B-142447, FEB 6, 1961

B-142447: Feb 6, 1961

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BRIDGEMAN: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 25. FOR THE SERVICE INVOLVED THE CARRIER ORIGINALLY BILLED AND WAS PAID A TOTAL OF $629.85. THE ALLOWABLE CHARGES WERE FOUND TO BE $360. DEDUCTION WAS MADE FROM AMOUNTS OTHERWISE DUE ON A CURRENT BILL. STATING THAT THE ORIGIN CARRIER WAS ANNISTON MOTOR EXPRESS. THAT THE DEATON TENDER IS THEREFORE NOT APPLICABLE. WAS UNABLE TO ACCEPT THE SHIPMENTS BECAUSE OF A DRIVERS' STRIKE. THAT THE ACTUAL BILL OF LADING CONTRACT WAS MADE BY MR. THE CLAIM WAS DISALLOWED IN VIEW OF THE REPORT OF THE ADMINISTRATIVE OFFICE INDICATING THAT WHILE THE SHIPMENTS WERE SIGNED FOR BY A DRIVER FOR ANNISTON MOTOR EXPRESS. B. TIMMS ON THE BILLS OF LADING DID NOT INDICATE THAT HE WAS ACTING AS AN AGENT OR EMPLOYEE OF DEATON TRUCK LINE.

B-142447, FEB 6, 1961

TO LESTER N. BRIDGEMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 25, 1960, AND APRIL 4, 1960, CONCERNING THE CLAIM OF CAMPBELL "66" EXPRESS, INC., FOR ADDITIONAL FREIGHT CHARGES FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY FROM ANNISTON ORDNANCE DEPOT, BYNUM, ALABAMA, TO NEW ORLEANS, LOUISIANA, UNDER GOVERNMENT BILLS OF LADING WY-6228046 AND WY-6228047, IN JUNE 1956.

FOR THE SERVICE INVOLVED THE CARRIER ORIGINALLY BILLED AND WAS PAID A TOTAL OF $629.85, PRESUMABLY ON THE BASIS OF A CLASS 70 RATE OF $1.70 PER 100 POUNDS PROVIDED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 501, MF-I.C.C. NO. 611. UPON AUDIT OF THE PAYMENT VOUCHER BY OUR OFFICE, THE ALLOWABLE CHARGES WERE FOUND TO BE $360, COMPUTED ON THE BASIS OF A RATE OF 60 CENTS PER 100 POUNDS AND A MINIMUM WEIGHT OF 30,000 POUNDS ON EACH OF THE TWO VEHICLES USED, IN ACCORDANCE WITH DEATON TRUCK LINE, INC., TENDER NO. 137. UPON THE FAILURE OF THE CARRIER TO MAKE REFUND OF THE OVERCHARGE OF $629.85, DEDUCTION WAS MADE FROM AMOUNTS OTHERWISE DUE ON A CURRENT BILL. THE CARRIER FILED A RECLAIM VOUCHER, STATING THAT THE ORIGIN CARRIER WAS ANNISTON MOTOR EXPRESS, RATHER THAN DEATON TRUCK LINE, INC., AND THAT THE DEATON TENDER IS THEREFORE NOT APPLICABLE. IT FURTHER STATED THAT DEATON, SHOWN AS ORIGIN CARRIER ON THE BILLS OF LADING, WAS UNABLE TO ACCEPT THE SHIPMENTS BECAUSE OF A DRIVERS' STRIKE, AND THAT THE ACTUAL BILL OF LADING CONTRACT WAS MADE BY MR. B. B. TIMMS, A DRIVER FOR ANNISTON MOTOR EXPRESS. THE CLAIM WAS DISALLOWED IN VIEW OF THE REPORT OF THE ADMINISTRATIVE OFFICE INDICATING THAT WHILE THE SHIPMENTS WERE SIGNED FOR BY A DRIVER FOR ANNISTON MOTOR EXPRESS, ARRANGEMENTS HAD BEEN MADE BETWEEN THE TWO CARRIERS FOR ANNISTON'S DRIVER TO PULL THE TRAILERS (VAN TYPE TRAILERS BELONGING TO DEATON TRUCK LINE) INTO ANNISTON FOR DEATON TRUCK LINE, INC.

