B-132092, OCT. 7, 1957

B-132092, OCT. 7, 1957

TO C. I. WHITTEN TRANSFER COMPANY:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE SETTLEMENT DATED MAY 3, 1957 (CLAIM NO. TK 635293), WHICH DISALLOWED YOUR CLAIM, PER BILL NO. 1596 SUPPLEMENT 1, FOR ADDITIONAL FREIGHT CHARGES IN THE AMOUNT OF $2,337 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF 26,548 POUNDS OF AMMUNITION FROM THE NAVAL ORDNANCE TEST STATION, CHINA LAKE, CALIFORNIA, TO THE NAVAL MINE DEPOT, YORKTOWN, VIRGINIA, ON GOVERNMENT BILL OF LADING NO. N- 30755716, IN JUNE 1956.

THE RECORD SHOWS THAT THE GOVERNMENT BILL OF LADING WAS ISSUED ON JUNE 20, 1956, TO COVER THE MOVEMENT OF 16,500 POUNDS OF ROCKET AMMUNITION WITH EMPTY PROJECTILES WHICH WERE LOADED JUNE 20, 1956, ON RINGSBY TRAILER NR63 -RV41, AND 10,048 POUNDS OF EXPLOSIVES, CONSISTING OF 8,820 POUNDS OF DETONATING FUSES AND 1,228 POUNDS OF EXPLOSIVE BOMBS, WHICH WERE LOADED JUNE 21, 1956, ON RINGSBY TRAILER NRV-445. THE EXPLOSIVES WERE DELIVERED BY YOU AT DESTINATION ON JUNE 27, 1956.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES IN THE AMOUNT OF $2,337, COMPUTED ON THE BASIS OF A MINIMUM WEIGHT OF 30,000 POUNDS AT A RATE OF $7.79 PER 100 POUNDS, AS PROVIDED IN ITEM 600 OF ROCKY MOUNTAIN TARIFF BUREAU, INC., SECTION 22 QUOTATION NO. 52, FIRST REVISED PAGE 76. THEREAFTER, YOU CLAIMED AN ADDITIONAL AMOUNT OF $2,337 ON THE THEORY THAT SINCE TWO TRUCKS WERE LOADED AND MOVED ON DIFFERENT DAYS YOU WERE ENTITLED TO BE PAID ON THE BASIS OF A MINIMUM WEIGHT OF 30,000 POUNDS FOR EACH TRUCK, OR A TOTAL MINIMUM WEIGHT OF 60,000 POUNDS. YOU ALLEGE THAT THE SECOND TRUCK WAS NOT PROVIDED FOR THE CONVENIENCE OF THE CARRIER, BUT WAS NECESSARY BECAUSE THE EXPLOSIVES WERE "NON-COMPATIBLE," REFERRING, PRESUMABLY, TO THE PROVISIONS OF THE LOADING AND STORAGE CHART OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES, SECTION 77.848, SUPPLEMENT 11 TO AMERICAN TRUCKING ASSOCIATIONS, INC., MOTOR CARRIERS' EXPLOSIVES AND DANGEROUS ARTICLES TARIFF NO. 8, M.F.-I.C.C. NO. 5.

THE LOADING AND STORAGE CHART OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES, HOWEVER, SHOWS THAT ONLY THE BOMBS AND THE DETONATING FUSES WERE FORBIDDEN TO BE LOADED TOGETHER. NEVERTHELESS, THESE TWO EXPLOSIVES APPEAR, IN FACT, TO HAVE BEEN LOADED TOGETHER ON THE SECOND TRUCK. THEREFORE, IT DOES NOT APPEAR THAT THE REASON GIVEN BY YOU FOR USE OF THE SECOND TRUCK IS SUSTAINED.

GOVERNMENT BILL OF LADING NO. N-30755716, REFERS ON ITS FACE TO THE 779- CENT RATE PROVIDED IN ITEM 600, ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AGENTS, U.S. GOVERNMENT QUOTATION NO. 52, FOR THE TRANSPORTATION OF EXPLOSIVES BETWEEN THE POINTS INVOLVED IN THIS CASE. THIS RATE IS DESCRIBED AT THE TOP OF FIRST REVISED PAGE 76, WHICH WAS IN EFFECT AT THE TIME OF MOVEMENT, AS "RATES IN CENTS PER 100 POUNDS ON AMMUNITION AND/OR EXPLOSIVES AND/OR FIREWORKS, SUBJECT TO 30,000 POUND VOLUME MINIMUM WEIGHTS (EXCEPT AS NOTED).' THERE IS NO NOTATION QUALIFYING THE APPLICATION OF THE 779-CENT RATE.

AS PROVIDED IN THE GOVERNING CLASSIFICATION, A VOLUME MINIMUM WEIGHT IS THE LOWEST WEIGHT ON WHICH A VOLUME RATING OR RATE WILL BE APPLIED IN COMPUTING CHARGES ON A SHIPMENT TENDERED FOR TRANSPORTATION BY ONE SHIPPER, AT ONE POINT, AT ONE TIME, FOR ONE CONSIGNEE, AT ONE DESTINATION AND COVERED BY ONE BILL OF LADING, WHETHER OR NOT THAT WEIGHT IS CAPABLE OF BEING LOADED ON ONE TRUCK. THE BILL OF LADING COVERING THE SHIPMENT CONFIRMS THE FACT THAT THE FREIGHT WAS SHIPPED FROM ONE POINT, BY ONE SHIPPER, FOR DELIVERY TO ONE CONSIGNEE AT ONE DESTINATION ON ONE BILL OF LADING. BY A LETTER DATED JANUARY 30, 1957, THE UNITED STATES NAVAL ORDNANCE TEST STATION, CHINA LAKE, CALIFORNIA, REPORTED THAT ALL OF THE FREIGHT WAS TENDERED FOR SHIPMENT ON ONE DAY, JUNE 20, 1956. IN YOUR REQUEST FOR REVIEW YOU DENIED THAT THE FREIGHT WAS TENDERED AT ONE TIME. HOWEVER, IN CASES INVOLVING DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, IT IS THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS, IN THE ABSENCE OF CONVINCING EVIDENCE TO THE CONTRARY. SEE 16 COM. GEN. 325; 14 ID. 927, 929.

WHERE FREIGHT IS TENDERED AS ONE SHIPMENT AT ONE TIME, AND IT IS ACCEPTED AND MOVED AS ONE SHIPMENT, THE MERE FACT THAT THE FREIGHT WAS ACTUALLY LOADED AND MOVED ON DIFFERENT DAYS WILL NOT PREVENT THE APPLICATION OF THE VOLUME RATE AT THE VOLUME MINIMUM WEIGHT. SEE WILLINGHAM V. SELIGMAN, 179 F.2D 257.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT, AND IT IS SUSTAINED.