B-145811, AUG. 22, 1961

B-145811: Aug 22, 1961

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TO SUPER SERVICE MOTOR FREIGHT CO.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4. YOU CLAIMED AND WERE PAID CHARGE BASED ON TENDER NO. 64. BILL OF LADING WY-3457522 IS MARKED WITH THE NOTATION: "THIS B/L ISSUED TO COVER THE 1ST PART OF A COMPLETE SHIPMENT COMPRISING APPROX 123. IS NOTED THAT THE PROPERTY LISTED ON THE BILLS OF LADING WAS RECEIPTED FOR BY THE INITIAL CARRIER. IT WAS DETERMINED THAT THE APPLICABLE CHARGES WERE FOR COMPUTATION ON THE BASIS OF THE RATING AND RATE OF $3.31 PER 100 POUNDS ON THE ACTUAL WEIGHT (WITHOUT DUNNAGE AS AUTHORIZED BY RULE 10 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11) IN EACH VEHICLE. YOU REMITTED $171.59 IN CONNECTION WITH BILL OF LADING WY -3457526 BUT UPON FAILURE TO REFUND OVERCHARGES IN CONNECTION WITH THE OTHER FOUR BILLS OF LADING A COLLECTION OF $691.04 WAS EFFECTED BY DEDUCTION UNDER THE PROVISIONS OF 49 U.S.C. 66.

B-145811, AUG. 22, 1961

TO SUPER SERVICE MOTOR FREIGHT CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1961, WITH ENCLOSURES, FILE OC 9901 AND OC G-6, IN WHICH YOU REQUEST REVIEW OF THE DISALLOWANCES OF YOUR SUPPLEMENTAL BILLS, NUMBERED USA-1524-A AND USA 1538-A, TOTALING $862.63, (OUR FILES TK-699796 AND TK-700335) COVERING ADDITIONAL TRANSPORTATION CHARGES ALLEGEDLY DUE FOR THE MOVEMENT OF "SPECIAL FIREWORKS--- GRENADES, HAND" UNDER GOVERNMENT BILLS OF LADING WY-3457522, WY-3457523, WY-3457524, WY-3457525 AND WY-3457526 FROM PINE BLUFF ARSENAL, ARKANSAS, TO ARMY CHEMICAL CENTER, EDGEWOOD, MARYLAND.

FOR THE SERVICES PERFORMED, YOU CLAIMED AND WERE PAID CHARGE BASED ON TENDER NO. 64, A SECTION 22 QUOTATION, EFFECTIVE SEPTEMBER 14, 1953. THIS QUOTATION OFFERED A RATE OF 65 PERCENT OF THE FIRST-CLASS EXCEPTION RATE, AUTHORIZED IN EASTERN CENTRAL MOTOR CARRIER'S ASSOCIATION AGENT, MOTOR FREIGHT TARIFF NO. 20-C, MF-I.C.C. NO. A-88, PLUS ANY OTHER ADDITIONAL CHARGES IN APPLICABLE TARIFFS, ON A VOLUME MINIMUM WEIGHT OF 30,000 POUNDS SUBJECT TO A TRUCKLOAD MINIMUM WEIGHT OF 20,000 POUNDS PER VEHICLE USED. THE RATE HERE AMOUNTED TO $3.31 PER 100 POUNDS. BILL OF LADING WY-3457522 IS MARKED WITH THE NOTATION: "THIS B/L ISSUED TO COVER THE 1ST PART OF A COMPLETE SHIPMENT COMPRISING APPROX 123,516 POUNDS.' THE OTHER FOUR BILLS OF LADING BEAR THE SUPPLEMENTAL NOTATION: "THE FIRST PART THEREOF COVERED BY GBL WY-3457522" WITH MINOR MODIFICATIONS DENOTING THAT THE BILL OF LADING COVERED THE 2ND, 3RD, 4TH AND 5TH PART OF A COMPLETE SHIPMENT. IS NOTED THAT THE PROPERTY LISTED ON THE BILLS OF LADING WAS RECEIPTED FOR BY THE INITIAL CARRIER, STUTTGART TRUCK LINES, ON DECEMBER 1, 2, 3, 4 AND 8, 1953.

IN OUR AUDIT OF THE PAYMENT VOUCHERS, IT WAS DETERMINED THAT THE APPLICABLE CHARGES WERE FOR COMPUTATION ON THE BASIS OF THE RATING AND RATE OF $3.31 PER 100 POUNDS ON THE ACTUAL WEIGHT (WITHOUT DUNNAGE AS AUTHORIZED BY RULE 10 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11) IN EACH VEHICLE, SINCE THE FIVE CROSS-REFERENCED GOVERNMENT BILLS OF LADING EVIDENCED PARTS OF A VOLUME SHIPMENT, WEIGHING APPROXIMATELY 123,516 POUNDS, WITHIN THE MEANING OF SECTION 3 (A) OF RULE 13 OF THE ABOVE CLASSIFICATION NO. 11. IN RESPONSE TO OUR REQUESTS FOR A REFUND OF THE OVERCHARGES, YOU REMITTED $171.59 IN CONNECTION WITH BILL OF LADING WY -3457526 BUT UPON FAILURE TO REFUND OVERCHARGES IN CONNECTION WITH THE OTHER FOUR BILLS OF LADING A COLLECTION OF $691.04 WAS EFFECTED BY DEDUCTION UNDER THE PROVISIONS OF 49 U.S.C. 66.

