B-135621, JANUARY 29, 1959, 38 COMP. GEN. 527

B-135621: Jan 29, 1959

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WHEN THE SHIPMENT WAS TENDERED TO THE CARRIER WITHOUT INSTRUCTION AS TO THE MANNER OF SHIPMENT. IN THE ABSENCE OF EVIDENCE THAT THE GOVERNMENT REQUIRED EXCLUSIVE USE OF THE VEHICLES THE RATE BASED ON SPACE OCCUPIED IS CORRECT. 1959: REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR STATEMENT OF OVERPAYMENT. IN WHICH AN OVERPAYMENT OF $364.04 WAS ASSERTED AGAINST YOU AS THE RESULT OF OUR AUDIT OF THE FREIGHT CHARGES PAID YOU FOR TRANSPORTING FOUR SHIPMENTS OF STEEL PONTOONS. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES OF $231.86 PER SHIPMENT ON VOUCHER NO. 201617 IN THE JULY 1953 ACCOUNTS OF FRITZ R. THE CHARGES ON EACH SHIPMENT WERE COMPUTED AT A RATE OF $0.57965 PER 100 POUNDS ON A MINIMUM WEIGHT OF 40.

B-135621, JANUARY 29, 1959, 38 COMP. GEN. 527

TRANSPORTATION - RATES - SIZE OF VEHICLE - EXCLUSIVE USE OF CARRIER THE LOADING AND CARRIAGE OF A GOVERNMENT SHIPMENT ON TRUCKS WITH SPECIALLY CONSTRUCTED PLATFORMS TO ACCOMMODATE THE SHIPMENT AND LOADED TO CAPACITY, WHEN THE SHIPMENT WAS TENDERED TO THE CARRIER WITHOUT INSTRUCTION AS TO THE MANNER OF SHIPMENT, MAY NOT BE REGARDED AS A SHIPMENT ON VEHICLES OF A REQUIRED LENGTH ORDERED BY THE SHIPPER TO SUBJECT THE SHIPMENT TO RATES AND MINIMUM WEIGHTS REGARDLESS OF THE SIZE OF VEHICLES, AND IN THE ABSENCE OF EVIDENCE THAT THE GOVERNMENT REQUIRED EXCLUSIVE USE OF THE VEHICLES THE RATE BASED ON SPACE OCCUPIED IS CORRECT.

TO THE COAST COUNTIES EXPRESS, JANUARY 29, 1959:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR STATEMENT OF OVERPAYMENT, GENERAL ACCOUNTING OFFICE FORM NO. 1003, OF NOVEMBER 19, 1956, IN WHICH AN OVERPAYMENT OF $364.04 WAS ASSERTED AGAINST YOU AS THE RESULT OF OUR AUDIT OF THE FREIGHT CHARGES PAID YOU FOR TRANSPORTING FOUR SHIPMENTS OF STEEL PONTOONS, SET UP, FROM RICHMOND, CALIFORNIA, TO PORT HUENEME, CALIFORNIA, DURING APRIL AND JUNE 1953, UNDER BILLS OF LADING NOS. N-31196245, N-31240997, N-31240996, AND N 31240902.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES OF $231.86 PER SHIPMENT ON VOUCHER NO. 201617 IN THE JULY 1953 ACCOUNTS OF FRITZ R. KAHN. THE CHARGES ON EACH SHIPMENT WERE COMPUTED AT A RATE OF $0.57965 PER 100 POUNDS ON A MINIMUM WEIGHT OF 40,000 POUNDS. THIS RATE WAS PUBLISHED IN ITEM NO. 935, SHOWN ON BOTH THE THIRD AND THE FIFTH REVISED PAGE 91A OF PACIFIC STATES MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 3A, ISSUED BY ELMER AHL, AGENT. THE RATE APPLIED ON SHIPMENTS OF " PONTOONS, STEEL, SET UP, 7 GAUGE," TRANSPORTED FROM RICHMOND AND EMORYVILLE TO PORT HUENEME, CALIFORNIA, AND THE MINIMUM WEIGHT WAS SHOWN AS 18,800 POUNDS.

QUOTATION NO. 3A IS A LOOSE-LEAF ISSUE OF CLASS AND COMMODITY RATES WHICH ARE TENDERED FOR APPLICATION ON GOVERNMENT TRAFFIC UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, AND ARTICLE 3, SECTION 530, OF THE CALIFORNIA PUBLIC UTILITIES CODE. THE QUOTATION IS GOVERNED, EXCEPT AS OTHERWISE PROVIDED THEREIN, BY WESTERN CLASSIFICATION NO. 75 ( CONSOLIDATED FREIGHT CLASSIFICATION NO. 20), MF 1I.C.C. NO. 11, SUPPLEMENTS THERETO AND SUCCESSIVE ISSUES THEREOF, AND BY PACIFIC SOUTH COAST FREIGHT BUREAU EXCEPTIONS TARIFF NO. 1-R, MF 1I.C.C. NO. 58, SUPPLEMENTS THERETO AND SUCCESSIVE ISSUES THEREOF.

