IN OUR DECISION IN 37 COMP. GEN. 350, THERE IS NO JUSTIFICATION FOR APPLICATION OF THE LIGHT AND BULKY ARTICLES RULE IN THIS CASE. ACCORDINGLY, THE DISALLOWANCE OF THIS PORTION OF YOUR CLAIM IS SUSTAINED.'

THEREFORE, WHETHER OR NOT A PARTICULAR SIZE VEHICLE WAS ORDERED IS OF NO SIGNIFICANCE IN CONNECTION WITH THE CONSTRUCTION AND APPLICATION OF THE LIGHT AND BULKY ARTICLES PROVISION OF RULE 120 (A).

SINCE NO NEW EVIDENCE HAS BEEN PRESENTED WHICH WOULD JUSTIFY A CHANGE OF OUR OPINION, OUR PRIOR DECISION SUSTAINING THE DISALLOWANCE OF YOUR CLAIM IS AFFIRMED.