WE CONTACTED THE SHIPPER, HEADQUARTERS, PINE BLUFF ARSENAL, ARKANSAS, TO CLARIFY THE FACTS PERTAINING TO THE TRANSPORTATION INVOLVED, SINCE CAPTAIN F. SPURRIER'S LETTER OF OCTOBER 23, 1956, ADDRESSED TO YOUR FIRM, CONTAINED THE STATEMENT,"INFORMATION IS FURNISHED THAT EACH PARTIAL SHIPMENT WAS TENDERED TO THE INITIAL CARRIER ON THE DATES AS LISTED IN YOUR LETTER.' WE WERE THEN ADVISED THAT A RECHECK OF THE RECORDS WAS MADE AND THAT "THE ENTIRE VOLUME SHIPMENT WAS TENDERED AND MADE AVAILABLE TO THE CARRIER AT ONE TIME.' ON DISPUTED QUESTIONS OF FACT BETWEEN THE CARRIER AND THE ADMINISTRATIVE OFFICE OF THE GOVERNMENT, THE RULE OF THIS OFFICE IS TO ACCEPT THE REPORTS OF THE ADMINISTRATIVE OFFICE, AS CORRECT, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS THEREOF. 3 COMP. GEN. 51; 15 ID. 253; 16 ID. 410. SUCH EVIDENCE HAS NOT BEEN FURNISHED.

YOU URGE AND WE AGREE THAT THE RULES CONTAINED IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION ARE FOR APPLICATION HERE. YOU CITE AND QUOTE SECTION 1 OF RULE 13 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11 WHICH DEFINES A SHIPMENT AS "A LOT OF FREIGHT RECEIVED FROM ONE SHIPPER, AT ONE POINT AT ONE TIME FOR ONE CONSIGNEE AT ONE DESTINATION AND COVERED BY ONE BILL OF LADING.' IT IS WELL SETTLED THAT THE MERE ISSUANCE OF MULTIPLE, CROSS-REFERENCED BILLS OF LADING, AS HERE, RATHER THAN A SINGLE BILL OF LADING, TO COVER THE ENTIRE SHIPMENT DOES NOT CONVERT WHAT OTHERWISE WOULD CONSTITUTE A VOLUME SHIPMENT INTO MULTIPLE SHIPMENTS. SEE WILLINGHAM V. SELIGMAN, 179 F.2D 257; EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY CO., 234 I.C.C. 441; AND 36 COMP. GEN. 119. A VOLUME MINIMUM, AS EMPLOYED IN MOTOR FREIGHT CLASSIFICATION, IS DISTINGUISHED FROM A TRUCKLOAD MINIMUM IN THAT THE VOLUME RATE APPLIES WHEN A SHIPPER TENDERS THE VOLUME MINIMUM WEIGHT FOR TRANSPORTATION AT ONE TIME, EVEN THOUGH IT MAY EXCEED THE CARRYING CAPACITY OF THE CARRIER'S VEHICLES, AND MUST BE TRANSPORTED IN TWO OR MORE OF THEM. SEE STOVES FROM ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641, 643, (FOOTNOTE); GULF PORTS--- ALABAMA, GEORGIA AND TENNESSEE--- COMMODITY RATES, 10 M.C.C. 106 (FOOTNOTE)" AND WILLINGHAM V. SELIGMAN, CITED ABOVE. THUS, THE RECORD SHOWS THAT THE SEPARATE BILLS OF LADING WERE PARTS OF A MASTER BILL OF DING,"WY 3457522," CONCERNING A VOLUME SHIPMENT TENDERED BY A SINGLE SHIPPER AND MADE AVAILABLE TO THE CARRIER AT ONE TIME FOR SHIPMENT FROM THE SAME POINT OF ORIGIN TO THE SAME CONSIGNEE AT THE SAME DESTINATION.

YOUR EXCERPT FROM A DECISION CITED BY THE COURT IN UNITED STATES V. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, 200 F.2D 263, DOES NOT APPEAR RELEVANT TO THE FACTS PRESENT HERE. THE ISSUE HERE IS NOT WHETHER THE GOVERNMENT CAN REPUDIATE THE CONDITIONS UPON WHICH THE CONTRACT WAS MADE BUT THE NATURE OF THE CONTRACT MADE, THAT IS WHETHER ONE CONTRACT WAS MADE FOR THE CARRIAGE OF THE ENTIRE WEIGHT SHIPPED OR FIVE CONTRACTS COVERING EACH PORTION OF THE VOLUME SHIPMENT OF APPROXIMATELY 123,516 POUNDS.

ON THE RECORD NOW AVAILABLE WE MUST CONCLUDE THAT THE APPLICABLE CHARGES ARE THOSE COMPUTED AT THE VOLUME RATE AND ACTUAL WEIGHT COVERED BY EACH BILL OF LADING; ACCORDINGLY, THE DISALLOWANCES OF YOUR BILLS AS STATED IN THE SETTLEMENT CERTIFICATES OF NOVEMBER 4 AND NOVEMBER 7, 1960, ARE SUSTAINED.