B-139340, JUL. 29, 1959

B-139340: Jul 29, 1959

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 8. FOR YOUR SERVICES YOU CLAIMED AND WERE PAID $523.60. THE AMOUNT OF THE DETERMINED OVERCHARGE OF $71.65 WAS COLLECTED BY SET-OFF FROM AMOUNTS OTHERWISE DUE YOU. YOU REITERATE YOUR PREVIOUS CONTENTION THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE NAVY. CONTAINS THE FOLLOWING PROVISION: "EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS: "EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER (SHIPPER'S SIGNATURE)" " BILL OF LADING N-30864154 IS NOT MARKED OR STAMPED IN THE REQUIRED MANNER. THAT IS. DOES NOT ESTABLISH THAT EXCLUSIVE USE WAS REQUESTED OR "ORDERED BY SHIPPER.

B-139340, JUL. 29, 1959

TO COMMERCIAL MOTOR FREIGHT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1959, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF FEBRUARY 9, 1959, WHICH DISALLOWED YOUR CLAIM FOR $71.65, PER YOUR BILL SUPP-45690, ASSERTED IN CONNECTION WITH THE TRANSPORTATION OF ORDNANCE STORES, WEIGHING 17,250 POUNDS, FROM PROVIDENCE, RHODE ISLAND, TO CINCINNATI, OHIO, UNDER GOVERNMENT BILL OF LADING NO. N-30864154, IN FEBRUARY 1956.

FOR YOUR SERVICES YOU CLAIMED AND WERE PAID $523.60, BASED UPON A FIRST- CLASS RATE OF $3.74 PER 100 POUNDS, APPLIED TO A MINIMUM WEIGHT OF 14,000 POUNDS, AS PRESCRIBED IN ITEM 130 OF EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF NO. 31-A. IN OUR AUDIT OF YOUR ORIGINAL BILLING, WE APPLIED THE CLASS 70 (TRUCKLOAD) RATE OF $2.62 PER 100 POUNDS TO THE ACTUAL WEIGHT OF THE SHIPMENT, AS PRESCRIBED IN ITEM 73560 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3 AND TARIFF NO. 31-A, MAKING AN AUTHORIZED PAYMENT THEREFOR OF $451.95. THE AMOUNT OF THE DETERMINED OVERCHARGE OF $71.65 WAS COLLECTED BY SET-OFF FROM AMOUNTS OTHERWISE DUE YOU.

IN YOUR LETTER OF APRIL 8, 1959, YOU REITERATE YOUR PREVIOUS CONTENTION THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE NAVY, AND THAT THE SHIPMENT MOVED UNDER SEAL NO. 2372 APPLIED BY NAVY PERSONNEL. FURTHER, YOU CONTEND THAT THE EXCLUSIVE USE RULE HAS BEEN SANCTIONED BY THE INTERSTATE COMMERCE COMMISSION, AND THAT TO ALLOW THE THE GOVERNMENT A REFUND IN THE AMOUNT CLAIMED TO BE DUE FOR THIS SHIPMENT WOULD BE CONTRARY TO LAW.

THE BILL OF LADING INVOLVED BORE THE FOLLOWING NOTATION:

"EXCLUSIVE USE OF VEHICLE AUTHORIZED "NAVY SEALS APPLIED TO EQUIPMENT. DO NOT BREAK SEALS EXCEPT IN EMERGENCY OR WITH PRIOR APPROVAL OF THE NAVY DEPARTMENT. IF BROKEN, APPLY CARRIER SEALS IMMEDIATELY AND NOTIFY INSPECTOR OF NAVAL MATERIAL, C/O CROSLEY DIV., CINCINNATI, OHIO.'"

ITEM 130 OF TARIFF NO. 31-A, UPON WHICH YOU RELY IN SUPPORT OF YOUR CLAIM FOR CHARGES BASED ON THE EXCLUSIVE USE OF THE VEHICLE INVOLVED, CONTAINS THE FOLLOWING PROVISION:

"EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS:

"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER

(SHIPPER'S SIGNATURE)" "

BILL OF LADING N-30864154 IS NOT MARKED OR STAMPED IN THE REQUIRED MANNER, THAT IS, THE NOTATION, AS MADE, DOES NOT ESTABLISH THAT EXCLUSIVE USE WAS REQUESTED OR "ORDERED BY SHIPPER," NOR DOES THE SHIPPER'S (OR ANY OTHER) SIGNATURE APPEAR UNDER THE BILL OF LADING NOTATION, WHICH SHOWS ONLY THAT EXCLUSIVE USE WAS "AUTHORIZED," WITHOUT ANY INDICATION AS TO THE PARTY RESPONSIBLE FOR THAT NOTATION. STRICT COMPLIANCE WITH TARIFF REQUIREMENTS IS ESSENTIAL AS A CONDITION TO THEIR APPLICABILITY. SEE SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CARRIER CASES 710; GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 N.C.C. 603, 605.

IN ADDITION TO THE FACT THAT THERE WAS A FAILURE TO PLACE THE RELEVANT NOTATIONS ON THE BILL OF LADING IN THE FORM REQUIRED BY THE TARIFF, SO AS TO UNEQUIVOCALLY ESTABLISH THAT EXCLUSIVE USE WAS DESIRED AND ORDERED, IT IS NOTED THAT BILL OF LADING N-30864154 ALSO CONTAINS A NOTATION, DIRECTLY ABOVE THE ONE TO THE EFFECT THAT THE EXCLUSIVE USE OF VEHICLE WAS AUTHORIZED (NOT ORDERED), READING:

"RATE 262 MIN WT 16000 T/L CLASS 70 TARIFF ECM 31-A"

SUCH A NOTATION REFLECTS THE SHIPPER'S INTENTION THAT THE SHIPMENT BE ACCORDED TRUCKLOAD SERVICE AT THE TRUCKLOAD RATE ($2.62 PER 100 POUNDS), TO WHICH WE GAVE EFFECT IN COMPUTING THE ALLOWANCE CHARGES. THE SITUATION SUGGESTS THAT THE 125 CANS OF ORDNANCE STORES, WEIGHING 17,250 POUNDS, AS DESCRIBED ON BILL OF LADING N-30864154, WERE SUFFICIENT TO FILL THE VEHICLE USED TO CAPACITY. WHERE A VEHICLE IS FULLY LOADED, EVEN IF IT BE ASSUMED, BUT NOT ADMITTED ON THIS RECORD, THAT THE EXCLUSIVE USE OF THE VEHICLE CONTAINING THE SHIPMENT ORDERED IN ACCORDANCE WITH THE TERMS OF THE PERTINENT TARIFF PROVISION, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN- TRUCKLOAD SHIPMENTS. IN SUCH A CASE THE APPLICABLE CHARGES PROPERLY SHOULD BE BASED ON THE TRUCKLOAD RATE APPLIED TO THE ACTUAL WEIGHT, IF IN EXCESS OF THE MINIMUM WEIGHT, AS IN THE PRESENT MATTER. SEE CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576.

OUR SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM WAS CONSISTENT WITH THE FOREGOING VIEWS AND, ACCORDINGLY, IT IS SUSTAINED.