B-143646, JUN. 16, 1961

B-143646: Jun 16, 1961

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IS APPLICABLE TO TRUCKLOAD SHIPMENTS FROM THE MARINE BASE. ON WHICH YOU HAVE NOT YET RECEIVED NOTICE OF SETTLEMENT ACTION. THE SALIENT FACTS IN THE SITUATION PRESENTED ARE THAT ON APRIL 2. WILL CONSTITUTE AN AGREEMENT BETWEEN THE PARTIES HERETO AS TO THE TRANSPORTATION SERVICES HEREIN (SIC) DESCRIBED. THIS TENDER IS MADE WITH THE UNDERSTANDING THAT ITS ACCEPTANCE WILL NOT CONSTITUTE A GUARANTEE BY THE GOVERNMENT OR ANY PARTICULAR VOLUME OF THE TRAFFIC HEREIN DESCRIBED.'. THE TENDER WAS SIGNED FOR THE K AND W TRUCKING COMPANY BY JOHN P. INCLUDED THEREIN WAS A RATE OF 37 CENTS PER 100 POUNDS. EACH BILL OF LADING WAS ANNOTATED "TL SHIPMENT K AND W TENDER NUMBER 14 HIGHWAY PERMIT NUMBER 859-T-3217 M904106.'.

B-143646, JUN. 16, 1961

TO THE K AND W TRUCKING COMPANY:

BY LETTERS OF JULY 27, 1960, AUGUST 8, 1960, AND MARCH 24, 1961, YOU REQUESTED REVIEW OF THE SETTLEMENTS IN CLAIMS TK 698531, DATED JULY 19, 1960, AND TK 698534, DATED AUGUST 3, 1960, WHICH DISALLOWED YOUR CLAIMS FOR $819.26 AND $813.76. THE REVIEW SOUGHT ENTAILS A DETERMINATION REVIEW OF THE SETTLEMENTS IN CLAIMS TK 698531, DATED JULY 19, 1960, AND TK 698534, DATED AUGUST 3, 1960, WHICH DISALLOWED YOUR CLAIMS FOR $819.26 AND $813.76. THE REVIEW SOUGHT ENTAILS A DETERMINATION WHETHER A RATE TO "NEBO AND/OR BARSTOW ANNEX (MARINE BASE)," PROVIDED IN K AND W TRUCKING COMPANY TENDER I.C.C. NO. 14, M.T.M.A. NO. 12, IS APPLICABLE TO TRUCKLOAD SHIPMENTS FROM THE MARINE BASE, TWENTY-NINE PALMS, CALIFORNIA, ON BILLS OF LADING SHOWING THE DESTINATION AS WEST YERMO, CALIFORNIA, AND CONSIGNED TO THE BARSTOW MARINE CORPS SUPPLY CENTER, BARSTOW, CALIFORNIA, DURING MAY AND SEPTEMBER 1959. YOU ALSO ATTACHED TO YOUR LETTER OF JULY 27 A LIST OF SUPPLEMENTAL BILLS RAISING THE SAME QUESTION, ON WHICH YOU HAVE NOT YET RECEIVED NOTICE OF SETTLEMENT ACTION. SETTLEMENT OF THESE BILLS HAS BEEN DEFERRED PENDING OUR DECISION ON THE APPLICABILITY OF THE RATE IN TENDER NO. 14.

THE SALIENT FACTS IN THE SITUATION PRESENTED ARE THAT ON APRIL 2, 1959, THE K AND W TRUCKING COMPANY OFFERED TO THE MILITARY TRAFFIC MANAGEMENT AGENCY FOR THE ACCOUNT OF THE MILITARY DEPARTMENTS OF THE GOVERNMENT TENDER I.C.C. NO. 14, M.T.M.A. NO. 12, EFFECTIVE APRIL 6, 1959, WHICH PROVIDED TRUCKLOAD RATES AND TRUCKLOAD MINIMUM WEIGHTS BETWEEN NAMED CALIFORNIA POINTS ON GENERAL COMMODITIES REQUIRING USE OF LOW BED EQUIPMENT AND/OR HIGHWAY PERMITS. CLAUSE 10, ENTITLED "ACCEPTANCE OF TENDER," PROVIDED:

