B-131798, AUG. 7, 1959

B-131798, AUG. 7, 1959

TO MR. ROBERT P. RAPP, MANAGER, A. B. JAMES FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1957, FILE N 705/52, REQUESTING REVIEW OF OUR AUDIT ACTION ON YOUR BILL N-705 AS TO THE TRANSPORTATION OF 8,190 POUNDS OF ALUMINUM TANKS, SET UP, CRATED, AND ONE BOX OF PORTABLE ELECTRIC HEATERS (AIR HEATERS), WEIGHING 55 POUNDS (TOTAL 8,245 POUNDS), FROM NORTH ISLAND, CALIFORNIA, TO ALAMEDA, CALIFORNIA, ON BILL OF LADING NO. N-30485727, IN DECEMBER 1951. THE BILL OF LADING BEARS THE FOLLOWING NOTATION "ORDERED AND FURNISHED TWO 35 FOOT SEMI-TRUCKS.'

FOR THE TRANSPORTATION OF THIS SHIPMENT, WEIGHING 8,245 POUNDS, YOU CLAIMED AND WERE PAID $450, COMPUTED ON THE BASIS OF A RATE OF 75 CENTS PER 100 POUNDS, MINIMUM WEIGHT 30,000 POUNDS, FOR EACH OF THE TRUCKS USED FOR THE TRANSPORTATION. THIS RATE IS PROVIDED IN ITEM NO. 200 OF SOUTHWESTERN MOTOR TARIFF BUREAU "U.S. GOVERNMENT QUOTATION NO. 1.' REFERENCE MARK (1) ITEM NO. 200 IS MADE ,SUBJECT TO THE PROVISIONS OF RULE NOS. 110 AND 120.' THE MINIMUM WEIGHT AND AMOUNT CLAIMED BY YOU FOR THIS TRANSPORTATION IS APPARENTLY BASED UPON YOUR INTERPRETATION OF RULE NO. 110. IN THE AUDIT OF THIS PAYMENT OUR TRANSPORTATION DIVISION FOUND THAT THE CHARGE FOR THIS TRANSPORTATION SHOULD BE $261.46, COMPUTED ON THE BASIS OF A RATE OF 65 CENTS PER 100 POUNDS, MINIMUM WEIGHT 40,000 POUNDS, PROVIDED IN ITEM NO. 200, AND A CONSTRUCTIVE WEIGHT OF 40,225 POUNDS PURSUANT TO THE PROVISIONS OF RULE NO. 120 OF THE MENTIONED QUOTATION. UPON YOUR FAILURE TO REFUND THE OVERPAYMENT OF $188.54, A LIKE AMOUNT WAS DEDUCTED IN MAKING PAYMENT OF YOUR BILL NO. N-243 ON VOUCHER NO. 335313 OF THE APRIL 1957 ACCOUNTS OF J. E. LEWIS, NAVY DISBURSING OFFICER.

IN YOUR REQUEST FOR REVIEW YOU NOTE THAT THE RATES IN ITEM NO. 200 ARE MADE SUBJECT TO THE PROVISION OF RULE NOS. 110 AND 120 AND STATE THAT THE RATES IN THAT ITEM "ARE NOT APPLICABLE UNLESS SUBJECT TO RULE 110.' IT IS YOUR POSITION THAT THE ANNOTATION "ORDERED AND FURNISHED TWO 35 FOOT SEMI- TRUCKS" ON THE BILL OF LADING FULFILLED ALL OF THE LEGAL REQUIREMENTS OF RULE NO. 110. YOU ASSERT THAT THIS SHIPMENT REQUIRED TWO 35-FOOT SEMI- TRUCKS AND THAT THEY WERE DEMANDED BY VIRTUE OF THE SPECIFIED ANNOTATION, WHICH YOU MAINTAIN DENOTES EXCLUSIVE USE.

