B-144608, MAY 11, 1961

B-144608, MAY 11, 1961

TO WILSON FREIGHT FORWARDING CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1960, FILE TK- 682038, WHEREIN YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE DATED MAY 11, 1960 (TK-682038), DISALLOWING YOUR CLAIM FOR $146.80, PER BILL NO. 6423-A, FOR ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR EXCLUSIVE USE OF VEHICLE SERVICE ON A MIXED SHIPMENT OF UNSERVICEABLE AUTOMOBILE PARTS WHICH MOVED FROM CAMP MCCOY, WISCONSIN, TO TOLEDO, OHIO, UNDER GOVERNMENT BILL OF LADING NO. WY-1361033, DATED JULY 31, 1957.

THE APPLICABLE RATE FOR THE SHIPMENT IN QUESTION IS PUBLISHED IN MIDDLEWEST MOTOR FREIGHT BUREAU, AGENT'S TARIFF NO. 26, MF-I.C.C. NO. 267, AND THE PROVISIONS RELATING TO EXCLUSIVE USE OF VEHICLE SERVICE ARE FOUND IN ITEM NO. 40-B, SUPP. 25, OF THAT TARIFF. IN PERTINENT PART, ITEM 40-B STATES AND REQUIRES THE FOLLOWING:

"1 - SERVICE

UPON REQUEST OF A SHIPPER, A TRUCK SHALL BE FURNISHED BY THE CARRIER FOR THE SHIPPER'S EXCLUSIVE USE.

"2 - CONDITIONS

(B) THE SHIPPING ORDER AND BILL OF LADING MUST BE ENDORSED AS FOLLOWS: "EXCLUSIVE USE OF VEHICLE REQUIRED" "

NEITHER GOVERNMENT BILL OF LADING NO. WY-1361033 NOR THE SHIPPING ORDER COPY OF THE BILL OF LADING FURNISHED WITH YOUR LETTER WAS ANNOTATED IN THE MANNER PRESCRIBED BY ITEM 40-B. BOTH DOCUMENTS BEAR REFERENCES TO EXCLUSIVE USE SERVICE IN THE FORM OF HANDWRITTEN OR HAND PRINTED NOTATIONS INDICATING "EXCLUSIVE USE OF TRAILER" IN THE BLOCKS PROVIDED FOR "WEIGHTS" AND "FOR USE OF DESTINATION CARRIER ONLY.' PLACED WHERE THEY ARE ON THE BILL OF LADING THE NOTATIONS PROBABLY WERE MADE BY REPRESENTATIVES OF THE DESTINATION CARRIER, SOME TIME AFTER PREPARATION AND ENDORSEMENT OF THE BILL OF LADING BY THE ISSUING OFFICER AND AFTER THE COMPLETION OF THE TRANSPORTATION SERVICE. WE FEEL THIS CONCLUSION IS WARRANTED SINCE THE SHIPPING DOCUMENTS WERE PREPARED BY THE SHIPPER ON A TYPEWRITER AND ALTHOUGH THE SHIPPER COULD HAVE MADE THE NOTATIONS, NEITHER WAS INITIALED BY SHIPPER, NOR ARE THEY IDENTICAL AS SHOULD BE THE CASE WHEN AN ORIGINAL DOCUMENT IS PREPARED WITH CARBON COPIES.

AS A MATTER OF FACT THE SHIPPING ORDER COPY OF THE BILL OF LADING, WHICH IS RETAINED BY THE CARRIER, ORIGINALLY SHOWED CHARGES OF $262.50 IN THE SECTION RESERVED FOR THE DESTINATION CARRIER'S USE, AND THAT AMOUNT, THROUGH WHICH LINES HAVE BEEN DRAWN, IS THE SAME AS FOUND ALLOWABLE BY OUR OFFICE FOR THE TRANSPORTATION. THERE IS NOTHING IN THE SHIPPING RECORD, AS MADE AT THE TIME OF TENDER OF THE UNSERVICEABLE AUTOMOBILE PARTS TO THE CARRIER AT POINT OF ORIGIN OR THEREAFTER, TO REASONABLY ESTABLISH THAT EXCLUSIVE USE WAS DESIRED OR REQUESTED BY THE SHIPPING OFFICER, AND THE SEALING OF THE TRAILER INVOLVED IN ITSELF DOES NOT ESTABLISH SUCH A REQUEST SINCE THE SEALING COULD HAVE BEEN OCCASIONED BY THE CAPACITY LOADING OF THE VEHICLE. FOR ALL THAT APPEARS IN THIS RECORD THE CHARACTERIZATION OF THE TRANSPORTATION AS AN EXCLUSIVE USE OF VEHICLE SERVICE WAS THE RESULT OF A DETERMINATION BY THE CARRIER INDEPENDENTLY OF ANY AUTHORITY OR CONCURRENCE BY THE SHIPPER OR OTHER ADMINISTRATIVE PERSONNEL RESPONSIBLE FOR MAKING THE NECESSARY ARRANGEMENTS FOR THE TRANSPORTATION.

ON THIS RECORD WE CONCLUDE THAT TRUCKLOAD SERVICE ONLY, AS DISTINGUISHED FROM EXCLUSIVE USE SERVICE, WAS ALL THAT WAS CONTEMPLATED AT THE TIME OF SHIPMENT, AND THAT TRUCKLOAD CHARGES, AS ALLOWED, ARE THE MAXIMUM TO WHICH THE INTERESTED CARRIERS ARE ENTITLED. THEREFORE, THE SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM FOR $146.80 ON BILL NO. 6423-A WAS PROPER AND MUST BE SUSTAINED.