"THIS TENDER WHEN ACCEPTED BY THE GOVERNMENT BY MAKING ANY SHIPMENT OR SETTLEMENT UNDER THE TERMS HEREOF OR OTHERWISE, WILL CONSTITUTE AN AGREEMENT BETWEEN THE PARTIES HERETO AS TO THE TRANSPORTATION SERVICES HEREIN (SIC) DESCRIBED. THIS TENDER IS MADE WITH THE UNDERSTANDING THAT ITS ACCEPTANCE WILL NOT CONSTITUTE A GUARANTEE BY THE GOVERNMENT OR ANY PARTICULAR VOLUME OF THE TRAFFIC HEREIN DESCRIBED.'

THE TENDER WAS SIGNED FOR THE K AND W TRUCKING COMPANY BY JOHN P. DUFF, VICE PRESIDENT AND GENERAL MANAGER. INCLUDED THEREIN WAS A RATE OF 37 CENTS PER 100 POUNDS, TRUCKLOAD MINIMUM WEIGHT 36,000 POUNDS, APPLICABLE TO THE INBOUND MOVEMENT BETWEEN TWENTY-NINE PALMS AND "NEBO AND/OR BARSTOW ANNEX (MARINE BASE).' THE TENDER ALSO PROVIDED A CHARGE OF $6.25 PER CAR PER HOUR FOR PILOT CAR SERVICE WHEN REQUIRED AND FURNISHED.

THE TRANSPORTATION OFFICER AT THE MARINE BASE, TWENTY-NINE PALMS, ON APRIL 29, 1959, ISSUED SEVEN BILLS OF LADING, NUMBERS M-732116 THROUGH M- 732122, CALLING FOR SEVEN 35-FOOT LOW BED VEHICLES TO TRANSPORT SEVEN SELF -PROPELLED GUNS FROM THAT BASE TO WEST YERMO, THE CONSIGNEE AT DESTINATION BEING SHOWN AS THE COMMANDING GENERAL (FREIGHT TRANSPORTATION), MARINE CORPS SUPPLY CENTER, BARSTOW, CALIFORNIA. JOHN P. DUFF, APPARENTLY THE SAME INDIVIDUAL WHO SIGNED TENDER NO. 14 FOR THE CARRIER, ALSO SIGNED FOUR OF THE BILLS OF LADING, NUMBERS M 732116 THROUGH M-732119, AS THE CARRIER'S AGENT RECEIVING THE GOODS. EACH BILL OF LADING WAS ANNOTATED "TL SHIPMENT K AND W TENDER NUMBER 14 HIGHWAY PERMIT NUMBER 859-T-3217 M904106.' K AND W TRUCKING COMPANY, AFTER DELIVERY OF THE GUNS, SUBMITTED ITS FREIGHT BILLS NOS. A-4292 THROUGH A-4298, EACH CLAIMING CHARGES OF $184.26, COMPUTED AT A RATE OF 37 CENTS PER 100 POUNDS AND A WEIGHT OF 49,800 POUNDS. EACH OF THESE FREIGHT BILLS WAS ENDORSED "K AND W TENDER NUMBER 14.' FREIGHT CHARGES TOTALLING $1,289.82 ON THESE SEVEN SHIPMENTS WERE PAID TO THE K AND W TRUCKING COMPANY ON VOUCHER 511358 IN THE JUNE 1959 ACCOUNTS OF DISBURSING OFFICER B. H. SNYDER.

