B-141870, JUL. 29, 1960

B-141870, JUL. 29, 1960

TO MASTEN TRANSPORTATION, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 25, 1960, IN WHICH YOU REQUEST REVIEW OF THE DISALLOWANCE BY OUR TRANSPORTATION DIVISION OF YOUR CLAIMS FOR ADDITIONAL FREIGHT (EXCLUSIVE USE) CHARGES ALLEGED TO BE DUE ON 15 SHIPMENTS ORIGINATING AT SAVANNAH, GEORGIA; MIDWEST CITY, OKLAHOMA; SIOUX CITY, IOWA; CHICAGO, ILLINOIS; ST. LOUIS, MISSOURI; AND GARDENA, CALIFORNIA, AND TRANSPORTED TO DOVER AIR FORCE BASE, DELAWARE.

BEFORE A CARRIER CAN BE CONSIDERED ENTITLED TO RECEIVE PREMIUM CHARGES APPLICABLE TO LESS-THAN-TRUCK-LOAD SHIPMENTS FOR EXCLUSIVE USE OF VEHICLE, TWO CONDITIONS MUST BE SATISFIED. FIRST THERE MUST BE AT LEAST SUBSTANTIAL COMPLIANCE WITH THE EXCLUSIVE USE OF VEHICLE TARIFF OR QUOTATION REQUIREMENTS CONCERNING ANNOTATION OF THE BILL OF LADING; AND, SECOND, THERE MUST BE SOME EVIDENCE THAT EXCLUSIVE-USE-OF-VEHICLE SERVICE WAS, IN FACT, PERFORMED. SEE B-140838, MAY 10, 1960, 39 COMP. GEN. 755, COPY ENCLOSED.

YOUR CLAIM (TK-640374) FOR ADDITIONAL CHARGES IN THE AMOUNT OF $567.02 FOR EXCLUSIVE USE OF VEHICLE UNDER GOVERNMENT BILL OF LADING NO. AF- 7206744 WAS ALLOWED IN FULL BY SETTLEMENT CERTIFICATE DATED MAY 25, 1960, THE SAME DATE AS YOUR PRESENT REQUEST FOR REVIEW, AND WE ARE ADVISED INFORMALLY PAYMENT OF SUCH AMOUNT HAS ALREADY BEEN RECEIVED BY YOU. FURTHER CONSIDERATION WILL THEREFORE BE GIVEN HEREIN TO SUCH CLAIM.

EXCEPT FOR SUCH CLAIM NO. TK-640374 ALL OF YOUR CLAIMS FALL INTO TWO CATEGORIES. IN THE FIRST CATEGORY ARE THOSE CLAIMS INVOLVING BILLS OF LADING WHICH ARE ANNOTATED IN SUBSTANTIAL COMPLIANCE WITH TARIFF REQUIREMENTS, AND ARE SUPPORTED BY SOME EVIDENCE THAT EXCLUSIVE-USE SERVICE WAS PERFORMED, SUCH AS A NOTATION THAT THE TRUCKS WERE SEALED AT ORIGIN BY THE SHIPPER WITHOUT ANY INDICATION THAT THE SEALS WERE BROKEN BEFORE DELIVERY AT DESTINATION. THESE CLAIMS HAVE BEEN RETURNED TO OUR TRANSPORTATION DIVISION FOR FURTHER CONSIDERATION AND YOU WILL BE ADVISED BY IT OF THE FINAL DISPOSITION.

IN THE SECOND CATEGORY ARE CLAIMS WHICH ARE EITHER NOT PROPERLY ANNOTATED OR ARE NOT SUPPORTED BY EVIDENCE THAT EXCLUSIVE-USE SERVICE WAS PERFORMED. GOVERNMENT BILL OF LADING NO. AF-5305911, IN CLAIM NO. TK- 675609, IS NOT ANNOTATED IN ANY MANNER CONCERNING EXCLUSIVE USE, AND IS, THEREFORE, GOVERNED BY THE SAME CONSIDERATIONS AS WERE SET FORTH IN OUR DECISION OF APRIL 27, 1960, B-141870, CONCERNING YOUR CLAIM FOR EXCLUSIVE- USE CHARGES FOR THE SERVICE PERFORMED UNDER GOVERNMENT BILL OF LADING NO. AF-7026823. THERE, AS HERE, THE ONLY PERTINENT NOTATION ON THE BILL OF LADING PROVIDED THAT SEALS APPLIED BY THE SHIPPER AT ORIGIN WERE NOT TO BE BROKEN. AS STATED IN THAT DECISION, HOWEVER, CITING THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, THE MERE FACT THAT THE VEHICLE WAS SEALED AND INSTRUCTIONS GIVEN THAT THE SEALS WERE NOT TO BE REMOVED DOES NOT JUSTIFY CHARGES HIGHER THAN ARE APPLICABLE TO TRUCKLOAD OR VOLUME SHIPMENTS IN THE ABSENCE OF AN APPROPRIATE NOTATION ON THE BILL OF LADING. SINCE IT APPEARS THAT YOU HAVE ALREADY BEEN PAID ON THE BASIS OF TRUCKLOAD RATES, NO ADDITIONAL AMOUNT IS DUE YOU, AND THE DISALLOWANCE OF THAT CLAIM IS SUSTAINED.

CLAIMS NOS. TK-676220 AND TK-676221 CONCERN BILLS OF LADING NOS. AF 6107324 AND AF-6088023, RESPECTIVELY, WHICH, ALTHOUGH ANNOTATED IN SUBSTANTIAL COMPLIANCE WITH TARIFF REQUIREMENTS, ARE NOT SUPPORTED BY ANY EVIDENCE, EITHER ON THE BILL OF LADING ITSELF OR IN THE RECORD, THAT THE EXCLUSIVE-USE SERVICE WAS PERFORMED. ACCORDINGLY, IN THE ABSENCE OF EVIDENCE THAT EXCLUSIVE-USE SERVICE WAS PERFORMED, OUR DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL CHARGES ON THE SHIPMENTS COVERED BY BILLS OF LADING NOS. AF-6107324 AND AF-6088023 IS SUSTAINED.