ON AUDIT OF THE PAYMENT VOUCHER, WE COMPUTED THE OVERPAYMENT BY USING THE SAME RATE, BUT AT A MINIMUM WEIGHT OF 24,300 POUNDS, DERIVED BY APPLYING THE LIGHT AND BULKY ARTICLES RULE, RULE 95 ON FIFTH REVISED PAGE 21 OF THE QUOTATION, WHICH PROVIDES:

(A) ON LIGHT AND BULKY SHIPMENTS WEIGHING LESS THAN 15 POUNDS PER CUBIC FOOT OF SPACE OCCUPIED, CHARGES WILL BE ASSESSED BY APPLYING THE RATE APPLICABLE ON THE BASIS OF 15 POUNDS FOR EACH CUBIC FOOT OF SPACE OCCUPIED.

YOU CONTEND, HOWEVER, THAT THE CHARGES SHOULD BE COMPUTED ON THE BASIS OF A MINIMUM WEIGHT OF 40,000 POUNDS AS REQUIRED BY ITEM 112 OF THE QUOTATION, WHICH PROVIDES:

(A) IN THE EVENT THAT SHIPPER FOR ANY REASON ORDERS EQUIPMENT OF A CERTAIN LENGTH, AND ANNOTATES THE BILL OF LADING TO THAT EFFECT, CHARGES SHALL BE ASSESSED BY APPLYING THE APPLICABLE CLASS OR COMMODITY RATE NAMED IN THIS QUOTATION, SUBJECT TO THE FOLLOWING MINIMUM WEIGHTS:

(1)

LENGTH OF EQUIPMENT ORDERED MINIMUM WEIGHT

IN LINEAL FEET IN POUNDS

OVER 35 FEET----------------------------------------- 40,000

*/B) IN NO EVENT SHALL CHARGES COMPUTED UNDER THE PROVISIONS OF THIS ITEM BE LESS THAN THE CHARGES COMPUTED IN ACCORDANCE WITH ITEM NO. 95.

(1)MEANS ACTUAL LOADING SPACE AVAILABLE.

ITEM 112 IS LIMITED TO APPLY ONLY ON TWO CONDITIONS: FIRST, THAT THE SHIPPER ORDERS EQUIPMENT OF A CERTAIN LENGTH; AND SECOND, THAT THE BILL OF LADING BE ANNOTATED ACCORDINGLY.

AS TO THE FIRST CONDITION, THE RECORD DOES NOT INDICATE, AND YOU APPARENTLY DO NOT CONTEND, THAT THE SHIPPER, IN FACT, SPECIFIED EQUIPMENT OF A PARTICULAR LENGTH. YOU ALLEGE, HOWEVER, THAT THE SHIPPER ORDERED TRUCKS OF A CAPACITY TO HANDLE NINE PONTOONS, AND WOULD NOT ALLOW LESS TO BE LOADED AT ONE TIME; THAT TO FULFILL THIS DEMAND IT WAS NECESSARY TO CONSTRUCT WOODEN PLATFORMS TO BE ATTACHED TO REGULAR SETS OF DOUBLE TRAILERS, EACH OF WHICH MEASURED FROM 40 TO 44 FEET IN LENGTH; THAT THE EQUIPMENT WITH PLATFORM WAS FULLY LOADED TO CAPACITY; AND THAT THIS CONSTITUTES A SHIPPER ORDERING EQUIPMENT OF A REQUIRED LENGTH WITHIN THE INTENTION OF ITEM 112 OF THE QUOTATION. THERE IS NOTHING IN THE RECORD, HOWEVER, TO INDICATE THAT YOU WERE INSTRUCTED TO LOAD THE SHIPMENT IN THE MANNER INDICATED. APPARENTLY, THE METHOD OF LOADING AND THE CHOICE OF EQUIPMENT TO BE USED WAS LEFT TO THE DISCRETION OF THE CARRIER. ON EIGHTH REVISED PAGE 19 OF THE QUOTATION A SHIPMENT IS DEFINED AS A QUANTITY OF FREIGHT TENDERED BY ONE SHIPPER ON ONE SHIPPING DOCUMENT AT ONE POINT OF ORIGIN AT ONE TIME FOR ONE CONSIGNEE AT ONE DESTINATION. THERE IS, IN THIS DEFINITION, NO LIMITATION ON THE QUANTITY OF FREIGHT WHICH MAY BE TENDERED BY A SHIPPER, NOR ON THE SIZE OR QUANTITY OF TRUCKS WHICH MAY BE REQUIRED TO TRANSPORT IT, AND AT THE SAME TIME THESE SHIPMENTS MOVED THE MINIMUM WEIGHTS WERE NOT LIMITED TO TRUCKLOADS. THE GENERAL TARIFF PUBLISHING SCHEME EMPLOYED IN THE COMPILATION OF THE QUOTATION SUBJECTS THE RATES THEREIN TO THE RULES AND REGULATIONS OF CLASSIFICATION AND EXCEPTIONS TARIFFS NAMING RATINGS ON LESS-THAN-CARLOAD AND CARLOAD QUANTITIES OF FREIGHT, AND THERE IS AN ABSENCE IN THE RULES AND REGULATIONS GOVERNING THE QUOTATION OF ANY REFERENCE TO, OR DEFINITION OF, TRUCKLOAD OR VOLUME MINIMUM WEIGHTS. THIS SUGGESTS THAT WHERE THE SHIPPER TENDERED FREIGHT WITHOUT CONDITION, SO AS NOT TO INVOKE THE APPLICABILITY OF QUALIFYING PROVISIONS IN OTHER ITEMS, SUCH AS ITEM NO. 112, THE RATES AND MINIMUM WEIGHTS WERE MEANT TO APPLY REGARDLESS OF THE SIZE OR NUMBER OF VEHICLES UTILIZED BY THE CARRIER TO EFFECT THE DESIRED SERVICE, AND IF THE QUANTITY OF FREIGHT TENDERED REQUIRES MORE THAN ONE TRUCK OR TRAILER, THE DUTY IS ON THE CARRIER TO FURNISH SUITABLE EQUIPMENT. SEE: R.C.A. TRUCK LINES V. GEORGIA RUG MILL, 77 S.E. 2D 442, 444; ATLANTIC COMM. CO. V. BANGOR AND AROOSTOOK R. CO., 266 I.C.C. 651; ARCHER-1DANIELS-1MIDLAND CO. V. ALTON R., 246 I.C.C. 421, 426; SIOUX CITY TERMINAL RY.-1SWITCHING, 241 I.C.C. 53, 63 AND 66 ET SEQ.; PENNSYLVANIA PARAFFINE WORKS V. PENNSYLVANIA R., 34 I.C.C. 179. SEE ALSO: ROYAL MFG. CO. V. HUBER MOTOR EXP., 66 MCC 237.