ON SEPTEMBER 23, 1959, THE TRANSPORTATION OFFICER AT TWENTY-NINE PALMS ISSUED EIGHT BILLS OF LADING, NOS. M-732383 THROUGH M-732390, EACH CALLING FOR A 35-FOOT LOW BED VEHICLE TO TRANSPORT AN ARMY TRACTOR TANK WITH GUNS TO WEST YERMO, CALIFORNIA, CONSIGNED TO THE COMMANDING GENERAL (FREIGHT TRANSPORTATION), MARINE CORPS SUPPLY CENTER, BARSTOW, CALIFORNIA. EACH BILL OF LADING WAS ENDORSED TO SHOW "K AND W TENDER NUMBER 14 HIGHWAY PERMIT NUMBER 757-T-25070 M90882.' THE BILLS OF LADING WERE ALSO MARKED TO SHOW THAT THE HIGHWAY PERMIT REQUIRED PILOT CAR SERVICE AND THAT THREE PILOT CARS WERE FURNISHED FOR THREE 16-HOUR PERIODS TO CONVOY THE VEHICLES TRANSPORTING THESE SHIPMENTS. K AND W TRUCKING COMPANY FREIGHT BILLS NOS. A-4673 THROUGH A-4680, AFTER DELIVERY OF THE TANKS AT WEST YERMO, WERE SUBMITTED TO COLLECT CHARGES AT THE TENDER NO. 14 RATE OF 37 CENTS PER 100 POUNDS AND $6.25 PER HOUR PILOT CAR SERVICE CHARGE. TOTAL CHARGES OF $1,572.80 WERE PAID ON VOUCHER 503765 IN THE NOVEMBER 1959 ACCOUNTS OF DISBURSING OFFICER B. H. SNYDER.

THEREAFTER, ON APRIL 13, 1960, K AND W TRUCKING COMPANY SUBMITTED ITS SUPPLEMENTAL BILLS A-4292-A ETC. AND A-4674-1 ETC., TO COLLECT ADDITIONAL CHARGES OF $819.26 AND $813.76 ON THE GROUND THAT THE RATE PUBLISHED IN TENDER NO. 14 WAS INAPPLICABLE. THE ADDITIONAL CHARGES WERE COMPUTED AT A RATE OF 59 CENTS PER 100 POUNDS, PLUS PERMIT CHARGES OF $7.12 PER TRUCK ON BILL A-4674-A ETC., PROVIDED IN WESTERN MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 1, I.C.C. NO. 1. THESE CLAIMS WERE DISALLOWED IN THE SETTLEMENTS CITED ABOVE. THE REMAINING SUPPLEMENTAL BILLS LISTED IN THE ATTACHMENT TO YOUR LETTER OF JULY 27, 1960, ARE ALSO BASED UPON THE INAPPLICABILITY OF THE RATE IN TENDER NO. 14, TO THE SHIPMENTS COVERED BY THE BILLS OF LADING INCLUDED IN THOSE BILLS.

YOUR REQUEST FOR REVIEW IS BASED, AS YOU STATE, UPON THE "TECHNICALITY" THAT WEST YERMO IS NOT SPECIFICALLY NAMED IN TENDER NO. 14. YOU STATE FURTHER THAT THE MILITARY TRAFFIC MANAGEMENT AGENCY OFFICE AT OAKLAND ON FEBRUARY 2, 1960, INFORMED YOU THAT YOU COULD NO LONGER PARTICIPATE IN TRAFFIC DESTINED TO WEST YERMO BECAUSE OF THE OMISSION. YOU HAVE NOT FURNISHED WITH YOUR REQUEST FOR REVIEW A COPY OF THE LETTER OR OTHER NOTICE OF THE ADVICE FROM THE MILITARY TRAFFIC MANAGEMENT AGENCY THAT YOU COULD NO LONGER PARTICIPATE IN TRAFFIC DESTINED TO WEST YERMO.

