B-144409, MAR. 22, 1961

B-144409: Mar 22, 1961

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INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1. FOR THE TRANSPORTATION SERVICES PERFORMED YOUR COMPANY ORIGINALLY CLAIMED AND WAS PAID $311 ON EACH SHIPMENT. COLLECTION WAS EFFECTED BY DEDUCTION OF A LIKE AMOUNT FROM MONIES OTHERWISE DUE TO YOUR COMPANY. YOU ASSERT THAT YOUR COMPANY IS NOT PERMITTED TO CORRECT. THEREFORE IT SHOULD NOT BE HELD RESPONSIBLE IF THE BILL OF LADING IS IMPROPERLY PREPARED. IT IS WELL ESTABLISHED. THE CARRIER STILL HAS THE OBLIGATION OF REFRAINING FROM EXECUTING THE DOCUMENT IF THERE ARE CONFLICTING PROVISIONS OF THE PROVISIONS OF THE BILL OF LADING CANNOT BE ACCOMPLISHED. ALTHOUGH THE GOVERNMENT BILL OF LADING WAS DESIGNED TO MEET THE ACCOUNTING NEEDS OF THE GOVERNMENT.

B-144409, MAR. 22, 1961

TO LEE WAY MOTOR FREIGHT, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1960, REQUESTING REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM G-1038 FOR $120 IN ADDITIONAL CHARGES ALLEGED TO BE DUE ON YOUR BILL 7-6-3M FOR THE EXCLUSIVE USE OF VEHICLES IN TRANSPORTING TWO SHIPMENTS FROM COFFEYVILLE, KANSAS, TO BENBROOK, TEXAS, UNDER BILLS OF LADING AF 7069149 AND AF-7069150, DATED MAY 27 AND 29, 1957, RESPECTIVELY.

FOR THE TRANSPORTATION SERVICES PERFORMED YOUR COMPANY ORIGINALLY CLAIMED AND WAS PAID $311 ON EACH SHIPMENT, THE MINIMUM CHARGES PROVIDED IN UNIFORM TENDER 402 FOR EXCLUSIVE USE OF VEHICLE SERVICE. IN THE AUDIT HERE, HOWEVER, WE DETERMINED THAT THE CHARGES SHOULD BE, IN EACH INSTANCE, $251, COMPUTED AT THE FIRST CLASS TRUCKLOAD RATE OF $2.51 PER 100 POUNDS, ON A MINIMUM WEIGHT OF 10,000, NAMED IN MIDDLE WEST MOTOR FREIGHT BUREAU TARIFF 35-A, MF-1.C.C. 240. UPON THE FAILURE OF YOUR COMPANY TO REFUND THE $120, COLLECTION WAS EFFECTED BY DEDUCTION OF A LIKE AMOUNT FROM MONIES OTHERWISE DUE TO YOUR COMPANY.

IN REQUESTING REVIEW OF THE SETTLEMENT ACTION, YOU ASSERT THAT YOUR COMPANY IS NOT PERMITTED TO CORRECT, AMEND OR OTHERWISE ALTER THE GOVERNMENT BILL OF LADING, AND THEREFORE IT SHOULD NOT BE HELD RESPONSIBLE IF THE BILL OF LADING IS IMPROPERLY PREPARED. IT IS WELL ESTABLISHED, HOWEVER, THAT MANY LARGE BUSINESS CONCERNS, AS WELL AS THE GOVERNMENT, MAKE IT A PRACTICE TO PREPARE THE BILLS OF LADING COVERING THEIR SHIPMENTS, AND THAT SUCH PRACTICE DOES NOT RELIEVE THE CARRIER OF THE DUTY IMPOSED 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 THE APPROPRIATE BILLS OF LADING. EVEN THOUGH THE SHIPPER PREPARES THE BILL OF LADING, THE CARRIER STILL HAS THE OBLIGATION OF REFRAINING FROM EXECUTING THE DOCUMENT IF THERE ARE CONFLICTING PROVISIONS OF THE PROVISIONS OF THE BILL OF LADING CANNOT BE ACCOMPLISHED. SEE EXPOSITION COTTON MILLS V. SOUTHERN RY.CO., 234 I.C.C. 441, 44; AND SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY R.CO., 274 I.C.C. 245, 247. ALTHOUGH THE GOVERNMENT BILL OF LADING WAS DESIGNED TO MEET THE ACCOUNTING NEEDS OF THE GOVERNMENT, THERE IS NOTHING IN THE PROVISIONS THEREOF WHICH PREVENTS A CARRIER FROM INSISTING UPON THE INSERTION OF THE NECESSARY NOTATIONS TO REFLECT WHAT SERVICES WERE REQUESTED AND ACTUALLY FURNISHED.

IN REGARDS TO YOUR CONTENTION THAT OUR SETTLEMENT ACTION WAS IMPROPER AND THAT YOUR COMPANY IS ENTITLED TO PAYMENT BASED ON EXCLUSIVE USE, ATTENTION IS INVITED TO THE CASE OF CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, WHEREIN THE INTERSTATE COMMERCE COMMISSION IN THE CONSIDERATION OF A COMPLAINT BROUGHT ON A SHIPMENT INVOLVING SIMILAR CIRCUMSTANCES, FOUND THAT THE TRUCKLOAD RATING AND CHARGES WERE PROPER FOR APPLICATION ON A VEHICLE CONTAINING A CAPACITY LOAD. THE COMMISSION IN DENYING THE PREMIUM CHARGES FOR EXCLUSIVE-USE SERVICES, STATED THAT "ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THEN- TRUCKLOAD SHIPMENTS," AND CONCLUDED THAT THE ASSAILED CHARGES WERE INAPPLICABLE. SINCE WE ARE ADVISED THAT THE TRAILERS USED IN TRANSPORTING THE SHIPMENTS INVOLVED IN YOUR CLAIM ALSO WERE LOADED TO CAPACITY, NO REASON IS APPARENT WHY THE PRINCIPLE ENUNCIATED IN THE CURTIS LIGHTING CASE SHOULD ..END :