B-130371, MAR. 25, 1957

B-130371: Mar 25, 1957

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INC.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17. THE SHIPMENTS WERE TENDERED TO AND DELIVERED BY UNITED STATES EXPRESS. THIS WAIVER OF CHARGES WAS PROHIBITED BY THE ASSIGNMENT OF CLAIMS ACT OF 1940. IT SEEMS APPROPRIATE TO NOTE THAT YOUR CONTENTIONS AS TO YOUR CLAIMS ARE NOT SUPPORTABLE. 268 POUNDS AND WERE MOVED FROM THE SIERRA ORDNANCE DEPOT. YOU CLAIMED AND WERE PAID $309 ON EACH SHIPMENT COMPUTED ON THE BASIS OF A 30. 340 POUNDS AND WERE CONSIGNED BY THE SIERRA ORDNANCE DEPOT. YOU CLAIMED AND WERE PAID $201 ON EACH SHIPMENT. ITEM NO. 45 READS IN PERTINENT PART AS FOLLOWS: "VEHICLES - EXCLUSIVE USE OF "/A) WHEN EXCLUSIVE USE OF CARRIER'S EQUIPMENT IS REQUESTED BY THE SHIPPER TO MEET THE NEEDS OF SPECIAL CONDITIONS.

B-130371, MAR. 25, 1957

TO SAVAGE TRANSPORTATION COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1956, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATES IN CLAIMS NOS. TK-621602, TK 621603,TK-621604, TK-621606, AND TK-621607, DISALLOWING YOUR SUPPLEMENTAL BILLS FOR AN AGGREGATE OF $410.10, REPRESENTING ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF THREE SHIPMENTS OF RADIO TRANSMITTING AND RECEIVING SETS AND 13 SHIPMENTS OF EMPTY, PRACTICE, PLATE IRON BOMBS OR MINES, DURING JULY AND AUGUST 1954.

THE BILLS OF LADING SHOW THAT THE GOVERNMENT REQUESTED THE EXCLUSIVE USE OF VEHICLES 33 FEET IN LENGTH FOR TRANSPORTATION OF THE SHIPMENTS. THE SHIPMENTS WERE TENDERED TO AND DELIVERED BY UNITED STATES EXPRESS, INC., WHICH CARRIER UNDERTOOK TO WAIVE IN YOUR FAVOR THE FREIGHT CHARGES ON THE INVOLVED BILLS OF LADING. THIS WAIVER OF CHARGES WAS PROHIBITED BY THE ASSIGNMENT OF CLAIMS ACT OF 1940, 54 STAT. 1029, 31 U.S.C. 203. SEE 21 COMP. GEN. 265. ANY RIGHTS ACCRUING UNDER THE CONTRACTS OF TRANSPORTATION REMAIN VESTED IN UNITED STATES EXPRESS, INC., THE CARRIER PERFORMING THE TRANSPORTATION INVOLVED. AND EVEN IF YOU NOW HAD A PROPER INTEREST IN THIS MATTER, IT SEEMS APPROPRIATE TO NOTE THAT YOUR CONTENTIONS AS TO YOUR CLAIMS ARE NOT SUPPORTABLE.

THE THREE SHIPMENTS OF RADIO EQUIPMENT, COVERED BY CLAIM NO. TK 621602, EACH WEIGHED 4,268 POUNDS AND WERE MOVED FROM THE SIERRA ORDNANCE DEPOT, HARLONG, CALIFORNIA, TO FORT MACARTHUR, SAN PEDRO, CALIFORNIA. YOU CLAIMED AND WERE PAID $309 ON EACH SHIPMENT COMPUTED ON THE BASIS OF A 30,000 POUND MINIMUM AT A CLASS A RATE OF $1.03 PER 100 POUNDS, NAMED IN HIGHWAY CARRIERS' TARIFF NO. 2, ISSUED BY THE PUBLIC UTILITIES COMMISSION OF CALIFORNIA. SUBSEQUENTLY, YOU CLAIMED $215.10 ADDITIONAL BASED ON CHARGES OF $381 PER SHIPMENT COMPUTED AT A THIRD CLASS RATE OF $1.27 PER 100 POUNDS NAMED IN HIGHWAY CARRIERS' TARIFF NO. 2, MINIMUM WEIGHT 30,000 POUNDS.

THE 13 SHIPMENTS OF EMPTY PRACTICE BOMBS OR MINES RANGED, IN WEIGHT, BETWEEN 22,780 AND 27,340 POUNDS AND WERE CONSIGNED BY THE SIERRA ORDNANCE DEPOT, FROM HERLONG TO CASTLE AIR FORCE BASE, MERCED, CALIFORNIA. YOU CLAIMED AND WERE PAID $201 ON EACH SHIPMENT, USING A MINIMUM WEIGHT OF 30,000 POUNDS AT A CLASS A RATE OF 67 CENTS PER 100 POUNDS, NAMED IN HIGHWAY CARRIERS' TARIFF NO. 2. BY VARIOUS SUPPLEMENTAL BILLS YOU LATER CLAIMED A TOTAL OF $195 ADDITIONAL REVENUE PREDICATED ON CHARGES OF $216 ON EACH SHIPMENT COMPUTED ON THE BASIS OF A CLASS 4 RATE OF 72 CENTS PER 100 POUNDS.

