B-138470, OCT. 8, 1959

B-138470, OCT. 8, 1959

TO GALLAGHER FREIGHT LINES:

FURTHER REFERENCE IS MADE TO THE REQUEST IN YOUR LETTER OF JANUARY 12, 1959, YOUR REFERENCE 6-2752, FOR REVIEW OF THE SETTLEMENT WHICH DISALLOWED $377.82 OF THE ADDITIONAL CHARGES OF $464.04 CLAIMED FOR THE TRANSPORTATION OF 9,560 POUNDS OF AMMUNITION FOR CANNON WITHOUT PROJECTILES FROM PARSONS, KANSAS, TO HERLONG, CALIFORNIA, UNDER BILL OF LADING WY-3303176, DATED AUGUST 31, 1953.

YOUR CONTENTION FOR THE GREATER CHARGES BASED ON THE TRUCKLOAD RATE AND MINIMUM WEIGHT, RATHER THAN THE LOWER CHARGES COMPUTED ON THELESS THAN- TRUCKLOAD RATING, IS ASSERTED TO BE SUPPORTED BY THE FINDINGS MADE BY THE INTERSTATE COMMERCE COMMISSION IN ITS DOCKET MC-C-1106, GUS BLASS COMPANY V. POWELL BROTHERS TRUCK LINE, 53 M.C.C. 603. APPARENTLY YOU INTERPRET THE FINDINGS IN THAT DECISION AS ESTABLISHING THE PRINCIPLE THAT THE USE OF SEALS ALONE ENTITLES A CARRIER TO FREIGHT CHARGES BASED ON A TRUCKLOAD RATING. IT WILL BE OBSERVED, HOWEVER, THAT IN THE CASE CONSIDERED BY THE COMMISSION THE SHIPPER HAD IN ADDITION TO SEALING THE VEHICLE, INSTRUCTED THE CARRIER THAT THE SEAL SHOULD NOT BE BROKEN OR REMOVED UNTIL THE VEHICLE ARRIVED AT ITS DESTINATION.

IN THE ABSENCE OF A SHOWING ON THE BILL OF LADING RECORD THAT ANY SUCH SPECIAL INSTRUCTIONS WERE ISSUED TO THE CARRIER RECEIVING THE SHIPMENT HERE INVOLVED, WE REQUESTED ADDITIONAL INFORMATION FROM THE MILITARY TRAFFIC MANAGEMENT AGENCY. IN REPLY WE WERE ADVISED THAT WHILE THE RECORD DID NOT INDICATE AT WHOSE CONVENIENCE THE SEALS WERE APPLIED, IT DID SHOW THAT INSTRUCTIONS WERE NOT ISSUED THAT THE SEALS SHOULD NOT BE BROKEN OR THAT OTHER FREIGHT COULD NOT BE LOADED IN THE VEHICLE. WHILE THE BILL OF LADING SHOWS THAT SEALS WERE USED AT ORIGIN, POSSIBLY TO PROTECT THE LADING UNTIL TENDERED TO THE CARRIER, WE HAVE BEEN UNABLE TO DETERMINE THE ACTUAL PURPOSE SERVED BY THE SEAL, OR WHETHER OR NOT THE SEAL WAS PROTECTED BY THE CARRIERS TO FINAL DESTINATION. IT MAY BE THAT THE SEAL WAS REMOVED AND OTHER FREIGHT TRANSPORTED IN THE SAME VEHICLE, OR EVEN THAT THE GOVERNMENT FREIGHT WAS TRANSFERRED EN ROUTE AND ACTUALLY DELIVERED IN ANOTHER VEHICLE.

IT HAS LONG BEEN RECOGNIZED, AS PROVIDED IN THE MOTOR FREIGHT CLASSIFICATION RULES, THAT LESS-THAN-TRUCKLOAD RATINGS ORDINARILY HAVE APPLICATION ON SHIPMENTS IN QUANTITIES OF LESS THAN THE MINIMUM WEIGHT SPECIFIED FOR VOLUME OR TRUCKLOAD FREIGHT MOVEMENTS. TO JUSTIFY THE PAYMENT OF ANY GREATER CHARGES THAN THOSE BASED ON THE LESS-THAN TRUCKLOAD RATES FOR THIS SHIPMENT, WE BELIEVE THAT IT IS INCUMBENT UPON THE CARRIERS TO FURNISH EVIDENCE THAT INSTRUCTIONS WERE ISSUED THAT THE SEALS WERE NOT TO BE BROKEN AND THAT THE SERVICE ACTUALLY FURNISHED WAS DIFFERENT FROM THAT ORDINARILY GIVEN LESS-THAN-TRUCKLOAD SHIPMENTS. SEE IN THIS CONNECTION, CONTINENTAL MOTORS CORP. V. WENHAM TRANSPORTATION, INC., 67 M.C.C. 83. SEE ALSO UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 355 U.S. 253, RELATIVE TO THE OBLIGATION OF A CARRIER TO PROVE ITS ENTITLEMENT TO PAYMENTS RECEIVED UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66.

IN THE ABSENCE OF EVIDENCE THAT INSTRUCTIONS WERE GIVEN THAT THE SEALS WERE NOT TO BE BROKEN AND THAT THIS SHIPMENT WAS TRANSPORTED UNDER UNBROKEN SEAL FROM ORIGIN TO DESTINATION, PAYMENT OF THE ADDITIONAL CHARGES CLAIMED WOULD NOT BE JUSTIFIED AND THE SETTLEMENT ISSUED ON YOUR CLAIM IS SUSTAINED. THE CHECK FOR THE PARTIAL PAYMENT OF $86.22 DETERMINED TO BE DUE WAS MAILED TO YOUR COMPANY ON JANUARY 9, 1959.