B-142680, JUL. 26, 1960

B-142680, JUL. 26, 1960

TO THE RED ARROW FREIGHT LINES:

FURTHER REFERENCE IS MADE TO YOUR TWO LETTERS OF APRIL 21, 1960, REQUESTING REVIEW OF OUR SETTLEMENT ACTION IN CLAIMS NOS. TK-681851 AND TK -681852.

WE HAVE RE-EXAMINED THE RECORD IN CLAIM TK-681851 AND WE HAVE CONCLUDED THAT EXCLUSIVE USE OF VEHICLE FOR THIS SHIPMENT WAS REQUESTED AND FURNISHED, SINCE THE BILL OF LADING CONTAINS A NOTATION TO THE EFFECT THAT SUCH SERVICE WAS REQUESTED. WE ARE INSTRUCTING OUR TRANSPORTATION DIVISION TO RECOMPUTE THE CHARGES ACCORDINGLY, AND A REVISED SETTLEMENT CERTIFICATE SHOULD REACH YOU IN DUE COURSE.

YOUR SUPPLEMENTAL BILL NO. 14835-A, FOR $403, WAS DISALLOWED BY OUR SETTLEMENT CERTIFICATE (IN CLAIM NO. TK-681852), DATED APRIL 12, 1960. THIS BILL WAS PREDICATED ON THE BASIS OF CHARGES FOR EXCLUSIVE USE OF VEHICLE NAMED IN ITEM 10020 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 505-A, IN CONNECTION WITH A SHIPMENT MADE UNDER BILL OF LADING NO. N-31107507, DATED SEPTEMBER 11, 1956 (COPY ENCLOSED), FOR THE TRANSPORTATION OF PRACTICE BOMBS WEIGHING 20,919 POUNDS, FROM WAYCROSS, GEORGIA, TO PORT O-CONNER, TEXAS.

FOR THIS SERVICE YOU CLAIMED AND WERE PAID $790.20 AS THE MINIMUM CHARGE SET FORTH IN THE APPLICABLE TARIFF ITEM FOR EXCLUSIVE USE OF VEHICLE, COMPUTED AT THE CLASS 100 RATE OF $4.39 PER 100 POUNDS, ON A MINIMUM WEIGHT OF 18,000 POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER HERE WE DETERMINED THE APPLICABLE CHARGES TO BE $387.20 COMPUTED ON THE CLASS 40 RATE OF $1.76 PER 100 POUNDS AT A MINIMUM WEIGHT OF 22,000 POUNDS. THE AMOUNT OF THE OVERCHARGE, $403, WAS SET OFF PURSUANT TO 49 U.S.C. 66 FROM AMOUNTS OTHERWISE DUE YOUR COMPANY.

IN YOUR REQUEST FOR REVIEW, YOU ALLEGE THAT THE AGENT OF THE GOVERNMENT CONTRACTED FOR EXCLUSIVE USE OF VEHICLE AND THAT SUCH SERVICE WAS RENDERED. TO SUPPORT THIS ALLEGATION YOU HAVE FURNISHED A COPY OF RED ARROW FREIGHT LINES, INC. FREIGHT RECEIPT, DATED OCTOBER 17, 1956, WHICH BEARS THE NOTATION,"EXCLUSIVE USE OF TRAILER ORDERED BY SHIPPER.'

ITEM 10020 OF THE CITED TARIFF REQUIRES THE BILL OF LADING TO BE ANNOTATED TO THE EFFECT THAT EXCLUSIVE USE OF VEHICLE WAS REQUESTED BY THE SHIPPER. THE INVOLVED BILL OF LADING IS NOT ANNOTATED IN ANY MANNER TO SHOW THAT EXCLUSIVE USE OF VEHICLE WAS REQUESTED. IN ORDER FOR THE ACCOUNTING OFFICERS TO KNOW THAT EXCLUSIVE USE WAS REQUESTED, AND AS A CONDITION PRECEDENT TO THE APPLICATION OF THE EXCLUSIVE USE CHARGE, AN ANNOTATION AT LEAST SUBSTANTIALLY SIMILAR TO THAT REQUIRED BY THE TARIFF MUST APPEAR ON THE BILL OF LADING. THE INTERSTATE COMMERCE COMMISSION HELD IN GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, THAT THE OMISSION OF SUCH AN ENDORSEMENT ON THE BILL OF LADING IS A DEFECT WHICH IS FATAL TO THE APPLICATION OF CHARGES BASED ON EXCLUSIVE USE OF VEHICLE.

IN YOUR LETTER YOU STATE IT MUST BE PRESUMED THAT THE CONSIGNEE'S SIGNATURE ON THE BILL OF LADING CONFIRMING RECEIPT OF THE SHIPMENT INDICATES THAT THE SERVICE CALLED FOR BY THE CONTRACT OF CARRIAGE WAS PERFORMED. WHILE THIS IS NOT RELEVANT IN THE PRESENT SITUATION SINCE THE BILL OF LADING DOES NOT SHOW THAT EXCLUSIVE USE OF VEHICLE WAS CONTRACTED FOR BY THE GOVERNMENT, IT SHOULD BE NOTED THAT THE CERTIFICATION TO WHICH YOU REFER MERELY RECITES WHAT PROPERTY WAS RECEIVED AT DESTINATION, THE CONDITION OF SUCH PROPERTY, AND WHETHER DELIVERY WAS MADE BY THE GOVERNMENT OR ITS AGENT. THIS CERTIFICATION DOES NOT INDICATE WHAT SERVICES WERE OR WERE NOT ACCORDED THE SHIPMENT.

ACCORDINGLY, SINCE THERE IS NO NOTATION ON THE BILL OF LADING, AS REQUIRED BY YOUR TARIFF, THAT EXCLUSIVE USE OF VEHICLE WAS REQUESTED OR FURNISHED IN CONNECTION WITH THE SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING N-31107507, DATED SEPTEMBER 11, 1956, OUR SETTLEMENT IN CLAIM TK- 681862, OF APRIL 12, 1960, DISALLOWING YOUR SUPPLEMENTAL BILL IS SUSTAINED.