THE DISPUTE AS TO THE CHARGES PROPERLY APPLICABLE ON THE INVOLVED SHIPMENTS ARISES OUT OF THE CONSTRUCTION OF ITEMS NOS. 45 AND 50 CONTAINED IN UNITED STATES EXPRESS, INC., U.S. GOVERNMENT QUOTATION NO. 2. ITEM NO. 45 READS IN PERTINENT PART AS FOLLOWS:

"VEHICLES - EXCLUSIVE USE OF

"/A) WHEN EXCLUSIVE USE OF CARRIER'S EQUIPMENT IS REQUESTED BY THE SHIPPER TO MEET THE NEEDS OF SPECIAL CONDITIONS, CHARGES SHALL BE ASSESSED BY APPLYING THE APPLICABLE CLASS OR COMMODITY RATE NAMED IN HIGHWAY CARRIERS' TARIFF NO. 2, SUBJECT TO THE EXCEPTIONS PROVIDED HEREIN AND THE FOLLOWING MINIMUM WEIGHTS: (SEE ITEM 15 HEREOF)

TABLE

"LENGTH OF EQUIPMENT (LOADING SPACE) MINIMUM WEIGHTS IN POUNDS

IN LINEAL FEET (SEE NOTES 1 AND 2)

"OVER 22 FEET BUT NOT OVER 33 FEET.. 30,000"

ITEM NO. 15 PROVIDES THAT THE QUOTATION IS TO BE GOVERNED BY WESTERN CLASSIFICATION NO. 75 AND PACIFIC COAST TARIFF BUREAU EXCEPTION SHEET NO. 1, AMONG OTHER PUBLICATIONS. ITEM NO. 50 PROVIDES IN PERTINENT PART:

TABLE

"EXCEPTIONS TO CURRENT WESTERN CLASSIFICATION AND CURRENT EXCEPTION

SHEET

CLASS MINIMUM WEIGHT

COMMODITY RATINGS PER SHIPMENT

"FREIGHT, ALL KINDS (SUBJECT TO ITEM 45) 4 20,000

A 30,000

5 40,000"

IT IS YOUR POSITION REGARDING THIS QUOTATION THAT THE EXCLUSIVE USE OF A VEHICLE PRECLUDES THE ASSESSING OF CHARGES ON THE "FREIGHT, ALL KINDS" RATE BASIS. HOWEVER, THERE IS NOTHING IN THE QUOTATION THAT LEADS TO THIS RESTRICTIVE APPLICATION, BUT ON THE CONTRARY, THE FACT THAT THE ,FREIGHT, ALL KINDS" RATE IS MADE EXPRESSLY SUBJECT TO ITEM NO. 45 WOULD SEEM TO AUTHORIZE THE USE OF THIS RATE IN CONJUNCTION WITH THE MINIMUM WEIGHTS STATED IN THAT ITEM.

BEFORE THE "APPLICABLE CLASS OR COMMODITY RATE NAMED IN HIGHWAY CARRIERS' TARIFF NO. 2," AS PROVIDED IN ITEM NO. 45 OF THE QUOTATION, CAN BE APPLIED TO THE MINIMUM WEIGHTS CONTAINED IN THAT ITEM, THE PROPER CLASSIFICATION MUST BE DETERMINED. THE PROPER CLASSIFICATION IS DETERMINED BY REFERENCE TO ITEM NO. 15 WHICH NAMES THE WESTERN CLASSIFICATION AND THE PACIFIC COAST TARIFF BUREAU EXCEPTION SHEET. EXCEPTIONS TO THE CURRENT WESTERN CLASSIFICATION AND CURRENT EXCEPTION SHEET ARE PROVIDED IN ITEM NO. 50 OF THE QUOTATION. PARAGRAPH (D) OF ITEM NO. 30 PROVIDES, IN EFFECT, THAT IN THE EVENT THAT THE PROVISIONS OF ITEM NO. 50 RESULT IN LOWER CHARGES THAN THOSE ACCRUING BY USE OF THE WESTERN CLASSIFICATION AND EXCEPTION SHEET, SUCH LOWER CHARGES WILL APPLY. IN THE INSTANT CASE, THE PROVISIONS OF ITEM NO. 50, WHEN APPLIED TO THE RATES NAMED IN HIGHWAY CARRIERS' TARIFF NO. 2 ON THE BASIS OF THE 30,000 POUND MINIMUM WEIGHT STATED IN ITEM NO. 45, RESULT IN LOWER CHARGES WHICH, THEREFORE, ARE PROPERLY APPLICABLE.

ACCORDINGLY, THE SETTLEMENT ACTION TAKEN BY OUR TRANSPORTATION DIVISION WAS CORRECT AND IT IS SUSTAINED.