WITH YOUR REQUEST FOR A REVIEW OF THE SETTLEMENT YOU ENCLOSED COPIES OF CAMPBELL "66" EXPRESS FREIGHT BILLS SHOWING "AMEX," OR ANNISTON MOTOR EXPRESS AS CONNECTING CARRIER AND A COPY OF AN AFFIDAVIT, SIGNED BY J. CARL PRESTON, TRAFFIC MANAGER OF DEATON TRUCK LINE AT BIRMINGHAM, ALABAMA, RECITING THAT THE SIGNATURE OF B. B. TIMMS ON THE BILLS OF LADING DID NOT INDICATE THAT HE WAS ACTING AS AN AGENT OR EMPLOYEE OF DEATON TRUCK LINE, INC., THAT HE HAD NO AUTHORITY TO SIGN FOR OR ON BEHALF OF SAID COMPANY, THAT THE SHIPMENTS WERE NOT HANDLED BY DEATON AND NO COMPENSATION WAS DERIVED THEREFROM BY SAID CARRIER, THAT THERE WAS NOT IN EXISTENCE ON JUNE 5, 1956, ANY AGREEMENT OR CONTRACTUAL RELATIONSHIP BETWEEN DEATON AND ANNISTON MOTOR EXPRESS WITH RESPECT TO THE SHIPMENTS, AND THAT NOTICE WAS GIVEN TO THE GOVERNMENT DEPOT OF DEATON'S INABILITY TO PROVIDE SERVICE BECAUSE OF THE STRIKE. IN VIEW OF THIS ADDITIONAL INFORMATION WE REQUESTED THE ADMINISTRATIVE OFFICE TO RECONSIDER THE ENTIRE MATTER. HAVE NOW BEEN INFORMED BY MR. W. W. OWENS, TRANSPORTATION OFFICER OF THE ANNISTON ORDNANCE DEPOT, WHO WAS ALSO SERVING IN THE SAME CAPACITY AT THE TIME, THAT ON THE DAY OF THE TRANSACTION MR. EDWARD CARTER, IDENTIFIED AS ,TERMINAL MANAGER, DEATON TRUCK LINES, INC., ANNISTON, ALABAMA," ADVISED THAT NOT ALL OF THEIR DRIVERS WERE ON STRIKE AND TWO COMPANY DRIVERS WERE "SET-UP TO PULL THE TRAILERS TO NEW ORLEANS" AND, FURTHER, THAT "MR. CARTER ISSUED AUTHORITY THROUGH THIS (ORDNANCE DEPOT) OFFICE FOR MR. TIMMS TO PULL THE TRAILERS FROM THIS DEPOT TO THEIR TERMINAL FOR DEATON TRUCK LINES, INC.' THE ISSUE RAISED IS ONE OF FACT--- WHETHER DEATON'S TERMINAL MANAGER, WHO, IN THAT CAPACITY, OBVIOUSLY HAD AUTHORITY TO AUTHORIZE TIMMS TO ACT AS DEATON'S AGENT FOR PICKING UP THE SHIPMENTS, DID IN FACT MAKE SUCH AN AUTHORIZATION. ON DISPUTED QUESTIONS OF FACT, IT IS THE LONG- STANDING PRACTICE OF OUR OFFICE TO ACCEPT AS ACCURATE THE REPORT OF THE ADMINISTRATIVE OFFICE IN THE ABSENCE, AS HERE, OF EVIDENCE TO THE CONTRARY SUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS THEREOF.

MOREOVER, THE BILLS OF LADING THEMSELVES, UPON WHICH THE CLAIMANT RELIES AS BASIS FOR PAYMENT, DEFINITELY INDICATE THAT TIMMS WAS PURPORTING TO ACT AS AGENT FOR DEATON. IN THE SPACE FOR THE NAME OF INITIAL TRANSPORTATION COMPANY AT THE TOP OF EACH FORM AND IN THE SPACE FOR THE TRANSPORTATION COMPANY AT THE BOTTOM OF THE PAGE THERE APPEARS THE TYPED ENTRY "DEATON TRUCK LINES, INC.' AND IN THE SPACE AT THE BOTTOM CONTAINING THE WORDS "SIGNATURE OF AGENT" THERE APPEARS, IN ADDITION TO HIS TYPED NAME, THE HANDWRITTEN SIGNATURE OF B. B. TIMMS. THE BILLS OF LADING BOTH SHOW "DEATON TRK" IN THE SPACE RESERVED FOR THE ROUTING AND BEAR THE NOTATION "DEATON QUOTE NO. 73.' THIS NOTATION TOGETHER WITH THE SHOWING OF DEATON AS INITIAL CARRIER CONSTITUTED CLEAR NOTICE TO CAMPBELL "66" EXPRESS THAT THE SHIPMENTS HAD BEEN TENDERED UNDER A SPECIAL RATE QUOTATION OF THE FORMER COMPANY, AND THAT IN TRANSPORTING THE SHIPMENTS UNDER BILLS OF LADING SO NOTED, CAMPBELL "66" EXPRESS MUST BE CONSIDERED TO HAVE CONCURRED, OR "CONSCIOUSLY ACQUIESCED" IN THE APPLICATION OF THE SPECIAL RATES. IN THIS CONNECTION, COMPARE UNITED STATES V. BETHKE, 132 F.SUPP. 22, 26. THE CONTRACT CONTEMPLATED BY THE PARTIES WAS BREACHED BY REASON OF THE FAILURE TO TRANSPORT THE SHIPMENT VIA DEATON TRUCK LINE AND WE BELIEVE THAT THE ALLOWABLE CHARGES SHOULD BE LIMITED TO THOSE APPLICABLE ON THE BASIS OF THE CONTRACT TO WHICH THE GOVERNMENT AGREED. SEE SUBSTITUTED FREIGHT SERVICE, 232 I.C.C. 683, 691; BENNETT V. MISSOURI PACIFIC RY.CO., 164 P. 1084; REYNOLDS V. ADAMS EXPRESSCO., 90 S.E. 510.

IN VIEW OF THE SHOWING OF DEATON TRUCK LINE AS INITIAL CARRIER ON THE BILLS OF LADING AND THE LATEST ADMINISTRATIVE REPORT DENYING, IN EFFECT, THAT THE INFORMATION SHOWN ON THE BILLS WAS IN ERROR, AND SINCE THE NOTATION ON THE BILLS OF LADING SHOWING THAT THE SHIPMENTS WERE MADE UNDER DEATON'S SPECIAL TENDER CONSTITUTED DUE NOTICE TO CAMPBELL "66" EXPRESS OF THAT FACT, WE ARE OF THE VIEW THAT, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT WAS CORRECT, AND IT IS THEREFORE SUSTAINED.