B-142679, JUL. 1, 1960

B-142679: Jul 1, 1960

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INC.: REFERENCE IS MADE TO YOUR FOUR LETTERS OF APRIL 20. FOR TRANSPORTATION FURNISHED THE GOVERNMENT AND FOR WHICH YOU CONTEND EXCLUSIVE USE OF VEHICLE WAS REQUESTED AND FURNISHED. WE HAVE COMPLETED OUR REVIEW OF THE ACCOUNTS IN QUESTION AND HAVE AUTHORIZED THE ISSUANCE OF REVISED SETTLEMENTS WHICH SHOULD REACH YOU IN DUE COURSE. IN CONNECTION WITH YOUR CLAIMS FOR $131 ON BILL NO. 27751 (TK- 676077) AND $202.80 ON BILL NO. 27750 (TK-676078) WE HAVE A DIFFERENT SITUATION. WHICH BEARS A NOTATION TO THE EFFECT THAT EXCLUSIVE USE OF TRAILER WAS AUTHORIZED. IT SHOULD BE NOTED THAT THE FREIGHT BILL WAS DATED SOME EIGHT DAYS AFTER THE SHIPMENT WAS TENDERED TO THE CARRIER FOR TRANSPORTATION. THE APPLICABLE TARIFF REQUIREMENT RELATIVE TO EXCLUSIVE USE OF VEHICLE READS THE SAME IN EACH CASE AND PROVIDES IN PERTINENT PART AS FOLLOWS: "EACH BILL OF LADING AND FREIGHT BILL COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS: "EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER.'" IT IS TO BE NOTED THAT THE RULE PROVIDES THAT WHERE EXCLUSIVE USE OF VEHICLE IS ORDERED.

B-142679, JUL. 1, 1960

TO MILLER MOTOR EXPRESS, INC.:

REFERENCE IS MADE TO YOUR FOUR LETTERS OF APRIL 20, 1960, REQUESTING A REVIEW OF OUR DISALLOWANCES OF YOUR CLAIMS FOR ADDITIONAL CHARGES OF $334.97 ON BILL NO. 27757 (TK-676071), $131 ON BILL NO. 27751 (TK 676077), $202.80 ON BILL NO. 27750 (TK-676078), AND $168.47 ON BILL 27755 (TK- 676080), FOR TRANSPORTATION FURNISHED THE GOVERNMENT AND FOR WHICH YOU CONTEND EXCLUSIVE USE OF VEHICLE WAS REQUESTED AND FURNISHED.

AS TO THOSE SHIPMENTS COVERED BY OUR CLAIMS TK-676071 AND TK-676080, WE HAVE COMPLETED OUR REVIEW OF THE ACCOUNTS IN QUESTION AND HAVE AUTHORIZED THE ISSUANCE OF REVISED SETTLEMENTS WHICH SHOULD REACH YOU IN DUE COURSE.

HOWEVER, IN CONNECTION WITH YOUR CLAIMS FOR $131 ON BILL NO. 27751 (TK- 676077) AND $202.80 ON BILL NO. 27750 (TK-676078) WE HAVE A DIFFERENT SITUATION. CLAIM TK-676077 COVERS A SHIPMENT MOVING UNDER BILL OF LADING N-31098912 DATED SEPTEMBER 28, 1956, FOR WHICH YOU FURNISH A COPY OF YOUR FREIGHT BILL NO. E 669515 DATED OCTOBER 6, 1956, WHICH BEARS A NOTATION TO THE EFFECT THAT EXCLUSIVE USE OF TRAILER WAS AUTHORIZED. IT SHOULD BE NOTED THAT THE FREIGHT BILL WAS DATED SOME EIGHT DAYS AFTER THE SHIPMENT WAS TENDERED TO THE CARRIER FOR TRANSPORTATION. MOREOVER, BILL OF LADING N-31098912 DOES NOT SHOW ANY NOTATIONS RELATING TO EXCLUSIVE-USE SERVICE. CLAIM TK-676078 COVERS THE SHIPMENT MOVING UNDER BILL OF LADING WY-7495460 DATED NOVEMBER 28, 1956, AND YOU SUPPORT THIS CLAIM WITH A COPY OF YOUR FREIGHT BILL NO. E 757650 DATED NOVEMBER 29, 1956, WHICH BEARS THE NOTATION: "EXCLUSIVE USE OF TRAILER.' HOWEVER, BILL OF LADING WY 7495460 BEARS NO NOTATION RELATIVE TO EXCLUSIVE USE OF VEHICLE SERVICE.

THE APPLICABLE TARIFF REQUIREMENT RELATIVE TO EXCLUSIVE USE OF VEHICLE READS THE SAME IN EACH CASE AND PROVIDES IN PERTINENT PART AS FOLLOWS:

"EACH BILL OF LADING AND FREIGHT BILL COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS: "EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER.'"

