B-145321, JUL. 17, 1961

B-145321, JUL. 17, 1961

TO JONES TRUCK LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1961, FILE 2, WITH ENCLOSURE, REQUESTING A REVIEW OF SUPPLEMENTAL BILL NO. 44-60 B.D. (FREIGHT BILL NO. 167070 THROUGH 167078) FOR ADDITIONAL FREIGHT CHARGES OF $199.30, WHICH WERE DISALLOWED IN OUR SETTLEMENT OF FEBRUARY 28, 1961.

THE RECORD SHOWS THAT MISCELLANEOUS FREIGHT, WEIGHING 16,969 POUNDS, WAS SHIPPED ON NOVEMBER 4, 1959, UNDER GOVERNMENT BILL OF LADING AF 097158, FROM BIRMINGHAM, ALABAMA, TO TINKER AIR FORCE BASE, MIDWEST CITY, OKLAHOMA. THE BILL OF LADING WAS ROUTED VIA "JACK COLE COMPANY C/O JONE (SIC) TRUCK LINE" AND BORE A NOTATION READING "SECTION 22 QUO 49.'

FOR THE SERVICES PERFORMED, JONES TRUCK LINES, INC., CLAIMED ORIGINALLY AND WAS PAID $396 ON VOUCHER NO. 314583 OF THE JANUARY 8, 1960, ACCOUNTS OF LIEUTENANT COLONEL GEORGE M. SECKINGER. THE CHARGES WERE COMPUTED ON THE BASIS OF A RATE OF 198 CENTS PER 100 POUNDS SUBJECT TO A MINIMUM WEIGHT OF 20,000 POUNDS, AS PROVIDED BY UNIFORM TENDER OF MOTOR CARRIER RATES OR CHARGES, TENDER NO. I.C.C. 49, WHICH WAS ISSUED JOINTLY BY JACK COLE COMPANY AND JONES TRUCK LINES, INC., ON OCTOBER 17, 1958. ON MAY 31, 1960, JONES TRUCK LINES, INC., SUBMITTED A CORRECTED BILL, NO. 44-60 B.D., FOR ADDITIONAL CHARGES OF $199.30, BASED ON TOTAL FREIGHT CHARGES OF $595.30. THE CHARGES WERE COMPUTED AT INDIVIDUAL RATES ON THE RESPECTIVE ITEMS FOR A WEIGHT OF 16,969 POUNDS, PLUS A DEFICIENCY WEIGHT OF 5,031 POUNDS, TO MAKE UP A MINIMUM WEIGHT OF 22,000 POUNDS, AT $4.04 PER 100 POUNDS.

YOU URGE, IN SUBSTANCE, THAT THE RATES CONTAINED IN THE SECTION 22 QUOTATION, TENDER NO. I.C.C. 49, WERE NOT IN EFFECT ON NOVEMBER 4, 1959, THE DATE THIS SHIPMENT MOVED, SINCE THE EXPIRATION DATE SHOWN IN THE ORIGINAL TENDER IS NOVEMBER 1, 1959. HOWEVER, THE FACTS OF RECORD DO NOT SUPPORT YOUR CONTENTION.

THE RECORD SHOWS THAT ON OCTOBER 1, 1959, ONE MONTH PRIOR TO THE CITED EXPIRATION DATE OF NOVEMBER 1, 1959, JONES TRUCK LINES, INC., ISSUED SUPPLEMENT NO. 1 TO GOVERNMENT TENDER NO. I.C.C. 49 TO BECOME EFFECTIVE NOVEMBER 8, 1959. ON ITS FACE, THE SUPPLEMENT SHOWS THAT "SUPPLEMENT NO. 1 CONTAINS ALL CHANGES; THAT ITEMS 3-B AND 3-C OF THE ORIGINAL TENDER ARE AMENDED BY MAKING THE RATES APPLY ONLY FROM TINKER AFB, OKLAHOMA, TO BIRMINGHAM, ALABAMA, RATHER THAN BETWEEN THESE TWO POINTS, (AS SHOWN IN THE ORIGINAL ISSUE); AND THAT "ALL OTHER PROVISIONS OF TENDER AS ORIGINALLY ISSUED REMAIN UNCHANGED.'

ALTHOUGH NO SPECIFIC MENTION IS MADE IN SUPPLEMENT NO. 1 OF ANY EXTENSION OF TENDER NO. I.C.C. 49, THE SUBMISSION OF THIS SUPPLEMENT BY JONES TRUCK LINES, INC., IN COMPLIANCE WITH PARAGRAPH 9 OF THE TENDER (A PROVISION FOR WRITTEN NOTICE BY EITHER PARTY OF NOT LESS THAN THIRTY DAYS FOR CANCELLATION OR MODIFICATION), WARRANTS THE CONCLUSION THAT THE ORIGINAL TERMS OF TENDER I.C.C. NO. 49 WERE EXTENDED THROUGH NOVEMBER 7, 1959, AND THE TENDER, AS AMENDED, REMAINED IN EFFECT THEREAFTER. ASSUREDLY, THE BASIC TENDER HAD TO REMAIN IN OPERATION AFTER NOVEMBER 1, 1959, AND THROUGH NOVEMBER 7, 1959, TO PERMIT SUPPLEMENT NO. 1 TO BECOME EFFECTIVE ON NOVEMBER 8, 1959. VIEWED IN ANY OTHER MANNER, THE TENDER WOULD HAVE CEASED TO EXIST ON NOVEMBER 1, 1959 (THE EXPIRATION DATE SHOWN IN THE ORIGINAL ISSUE); THE ISSUANCE OF SUPPLEMENT NO. 1 WOULD HAVE BEEN A VAIN AND USELESS ACT; AND TO CARRY OUT THE CARRIERS' APPARENT PURPOSE THE NEED WOULD HAVE ARISEN FOR THE CARRIERS TO PUBLISH AND FILE A COMPLETELY NEW TENDER.

ACCORDINGLY, ON THE BASIS OF THE RECORD HERE WE FIND THAT THE ORIGINAL TENDER NO. I.C.C. 49 REMAINED IN FULL FORCE AND EFFECT AS ORIGINALLY ISSUED THROUGH NOVEMBER 7, 1959, AND THAT THE APPLICABLE RATE FOR THIS SHIPMENT ON NOVEMBER 4, 1959, WAS 198 CENTS PER 100 POUNDS. THEREFORE, OUR SETTLEMENT ACTION OF FEBRUARY 28, 1961, IS SUSTAINED.