B-143807, MAY 3, 1961

B-143807, MAY 3, 1961

TO CAROLINA FREIGHT CARRIERS CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 8, 1960, YOUR CLAIM 058-8 AND 060-814, YOUR PRO. 859164, AND DECEMBER 2, 1960, YOUR CLAIM 059-528, YOUR PROS. 430897 AND 451107, REQUESTING REVIEW OF THE ACTION TAKEN IN DEDUCTING AN OVERCHARGE OF $172.20 IN THE AMOUNT BILLED AND PAID FOR THE TRANSPORTATION OF A MACHINE FROM WARNER ROBINS, GEORGIA, TO STEWART AIR FORCE BASE, NEW YORK, UNDER GOVERNMENT BILL OF LADING AF-8669115, DATED AUGUST 2, 1958.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $621, THE MINIMUM CHARGES AUTHORIZED IN THE APPLICABLE TARIFF FOR EXCLUSIVE USE OF VEHICLE SERVICE, COMPUTED AT THE CLASS 100 RATE OF $4.14 PER 100 POUNDS ON A MINIMUM WEIGHT OF 15,000 POUNDS. IN REVIEWING THE BILL OF LADING INVOLVED, HEADQUARTERS, SOUTHEASTERN TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, FOREST PARK, GEORGIA, ADMINISTRATIVELY CONSIDERED THE APPLICABLE FREIGHT CHARGES TO BE $123.31, COMPUTED AT THE LESS-THAN- TRUCKLOAD RATE OF $4.18 PER 100 POUNDS ON THE ACTUAL WEIGHT OF2,950 POUNDS, WHICH WOULD RESULT IN AN OVERCHARGE OF $497.69. IN OUR AUDIT, THE APPLICABLE CHARGES WERE FOUND TO BE $448.80, COMPUTED AT THE CLASS 45 TRUCKLOAD RATE OF $1.87 PER 100 POUNDS ON A MINIMUM WEIGHT OF 24,000 POUNDS--- OVER EIGHT TIMES THE ACTUAL WEIGHT OF THE SHIPMENT--- FOR THE REASON THAT THE BILL OF LADING BEARS THE NOTATION "TENDER AS A TRUCKLOAD SHIPMENT," RESULTING IN AN OVERCHARGE OF $172.20, WHICH YOU REFUSED TO VOLUNTARILY REFUND.

THEREAFTER, BY LETTER OF AUGUST 19, 1960, YOU REQUESTED REVIEW BY THE COMPTROLLER GENERAL OF THE UNITED STATES OF OUR AUDIT ACTION AND BY LETTER DATED SEPTEMBER 2, 1960, B-143807, YOU WERE ADVISED THAT SINCE FINAL SETTLEMENT ACTION HAD NOT BEEN TAKEN ON YOUR CLAIM AS CONTEMPLATED BY THE PROVISIONS OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, 1960 SUPPLEMENT, SUBCHAPTER D, PART 55, THE REQUEST FOR REVIEW WAS PREMATURE AND MATTER WAS BEING FORWARDED TO OUR TRANSPORTATION DIVISION AS A FURTHER PROTEST TO ITS AUDIT ACTION. THEREAFTER, AS AUTHORIZED BY 49 U.S.C. 66, THE AMOUNT OF THE OVERCHARGE WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU. YOUR CURRENT LETTERS PROTEST THE ACTION TAKEN IN DEDUCTING THE OVERCHARGE. NO CLAIM FOR REFUND OF THE AMOUNT YOU CONSIDER TO HAVE BEEN IMPROPERLY DEDUCTED WAS MADE, NOR A SETTLEMENT CERTIFICATE ISSUED FINALLY DISALLOWING SUCH CLAIM. ACCORDINGLY, AND AS YOU WERE PREVIOUSLY ADVISED, THE MATTER IS NOT PROPERLY REVIEWABLE BY THE COMPTROLLER GENERAL. HOWEVER, SINCE YOUR REPEATED PROTESTS TO THE DEDUCTION MAKE CLEAR YOUR CONTENTION THAT YOU FEEL YOU ARE ENTITLED TO THE MINIMUM CHARGES FOR EXCLUSIVE USE, WE WILL, IN THE INSTANT CASE, CONSIDER THE MERITS OF THE MATTER.

THE RATE APPLICABLE FOR THIS SHIPMENT IS PUBLISHED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE, AGENTS, TARIFF NO. 504, MF-I.C.C. NO. 614. THE TARIFF REQUIREMENT RELATIVE TO EXCLUSIVE USE OF VEHICLE SERVICE IN EFFECT AT THE TIME OF THIS SHIPMENT IS FOUND IN ITEM NO. 10020-C, SUPPLEMENT NO. 141, EFFECTIVE JULY 16, 1958, WHICH SPECIFICALLY PROVIDES THAT---

"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.'"

AN EXAMINATION OF BILL OF LADING AF-8669115 SHOWS THAT IT BEARS THE FOLLOWING NOTATION:

"HIGH SPEED TRANS. REQUIRED.'

