B-157576, DEC. 26, 1967

B-157576, DEC. 26, 1967

TRANSPORTATION - FREIGHT CHARGES - EXCLUSIVE USE DECISION TO GEORGIA HIGHWAY EXPRESS, INC., RECONSIDERING DECISION OF MARCH 29, 1966, FOR ADDITIONAL FREIGHT CHARGES ON BASIS OF EXCLUSIVE USE OF VEHICLE IN SHIPMENT FROM TOOELE, UTAH, TO FT. BENNING, GA. ALTHOUGH CARRIER SUBMITS EVIDENCE INDICATING THAT GOVERNMENT SHIPMENT WAS TO RECEIVE BLUESTREAK" TREATMENT, SUCH EVIDENCE DOES NOT CURE THE DEFECT THAT THE GOVT. BILL OF LADING DID NOT SHOW THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUIRED AND EVEN THOUGH SUCH SERVICE WAS REQUIRED AND FURNISHED UNDER BLASS CO. V. POWER BROTHERS TRUCK LINE, 53 M.C.C. 603 (1951) THE CARRIER IS NOT ENTITLED TO EXCLUSIVE USE CHARGES.

TO GEORGIA HIGHWAY EXPRESS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1967, IN WHICH YOU REQUESTED RECONSIDERATION OF OUR DECISION B-157576, MARCH 29, 1966. IN THAT DECISION WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $394.80 AS ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF GOVERNMENT PROPERTY TRANSPORTED FROM TOOELE, UTAH, TO FORT BENNING, GEORGIA, UNDER GOVERNMENT BILL OF LADING B-7426782, IN NOVEMBER 1962.

THE AMOUNT CLAIMED REPRESENTS THE DIFFERENCE BETWEEN APPLICABLE CHARGES AT THE TRUCKLOAD RATE AND CHARGES COMPUTED ON THE BASIS OF EXCLUSIVE USE OF VEHICLE SERVICE. THE DECISION SUSTAINING THE DISALLOWANCE WAS PREDICATED ON THE ABSENCE FROM THE BILL OF LADING OF AN APPROPRIATE NOTATION SHOWING THAT EXCLUSIVE USE OF VEHICLE WAS REQUESTED, AS REQUIRED BY APPLICABLE TARIFF PROVISIONS. AS WE POINTED OUT IN THE PRIOR DECISION THE NOTATION "EXPEDITE ALL POSSIBLE," APPEARING ON THE ORIGINAL BILL OF LADING, DID NOT CONSTITUTE SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENT OF THE GOVERNING TARIFF, AND A MERE UNSUPPORTED STATEMENT BY THE GOVERNMENT SHIPPING OFFICER AT POINT OF ORIGIN, MADE MORE THAN TWO YEARS AFTER THE SHIPMENT MOVED, DOES NOT SUPPLY THE DEFICIENCY AS TO TARIFF COMPLIANCE.

WITH YOUR LETTER OF JUNE 22, 1967, YOU RESUBMITTED SOME OF THE PAPERS WE PREVIOUSLY CONSIDERED; TO THOSE PAPERS YOU ADDED A COPY OF DEPARTMENT OF DEFENSE FORM NO. 1352 (GBL CORRECTION FORM) PREPARED BY THE SHIPPING OFFICER AT TOOELE, SHOWING THAT THE BILL OF LADING WAS TO BE CORRECTED TO INCLUDE A NOTATION TO THE EFFECT THAT EXCLUSIVE USE WAS REQUESTED. THE FORM WAS PREPARED ON JULY 25, 1966, WHICH WAS MORE THAN THREE YEARS AFTER THE SHIPMENT WAS TRANSPORTED. YOU ALSO FURNISHED A COPY OF A FORM WHICH SEEMS TO HAVE BEEN PREPARED ON NOVEMBER 5, 1962, APPARENTLY A FEW DAYS AFTER THE SHIPMENT WAS PICKED UP BY THE ORIGIN CARRIER, INDICATING THAT THE SHIPMENT WAS TO RECEIVE "BLUESTREAK" TREATMENT. THE TERM "BLUESTREAK" IS NOT DEFINED BUT SUGGESTS THAT FAST HANDLING WAS REQUIRED; THE TERM "EXCLUSIVE USE" OR SOMETHING COMPARABLE IS NOT INCLUDED IN THIS FORM.

WE DO NOT BELIEVE THAT THE ADDITIONAL PAPERS FURNISHED ARE SUFFICIENT TO AUTHORIZE THE APPLICATION OF EXCLUSIVE USE CHARGES SINCE SUCH INFORMATION STILL DOES NOT CONSTITUTE COMPLIANCE WITH THE TARIFF REQUIREMENTS. AS WE POINTED OUT PREVIOUSLY, THE OMISSION OF A REQUIRED BILL OF LADING ENDORSEMENT IS A DEFECT FATAL TO A DEMAND FOR EXCLUSIVE USE OF VEHICLE CHARGES EVEN THOUGH THAT TYPE OF SERVICE WAS ORALLY REQUESTED AND ACTUALLY FURNISHED. THE CASE OF GUS BLASS CO. V. POWELL BROTHERS TRUCK LINE, 53 M.C.C. 603 (1951), IN WHICH THE INTERSTATE COMMERCE COMMISSION HELD THAT THE CARRIER WAS ENTITLED TO TRUCKLOAD RATHER THAN EXCLUSIVE USE CHARGES, COVERS A SITUATION COMPARABLE TO THAT IN THE PRESENT CASE. THERE, AS HERE, THERE WAS NO DISPUTE THAT EXCLUSIVE USE SERVICES WERE REQUESTED AND FURNISHED. ON THE AUTHORITY OF THAT DECISION AND OTHERS WHICH WE REFERRED TO IN OUR PREVIOUS CONSIDERATION OF THIS CASE, WE DO NOT BELIEVE THAT THE GOVERNMENT SHOULD PAY MORE THAN THE TRUCKLOAD CHARGES IN THIS INSTANCE.

ACCORDINGLY, THE CONCLUSION REACHED IN OUR PREVIOUS DECISION, SUSTAINING DISALLOWANCE OF YOUR CLAIM FOR MORE THAN TRUCKLOAD CHARGES, IS REAFFIRMED.