IT IS TO BE NOTED THAT THE RULE PROVIDES THAT WHERE EXCLUSIVE USE OF VEHICLE IS ORDERED, AN APPROPRIATE NOTATION MUST BE MADE ON THE BILL OF LADING AND FREIGHT BILL. THE INVOLVED BILLS OF LADING WERE NOT SO ANNOTATED. THE INTERSTATE COMMERCE COMMISSION HELD IN GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, THAT THE OMISSION OF A SIMILAR ENDORSEMENT ON THE BILL OF LADING INVOLVED IN THAT CASE WAS A DEFECT FATAL TO THE APPLICATION OF CHARGES BASED ON AN EXCLUSIVE USE OF VEHICLE RULE EVEN THOUGH EXCLUSIVE USE OF VEHICLE SERVICE WAS ACTUALLY RENDERED.

IN YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIMS YOU STATE THAT IT IS A WIDELY ACCEPTED AND LONG STANDING PRACTICE OF THE GOVERNMENT TO ISSUE ITS OWN BILLS OF LADING AND THEREFORE IT IS UNREASONABLE TO HOLD CARRIERS LIABLE FOR THE FAILURE TO HAVE THE PROPER NOTATIONS ENDORSED UPON THE BILLS OF LADING. IT SEEMS TO BE THE ACCEPTED PRACTICE OF LARGE BUSINESS ENTERPRISES, AS WELL AS OF THE GOVERNMENT, TO PREPARE THEIR OWN BILLS OF LADING. SEE DOMESTIC BILL OF LADING AND LIVESTOCK CONTRACT, 172 I.C.C. 362, 264; EMERGENCY FREIGHT CHARGES, 1935, 208 I.C.C. 4, 51. THAT FACT, HOWEVER, DOES NOT RELIEVE THE MOTOR CARRIERS FROM THE DUTY IMPOSED ON THEM BY SECTIONS 20 (11) AND 219 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11) AND 319, OF ISSUING, AS DISTINGUISHED FROM PREPARING, APPROPRIATE BILLS OF LADING. WHEN BILLS OF LADING ARE PREPARED BY SHIPPERS, MOTOR CARRIERS HAVE THE OBLIGATION OF REFRAINING FROM EXECUTING THOSE WHICH LAWFULLY CANNOT BE COMPLIED WITH OR WHICH CONTAIN CONFLICTING PROVISIONS. SEE EXPOSITION COTTON MILLS V. SOUTHERN RY.CO., 234 I.C.C. 441, 442; SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY R.CO., 274 I.C.C. 245, 247. WHILE GOVERNMENT BILLS OF LADING ARE ESPECIALLY DESIGNED FOR USE BY THE GOVERNMENT, THERE IS NOTHING ON THEM WHICH RELIEVES CARRIERS, OR THE GOVERNMENT FROM OBSERVING THE CONDITIONS IMPOSED BY EXCLUSIVE USE OR SIMILAR RULES IN A TARIFF, EXCEPT AS TO DEPARTURES OR WAIVERS PROPERLY MADE THE SUBJECT OF AGREEMENT UNDER SECTIONS 22 AND 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 AND 317 (B).

YOU STATE THAT THE CONSIGNEE'S SIGNATURE ON THE BILL OF LADING CERTIFYING AS TO THE RECEIPT OF THE SHIPMENT PROVIDES SUFFICIENT PROOF THAT EXCLUSIVE -USE SERVICE WAS PERFORMED. THE CERTIFICATION TO WHICH YOU REFER MERELY RECITES WHAT PROPERTY WAS RECEIVED AT DESTINATION, THE CONDITION OF SUCH PROPERTY AND WHETHER DELIVERY WAS BY THE GOVERNMENT OR ITS AGENT. THIS CERTIFICATION DOES NOT INDICATE WHAT SERVICES WERE OR WERE NOT ACCORDED THE SHIPMENT.

YOU STATE ALSO THAT OUR DISALLOWANCE WAS CONTRARY TO SECTION 3065.10 OF OUR "GAO POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES" (5 GAO 3065.10) IN THAT "WHERE ACCESSORIAL OR SPECIAL SERVICES ARE ORDERED BUT WERE NOT FURNISHED, THE BILL OF LADING SHALL BE SO ANNOTATED" AND SUCH NOTATIONS WERE NOT INDICATED ON THE SUBJECT BILLS OF LADING. IN THIS CASE THE QUESTION OF SUCH NOTATION IS IRRELEVANT SINCE THE BILLS OF LADING WERE NOT ANNOTATED SO AS TO INDICATE A REQUEST FOR EXCLUSIVE USE OF VEHICLE SERVICE.

ACCORDINGLY, THE DISALLOWANCE OF CLAIMS TK-676077 AND TK 676078APPEARS TO BE CORRECT, AND IS SUSTAINED.