" "TENDER AS A TRUCKLOAD SHIPMENT" "

"SEAL: 0778 APPLIED BY SHIPPER"

THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE VEHICLE UTILIZED WAS LOADED TO CAPACITY. THE APPLICABLE TARIFF LAYS DOWN THE RULE UNDER WHICH EXCLUSIVE USE WILL BE FURNISHED AND THE CHARGES THEREFOR BECOME DUE. REQUEST FOR EXPEDITED SERVICE DOES NOT MEET THAT RULE. THE BILL OF LADING DOES NOT BEAR A NOTATION TO THE EFFECT THAT EXCLUSIVE USE WAS REQUESTED AND THERE IS NO EVIDENCE TO ESTABLISH THAT THE BILL OF LADING WAS UNAVAILABLE FOR SUCH ENDORSEMENT AT THE TIME THE SHIPMENT WAS TENDERED. THUS THE CHARGE FOR EXCLUSIVE USE IS NOT PROPERLY ALLOWABLE. THE TRANSPORTATION SERVICE PERFORMED WAS THAT OF A COMMON CARRIER UNDER A PUBLISHED TARIFF. THE RULE--- IN EFFECT THAT EXCLUSIVE-USE CHARGES WILL BE ASSESSABLE ONLY WHERE THE EXCLUSIVE USE WAS REQUESTED BY NOTATION ON THE BILL OF LADING--- WAS A PART OF THE TARIFF. IT COULD NOT BE WAIVED. DAVIS V. HENDERSON, 266 U.S. 92, 69 L.ED. 182; BIENVILLE WAREHOUSE CORP., INC. V. ILLINOIS CENTRAL RAILROAD, 208 I.C.C. 583, 585; AND NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD COMPANY OF NEW JERSEY, 216 I.C.C. 105, 107. THERE IS NO PROVISION IN THE APPLICABLE TARIFF PERTAINING TO EXPEDITED SERVICE AND, ALTHOUGH SHIPPERS DO NOT GENERALLY HOLD THEMSELVES OUT TO MEET SCHEDULES, A SHIPPER MAY REQUEST AND BE FURNISHED EXPEDITED SERVICE WITHOUT RECEIVING EXCLUSIVE USE OF THE VEHICLE AND VICE VERSA. THEY ARE SEPARATE AND DISTINCT SERVICES. A SIMILAR SITUATION WAS CONSIDERED BY THE INTERSTATE COMMERCE COMMISSION IN TUMPSON AND COMPANY V. N. BRADDOCK MOTOR LINES, 8 FED. CARRIER CASES 479. IN THAT CASE THE DEFENDANT MOTOR CARRIER CONTENDED, AMONG OTHER THINGS, THAT ALTHOUGH EXCLUSIVE USE OF THE TRUCK WAS NOT EXPRESSLY REQUESTED, THE SHIPPER KNEW, OR SHOULD HAVE KNOWN, THAT THE ENTIRE VEHICLE WOULD BE USED, SINCE THE REQUESTED 24-HOUR DELIVERY WOULD NOT PERMIT ADDITIONAL PICK-UPS OR DELIVERIES AND THAT THEREFORE IT WAS ENTITLED TO MORE THAN THE LESS- THAN-TRUCKLOAD CHARGE. THE EXAMINER FOUND THE DEFENDANT'S CONTENTIONS WITHOUT MERIT AND THE COMMISSION ADOPTED THE EXAMINER'S FINDINGS AND REPORT. SEE ALSO GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, CLARK THREAD COMPANY, INC. V. PILOT FREIGHT CARRIERS, INC., 62 M.C.C. 185, 189 AND SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CARRIER CASES 710.

IT WAS HELD IN 39 COMP. GEN. 755, THAT IN THE ABSENCE OF A NOTATION REQUIRED BY A MOTOR CARRIER TARIFF ON A GOVERNMENT BILL OF LADING THAT EXCLUSIVE USE OF VEHICLE WAS ORDERED BY THE SHIPPER FOR A LESS-THAN TRUCKLOAD SHIPMENT TENDERED TO A MOTOR CARRIER, A NOTATION THAT A SEAL WAS APPLIED BY THE SHIPPER DOES NOT JUSTIFY ALLOWANCE OF PREMIUM CHARGES FOR EXCLUSIVE USE OF THE VEHICLE.

THE RECORD INDICATES THAT THE ISSUING OFFICER HERE CONTEMPLATED THAT THESHIPMENT WOULD MOVE AS A TRUCKLOAD AND THUS THERE IS NO PROPER BASIS FOR APPLYING A LESS-THAN-TRUCKLOAD RATE AS ADMINISTRATIVELY RECOMMENDED. HOWEVER, THE AUDIT ACTION TAKEN IN DEDUCTING THE OVERCHARGE OF $172.20--- THE AMOUNT BILLED AND PAID FOR EXCLUSIVE-USE CHARGES IN EXCESS OF THE TRUCKLOAD CHARGE--- APPEARS CORRECT AND IS SUSTAINED.