B-140242, AUG. 26, 1960

B-140242, AUG. 26, 1960

TO GALLAGHER FREIGHT LINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1960, REQUESTING REVIEW OF THE SETTLEMENT ACTION TAKEN ON SEVERAL OF YOUR SUPPLEMENTAL BILLS FOR ADDITIONAL FREIGHT CHARGES ON SHIPMENTS MOVING FROM WASHINGTON, D.C., TO OGDEN, UTAH.

IN OUR DECISION B-140242, OF JANUARY 8, 1960, YOU WERE INFORMED THAT A REVISED SETTLEMENT WOULD ISSUE IN CLAIM NO. TK-670150, COVERING A SHIPMENT OF PRINTED MATTER AND PAPER FORMS MOVING ON BILL OF LADING NO. WY- 6927463. A REVISED SETTLEMENT CERTIFICATE WAS ISSUED ON JULY 1, 1960, IN THE AMOUNT OF $182.06, SINCE YOUR COMPANY WAS NOT A PARTY TO ROADWAY EXPRESS TENDER NO. 738. IN THE MENTIONED DECISION WE ALSO INFORMED YOU THAT ADDITIONAL INFORMATION WAS BEING OBTAINED FROM THE SHIPPING FACILITY CONCERNING THE SHIPMENT MOVING UNDER BILL OF LADING NO. WY-6927415, CLAIM NO. TK-670269. THE INFORMATION WE HAVE RECEIVED SHOWS THAT THE SHIPMENT MOVING UNDER BILL OF LADING NO. WY-6027415 CONSISTED OF 29,873 POUNDS OF PAPER FORMS AND 2,819 POUNDS OF BOOKS, N.O.I. THE CHARGES ARE BEING RECOMPUTED ACCORDINGLY AND A REVISED CERTIFICATE OF SETTLEMENT SHOULD REACH YOU IN THE NEAR FUTURE.

THE REMAINING FOUR CLAIMS (NOS. TK-675876, 877, 878, AND 884) COVER FOUR SHIPMENTS DESCRIBED ON THE BILLS OF LADING AS "PRINTED FORMS.' EACH BILL OF LADING IS MARKED "RATE: $3.13 PER CWT. TENDER NO. 89.' ALL OF THE SHIPMENTS WERE PICKED UP AT ORIGIN BY ROADWAY EXPRESS, AND ARE SPECIFICALLY ROUTED VIA NAVAJO FREIGHT LINES, GALLAGHER FREIGHT LINES.

IN CLAIM NO. TK-675878, BILL OF LADING NO. GP-114162, WE ALLOWED YOUR SUPPLEMENTAL BILL NO. 42750, 1-451394, 12-5-58, IN THE AMOUNT OF $194.20, BECAUSE THE BILL OF LADING CONTRACT REQUIRED A STOP-OFF FOR PARTIAL UNLOADING, AND TENDER NO. 89, TO WHICH THE SERVICE CARRIERS ARE JOINT PARTIES, DOES NOT CONTAIN A PROVISION FOR PARTIAL UNLOADING EN ROUTE.

THE OTHER SHIPMENTS CONTAINED INCOME TAX PAMPHLETS. IT IS TRUE THAT THE DESCRIPTION IN TENDER NO. 89,"PAPER FORMS" IS NOT ACCURATELY DESCRIPTIVE OF THE ARTICLES SHIPPED; HOWEVER, THE ORIGIN CARRIER KNEW OF THE CONSIST OF THESE SHIPMENTS WHEN THE RATE WAS QUOTED AND ACKNOWLEDGED THAT TENDER NO. 89 WAS INTENDED TO BE AND WAS APPLICABLE TO INCOME TAX PAMPHLETS CONTAINING THE INCOME TAX FORMS AND THE PRINTED INSTRUCTIONS. WE ARE ENCLOSING A COPY OF A LETTER DATED FEBRUARY 18, 1960, FROM ROADWAY EXPRESS TO THE GOVERNMENT PRINTING OFFICE, EXPLAINING THE MISTAKE IN THE TERM USED, THUS REFLECTING THE UNDERSTANDING OF THE PARTIES THAT "PAPER FORMS" IN THIS INSTANCE EMBRACED INCOME TAX PAMPHLETS.

IN YOUR LETTER OF JUNE 17, 1960, YOU STATE THAT: "THE I.C.C. ACT CLEARLY SUPPORTS THE FACT THAT CARRIER NOT ONLY HAS THE OPTION BUT IS LEGALLY OBLIGED TO ASSESS THE CORRECT CURRENT RATE.' WE DO NOT QUESTION THE VALIDITY OF THAT STATEMENT AS TO COMMERCIAL TRANSACTIONS BUT THE INTERSTATE COMMERCE ACT SPECIALLY PERMITS GOODS TO BE CARRIED FOR THE UNITED STATES FREE OR AT REDUCED RATES. 49 U.S.C. 22 AND 317. SEE MOTOR CARGO V. UNITED STATES, 129 CT.CL. 493 (1954). SINCE YOUR COMPANY WAS A PARTY TO TENDER NO. 89, ITS APPLICATION WAS PROPER IN THE PRESENT CASE.

A CERTIFICATE OF SETTLEMENT IN CLAIM NO. TK-675876 WHICH COVERED THE SHIPMENT MOVING UNDER BILL OF LADING NO. GP-114055, WAS ISSUED IN YOUR FAVOR FOR $199.23. THIS AMOUNT WAS PAID BY CHECK NO. 109468, DATED NOVEMBER 10, 1959. YOU ARE NOT ENTITLED TO RETAIN THIS PAYMENT SINCE TENDER NO. 89 IS ALSO APPLICABLE ON THE SHIPMENT INVOLVED. ACCORDINGLY, THE AMOUNT OF $199.23 SHOULD BE REFUNDED PROMPTLY. OUR SETTLEMENTS IN THE OTHER THREE CLAIMS INVOLVING THE INCOME TAX PAMPHLETS ARE CORRECT ON THE BASIS OF THE RECORDS AS FURTHER DEVELOPED AND THOSE SETTLEMENTS ARE THEREFORE SUSTAINED.