AS TO THE SECOND CONDITION, THAT OF ANNOTATING THE BILL OF LADING, YOU ASSERT THAT THE ANNOTATIONS WERE NOT MADE BECAUSE NO ONE AT THE SHIPPER'S OFFICE WOULD MAKE THE NOTATION, AND THAT THE SHIPPER ALLEGED SUCH NOTATION WOULD HAVE TO BE MADE BY THE NAVY; BUT THE SHIPPER IS ALLEGED TO HAVE SAID THAT THEY WOULD SHOW ON EACH BILL OF LADING THE SIZE OF TRUCK ORDERED AND LOADED. HOWEVER, THE ONLY NOTATIONS ON THE INVOLVED BILLS OF LADING ARE MADE IN THE SAME BLUE INK AS THE RATE AND CHARGE AND, THEREFORE, APPEAR TO HAVE BEEN ENTERED ON THE BILLS OF LADING BY THE CARRIER. IN ADDITION, NONE OF THE NOTATIONS SHOW THE SIZE OF THE EQUIPMENT, BUT SHOW ONLY THAT THE SHIPMENT WAS MADE "ON ONE TRUCK" OR "IN ONE SET OF DOUBLES.' IN NO INSTANCE IS IT SHOWN THAT THE SHIPPER ORDERED EQUIPMENT OF ANY PARTICULAR SIZE.

YOU ALSO ALLEGE THAT EXCLUSIVE USE OF THE EQUIPMENT WAS REQUESTED AND REQUIRED FOR THE SUBJECT SHIPMENTS, AND THAT THE APPLICATION OF A 40,000 POUND MINIMUM WEIGHT IS THEREFORE REQUIRED BY THE PROVISIONS OF ITEM 75, PUBLISHED ON SECOND AND THIRD REVISED PAGE 20A OF THE QUOTATION. ITEM NO. 75 PROVIDES:

(A) WHEN EXCLUSIVE USE OF CARRIER'S EQUIPMENT IS REQUESTED 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:

(1)

LENGTH OF EQUIPMENT MINIMUM WEIGHT

IN LINEAL FEET IN POUNDS

OVER 35 FEET------------------------------- 40,000

(1) MEANS ACTUAL LOADING SPACE AVAILABLE.

THE DEPARTMENT OF THE NAVY REPORTED, HOWEVER, THAT THE ROUTE ORDER COVERING THE PRESENT SHIPMENTS DO NOT AUTHORIZE EXCLUSIVE USE OF VEHICLES. IN CASES INVOLVING DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE UNBROKEN RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS. SEE: 16 COMP. GEN. 325; 14 ID. 927, 929.

ACCORDINGLY, FOR THE REASONS STATED ABOVE, OUR AUDIT ACTION APPEARS TO HAVE BEEN CORRECT. THE OVERPAYMENT OF $364.04 SHOULD BE REFUNDED PROMPTLY.