WHILE WEST YERMO IS NOT SPECIFICALLY NAMED IN TENDER NO. 14, THERE CAN BE NO DOUBT THAT THE TERM "NEBO AND/OR BARSTOW ANNEX (MARINE BASE)" INCLUDES THE GOVERNMENT FACILITY OPERATED BY THE MARINE CORPS AT WEST YERMO AS PART OF THE BARSTOW MARINE CORPS SUPPLY CENTER. THE MARINE CORPS INFORMED US THAT ITS BARSTOW SUPPLY CENTER CONSISTS OF FACILITIES AT TWO LOCATIONS APPROXIMATELY 10 MILES APART. ONE, AT NEBO, ON U.S. HIGHWAY 66, 5 MILES EAST OF BARSTOW AND 3 MILES WEST OF DAGGETT, CONTAINS THE ADMINISTRATIVE OFFICES, THROUGH WHICH TRANSPORTATION DOCUMENTS ARE PROCESSED, AS WELL AS CERTAIN STORAGE AREAS; THE OTHER, AT WEST YERMO, ON U.S. HIGHWAY 91, 13 MILES EAST OF BARSTOW AND 3 MILES WEST OF YERMO, IS AN ANNEX WHICH PROVIDES FOR THE PHYSICAL HANDLING AND STORAGE OF CERTAIN CATEGORIES OF MATERIAL. THE FACILITY AT WEST YERMO IS, ACCORDING TO THE MARINE CORPS, THE ONLY "ANNEX" TO THE BARSTOW SUPPLY CENTER. BILLING INSTRUCTIONS ISSUED BY THE CORPS FOR THE GUIDANCE OF ITS TRANSPORTATION OFFICERS REQUIRE THAT BILLS OF LADING COVERING SHIPMENTS FOR THE SUPPLY CENTER SHOW THE COMMANDING GENERAL, MARINE CORPS SUPPLY CENTER, BARSTOW, AS THE CONSIGNEE AND THE DESTINATION AS WEST YERMO FOR TRUCKLOADS OF CERTAIN SPECIFIED COMMODITIES. ON ALL OTHER BILLS OF LADING COVERING MOTOR CARRIER SHIPMENTS, NEBO IS REQUIRED TO BE SHOWN AS THE DESTINATION.

FROM THE ABOVE, IT IS CLEAR THAT THE BARSTOW ANNEX AND WEST YERMO ARE SYNONYMOUS--- THAT IS, BOTH NAMES DESIGNATE THE SAME PHYSICAL PLANT AND GEOGRAPHICAL LOCALE. IN MAKING THE OFFER OF A REDUCED RATE BETWEEN TWENTY -NINE PALMS AND "NEBO AND/OR BARSTOW ANNEX (MARINE BASE)," HELD OUT IN TENDER NO. 14, THE K AND W TRUCKING COMPANY PRESUMABLY WAS MOTIVATED BY THIS KNOWLEDGE AND UNDERSTANDING, AS WAS THE ISSUING OFFICER WHO ACCEPTED THE OFFER BY MAKING SHIPMENTS THEREUNDER. THIS MUTUAL INTENTION OF THE PARTIES WAS FURTHER DEMONSTRATED BY THE ACTIONS OF THE ISSUING OFFICER IN REFERRING ON THE BILLS OF LADING TO "K AND W TENDER NUMBER 14" AND OF THE CARRIER IN BILLING AND COLLECTING CHARGES AT THE TENDER NO. 14 RATE. ACCORDINGLY, IN VIEW OF THE CONDITIONS AT THE BARSTOW SUPPLY CENTER, UNDER WHICH THE OFFER OF THE QUESTIONED RATE WAS SUBMITTED, AND IN THE LIGHT OF THE PRINCIPAL APPARENT PURPOSE THE OFFER WAS INTENDED TO SERVE (THOMPSON V. BALTIMORE AND OHIO R.CO. 59 F.SUPP. 21, 35; MODIFIED 155 F.2D 767; CERTIORARI DENIED 329 U.S. 762), WE CONCLUDE THAT THE K AND W TRUCKING COMPANY INTENDED TO AND DID ENCOMPASS THE BARSTOW SUPPLY CENTER FACILITY AT WEST YERMO IN THE DESIGNATION "BARSTOW ANNEX (MARINE BASE)" IN TENDER NO. 14.

IN VIEW OF THE ABOVE, THE SETTLEMENTS IN CLAIMS TK 698531 AND TK 698534 WERE CORRECT AND THEY ARE SUSTAINED. OUR TRANSPORTATION DIVISION IS BEING INSTRUCTED TO SETTLE THE CLAIMS ON THE SUPPLEMENTAL BILLS LISTED IN THE ATTACHMENT TO YOUR LETTER OF JULY 27, 1960, ON THE BASIS OF THIS INTERPRETATION OF THE TENDER. NOTICE OF THE SETTLEMENTS WILL REACH YOU IN DUE COURSE.