RULE NO. 110 OF SOUTHWESTERN MOTOR TARIFF BUREAU LOCAL U.S. GOVERNMENT QUOTATION NO. 1, ENTITLED "EXCLUSIVE USE OF CARRIER'S EQUIPMENT," PROVIDES THAT:

"/A) WHEN EXCLUSIVE USE OF CARRIER'S EQUIPMENT IS REQUIRED OR DEMANDED BY THE SHIPPER TO MEET THE NEEDS OF SPECIAL CONDITIONS, CHARGES SHALL BE ASSESSED BY APPLYING THE APPLICABLE CLASS OR COMMODITY RATE NAMED IN THIS QUOTATION, SUBJECT TO THE FOLLOWING MINIMUM WEIGHTS:

TABLE

(1) LENGTH OF EQUIPMENT MINIMUM WEIGHT

IN LINEAL FEET IN POUNDS

OVER 22 FEET BUT NOT OVER 35 FEET ........ 30,000

"/B) SHIPPER RESERVES THE RIGHT TO ORDER SIZE OF EQUIPMENT AND IN SUCH CASES THE SIZE OF EQUIPMENT ORDERED MUST BE INDICATED ON THE BILLS OF LADING.'

THUS, IT IS CLEAR THAT THIS RULE IS APPLICABLE ONLY WHEN THE EXCLUSIVE USE OF A CARRIER'S EQUIPMENT IS REQUIRED OR DEMANDED BY THE SHIPPER. THIS RECORD DOES NOT ESTABLISH THAT THE EXCLUSIVE USE OF THE CARRIER'S EQUIPMENT WAS EITHER REQUIRED OR DEMANDED BY THE SHIPPER. THE MERE ORDERING OF EQUIPMENT DOES NOT SIGNIFY SUCH A CONDITION, AND IT IS NOT INDICATED THAT THE CARRIER WAS PRECLUDED FROM LOADING ADDITIONAL FREIGHT IN ANY USED SPACE IN THE TRUCKS. CORRESPONDENCE OF THE ADMINISTRATIVE OFFICE HERE INVOLVED REFLECTS ITS CONCURRENCE IN THE VIEW THAT A REQUEST FOR EXCLUSIVE USE OF TRUCK IS A CONDITION PRECEDENT TO THE APPLICATION OF THE CHARGE BASIS SET FORTH IN RULE NO. 110. AN ENDORSEMENT ON THE BILL OF LADING, NOT MADE IN THIS CASE, DEFINITELY STATING THE SHIPPER'S REQUIREMENT FOR THE EXCLUSIVE USE OF A TRUCK ORDERED AND FURNISHED WOULD SERVE TO ESTABLISH THAT FACT. SEE, IN THIS CONNECTION, GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603; A.C.F. BRILL MOTORS CO. V. SUPER SERVICE MOTOR FREIGHT CO., 54 M.C.C. 721; AND THE CLARK THREAD CO., INC. V. PILOT FREIGHT CARRIERS, INC., 62 M.C.C. 185.

INSOFAR AS YOU MIGHT HAVE RECEIVED INFORMAL ADVICE AS TO THE NATURE OF THE ENDORSEMENT TO BE PLACED ON A BILL OF LADING FOR YOUR PROTECTION WHERE A TRUCK OF A CERTAIN SIZE IS ORDERED AND FURNISHED, IT WOULD APPEAR NECESSARY TO CONSIDER SUCH STATEMENTS IN THE LIGHT OF THE PARTICULAR FACTS AND TARIFF PROVISIONS APPLYING IN A SPECIFIC SITUATION; AND IT MAY BE NOTED THAT INFORMAL OPINIONS EXPRESSED BY AN OFFICER OR EMPLOYEE OF THE GENERAL ACCOUNTING OFFICE DO NOT CONSTITUTE OFFICIAL DETERMINATIONS AND ARE NOT CONTROLLING IN OUR AUDIT OF PARTICULAR TRANSACTIONS.

ACCORDINGLY, THE AUDIT ACTION TAKEN IN THIS MATTER IS NOT IN ERROR AND REVISION THEREOF IS NOT JUSTIFIED.