B-154187, JUL. 10, 1964

B-154187, JUL. 10, 1964

TO WESTERN TRUCK LINES, LTD.:

IN YOUR LETTER OF DECEMBER 31, 1963, YOU, IN EFFECT, REQUEST REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM G-02871 FOR ADDITIONAL CHARGES IN THE AMOUNT OF $448.30 ALLEGED TO BE DUE FOR A SHIPMENT OF AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILES, WEIGHING 51,426 POUNDS, TRANSPORTED IN TWO SEALED VEHICLES FROM BYNUM, ALABAMA, TO CAMP ROBERTS, CALIFORNIA, UNDER GOVERNMENT BILLS OF LADING B-0616119 AND B-0616120 DATED JUNE 19, 1961. THE ROUTING ON THE BILLS OF LADING WAS IDENTICAL AND BOTH ARRIVED AT DESTINATION ON JUNE 29, 1961, BEING DELIVERED BY CONSTRUCTORS TRANSPORT COMPANY WHICH WAIVED AND ASSIGNED ITS RIGHT TO PAYMENT TO YOUR CORPORATION.

FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES IN THE AMOUNT OF $6,192 COMPUTED ON THE BASIS OF A CLASS 100 RATE OF $10.32 PER 100 POUNDS, ON A MINIMUM WEIGHT OF 30,000 POUNDS FOR EACH VEHICLE. ON AUDIT OF THE PAYMENT VOUCHER, INQUIRY WAS MADE AS TO THE MANNER OF TENDERING THE SHIPMENT AND THE ADMINISTRATIVE OFFICE ADVISED BY1ST INDORSEMENT DATED MAY 22, 1962, AS FOLLOWS:

"1. THE TWO BILLS OF LADING ISSUED COVER A SINGLE VOLUME SHIPMENT WHICH WAS AVAILABLE AND TENDERED TO THE CARRIER ON SAME DAY.'

ON THE BASIS OF THAT INFORMATION OUR OFFICE ISSUED AN OVERCHARGE NOTICE (FORM 1003) DATED JULY 6, 1962, FOR AN OVERPAYMENT IN THE AMOUNT OF $448.30. THIS AMOUNT REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT PAID AND THE CHARGES DEEMED APPLICABLE IN THE AMOUNT OF $5,743.70 COMPUTED AT THE RATE OF $10.32 PER 100 POUNDS ON 25,770 POUNDS, AS 30,000 POUNDS, FOR THE LADING IN VAN NO. 4672 ($3,096) PLUS $10.32 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 25,656 POUNDS LOADED IN VAN NO. 4684 ($2,647.70), AS PROVIDED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU, AGENT'S TARIFF NO. 21-B, MF-I.C.C. NO. 117. THE AMOUNT OF THE OVERPAYMENT WAS SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION FROM MONIES OTHERWISE OWING.

BY LETTER DATED FEBRUARY 5, 1963, YOU PROTESTED THE DEDUCTION, ALLEGING THAT ONLY 1,300 CUBIC FEET OF THE 1,500 CUBIC FOOT CAPACITY OF EACH OF THE VEHICLES WAS UTILIZED AND THAT EACH WAS COVERED BY A SEPARATE BILL OF LADING.

THE ENTIRE SHIPMENT EXCEEDED THE CAPACITY OF A SINGLE VEHICLE, AND A VOLUME MINIMUM IS DISTINGUISHED FROM A TRUCKLOAD MINIMUM IN THAT THE VOLUME RATE APPLIES WHEN A SHIPPER TENDERS THE VOLUME MINIMUM WEIGHT OF A COMMODITY FOR TRANSPORTATION AT ONE TIME. THIS IS SO EVEN THOUGH SUCH VOLUME TENDERED MAY EXCEED THE CARRYING CAPACITY OF THE LARGEST VEHICLE AVAILABLE OR MAY EXCEED THE LOAD LIMITS ALLOWED UNDER VARIOUS STATE REGULATIONS GOVERNING THE TRANSPORTATION OF AMMUNITION, EXPLOSIVES AND OTHER DANGEROUS ARTICLES BY MOTOR VEHICLES, AND THOUGH THE LOAD MUST BE TRANSPORTED IN TWO OR MORE VEHICLES, WHEREAS, A TRUCKLOAD MINIMUM WEIGHT IS GENERALLY UNDERSTOOD TO BE THE QUANTITY WHICH A CARRIER CAN TRANSPORT IN A SINGLE VEHICLE. STOVES FROM GULF PORTS-ALABAMA, GEORGIA AND TENNESSEE--- COMMODITY RATES, 10 M.C.C. 106 (FOOTNOTE); ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641, 643 (FOOTNOTE). THEREFORE APPEARS TO BE IMMATERIAL THAT THE VEHICLES WERE NOT LOADED TO FULL CAPACITY.

IN YOUR REQUEST FOR RECONSIDERATION YOU STATE

"* * * THE TRANSPORTATION OFFICER AT THE POINT OF ORIGIN TENDERED THE GOODS FOR SHIPMENT IN A GIVEN MANNER--- THAT IS, ON SEPARATE BILLS OF LADING, AND THE FREIGHT CHARGES SHOULD BE ASSESSED ACCORDINGLY EVEN THOUGH LOWER CHARGES WOULD HAVE BEEN APPLICABLE HAD THE MOVEMENT BEEN TENDERED FOR SHIPMENT IN A DIFFERENT MANNER.'

HOWEVER, THE DUTY OF ISSUING APPROPRIATE BILLS OF LADING RESTS UPON THE CARRIER, NOT THE SHIPPER. 49 U.S.C. 20 (11), 49 U.S.C. 319. THE FACT THAT IT IS NOT UNCOMMON FOR SHIPPERS TO PREPARE BILLS OF LADING FOR EXECUTION BY THE CARRIERS' AGENTS DOES NOT RELIEVE THEM OF THESE DUTIES. COOPERATIVE GRANGE LEAGUE FEDERATION EXCHANGE, INC. V. CHICAGO, B. AND Q.R., 308 I.C.C. 507; SOUTHGATE BROKERAGE CO. INC., V. LEHIGH VALLEY R.CO., 274 I.C.C. 245; EXPOSITION COTTON MILLS V. SOUTHERN RY.CO., 234 I.C.C. 441. THE ADMINISTRATIVE OFFICE REPORTS THAT THE SHIPMENT WAS TENDERED AS A VOLUME SHIPMENT, WHICH APPEARS TO DISTINGUISH THIS CASE FROM THE SITUATION IN DALLAS COTTON EXCHANGE V. ATCHISON, T. AND S.F.RY.CO., 163 I.C.C. 57, CITED BY YOU, WHERE IN EFFECT THE SHIPPER REQUESTED THAT THE TWO SHIPMENTS BE HANDLED UNDER TWO SEPARATE ORDER BILLS OF LADING THOUGH LOADED IN A SINGLE CAR. THE FAILURE OF THE CARRIER TO ISSUE A PROPER BILL OF LADING SHOULD NOT DEPRIVE THE SHIPPER OF THE BENEFIT OF THE RATE FOR THE SERVICE RECEIVED BY HIM. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM APPEARS TO BE CORRECT AND IS SUSTAINED.