B-155080, JAN. 5, 1965

B-155080: Jan 5, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 26 AND DECEMBER 11. FOR THIS TRANSPORTATION YOU CLAIMED ORIGINALLY AND WERE PAID EXCLUSIVE USE OF VEHICLE CHARGES IN THE AMOUNT OF $1. IN THE AUDIT OF THE PAYMENT VOUCHER OUR TRANSPORTATION DIVISION DETERMINED THAT THE APPLICABLE CHARGES WERE $652.81. A NOTICE OF OVERCHARGE IN THE AMOUNT OF $421.71 WAS ISSUED ON THAT BASIS. THAT AMOUNT WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE ON A SUBSEQUENT BILL. AT THE TIME OF TENDER TO THE ORIGIN CARRIER IT WAS APPARENTLY BELIEVED THAT THE PROVISIONS OF ATLAS VAN LINES SECTION 22 TENDER I.C.C. THERE IS THUS AMBIGUITY IN THE TENDER AS TO THE CONTROLLING MINIMUM WEIGHT TO BE OBSERVED IN ANY PARTICULAR INSTANCE.

B-155080, JAN. 5, 1965

TO ATLAS VAN LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 26 AND DECEMBER 11, 1964, IN WHICH YOU REQUESTED A REVIEW OF THE SETTLEMENT CERTIFICATE (TK- 777407), DATED MAY 18, 1964, DISALLOWING YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF ELECTRICAL APPLIANCES, NOI (DESCRIBED AS A SERGEANT CLASSROOM TRAINER) WHICH MOVED FROM COCKEYSVILLE, MARYLAND, TO FORT SILL, OKLAHOMA, UNDER GOVERNMENT BILL OF LADING B-1223814, IN JUNE 1962.

FOR THIS TRANSPORTATION YOU CLAIMED ORIGINALLY AND WERE PAID EXCLUSIVE USE OF VEHICLE CHARGES IN THE AMOUNT OF $1,074.52, COMPUTED ON THE BASIS OF A MINIMUM WEIGHT OF 16,975 POUNDS AT A RATE OF $6.33 PER 100 POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER OUR TRANSPORTATION DIVISION DETERMINED THAT THE APPLICABLE CHARGES WERE $652.81, COMPUTED ON THE BASIS OF 6,730 POUNDS, THE ACTUAL WEIGHT OF THE SHIPMENT, AND A RATE OF $9.70 PER 100 POUNDS FOR 1,408 MILES, AS PUBLISHED AS MOVERS' AND WAREHOUSEMEN'S ASSOCIATION OF AMERICA, INC., SECTION 22 MILITARY RATE TENDER I.C.C. NO. 1 -R, SECTION VI. A NOTICE OF OVERCHARGE IN THE AMOUNT OF $421.71 WAS ISSUED ON THAT BASIS. UPON YOUR FAILURE TO MAKE REFUND, THAT AMOUNT WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE ON A SUBSEQUENT BILL.

THE BILL OF LADING HERE INVOLVED BEARS, IN A SPACE DESIGNATED FOR "TARIFF OR SPECIAL RATE AUTHORIZED (ON TL OR VOL ONLY)," THE NOTATION "QUO ATLAS A -131 EFF 11/16/61.' AT THE TIME OF TENDER TO THE ORIGIN CARRIER IT WAS APPARENTLY BELIEVED THAT THE PROVISIONS OF ATLAS VAN LINES SECTION 22 TENDER I.C.C. A-131 WOULD PRODUCE THE MOST ECONOMICAL CHARGE BASIS.

THE FIRST PAGE OF TENDER I.C.C. A-131 CONTAINS THE ENTRY "10,000 LB. TRUCKLOAD" IN ITEM 12, CAPTIONED "MINIMUM WEIGHTS.' THE RATE SCHEDULE ATTACHED TO THE TENDER INCLUDES THREE COLUMNS OF RATES (BY MILEAGE) BASED ON MINIMUM WEIGHTS OF 8,000, 12,000, AND 15,000 POUNDS. THERE IS THUS AMBIGUITY IN THE TENDER AS TO THE CONTROLLING MINIMUM WEIGHT TO BE OBSERVED IN ANY PARTICULAR INSTANCE. SINCE THE SHIPMENT INVOLVED WEIGHED LESS THAN 8,000 POUNDS AND BECAUSE OF THE AMBIGUITY IN THE TENDER, THERE IS SOME BASIS FOR GIVING EFFECT TO THE 8,000 POUND MINIMUM WEIGHT FOR THE COMPUTATION OF THE ALLOWABLE CHARGES. APPLICATION OF THAT CHARGE BASIS WOULD PRODUCE LOWER CHARGES THAN THOSE FOUND ALLOWABLE BY OUR TRANSPORTATION DIVISION.

WHILE THERE IS SOME INDICATION ON THE FACE OF BILL OF LADING B 1223814 THAT A 35-FOOT VAN WAS ORDERED AND FURNISHED--- THERE IS NOTHING IN THE RECORD TO CONFIRM THE ALLEGATION THAT THE VAN, NO. 822A, WAS A 35-FOOT VAN --- THE RESPONSIBLE ADMINISTRATIVE OFFICE HAS REPORTED THAT EXCLUSIVE USE OF VEHICLE WAS NEITHER REQUESTED NOR AUTHORIZED BY THE GOVERNMENT AND THAT NO SPECIFIC AMOUNT OF SPACE WAS RESERVED BY THE GOVERNMENT, IT CANNOT BE CONCLUDED WITHOUT FURTHER EVIDENCE THAT THE GOVERNMENT SHIPPING OFFICER IN FACT ORDERED A 35 FOOT VAN AND EFFECTIVELY DEPRIVED THE CARRIER FROM UTILIZING ANY EXCESSIVE SPACE THAT MIGHT HAVE BEEN AVAILABLE AFTER LOADING OF THE SERGEANT CLASSROOM TRAINER. THE COPY OF A LETTER DATED OCTOBER 14, 1963--- OVER A YEAR AFTER THE SHIPMENT WAS TRANSPORTED--- FROM THOMAS J. HOLDEN (APPARENTLY AN EMPLOYEE OF THE SHIPPER) TO THE PHILADELPHIA PROCUREMENT DISTRICT, U.S. ARMY, DOES NOT SERVE TO ESTABLISH THAT EXCLUSIVE USE OF A 35-FOOT VAN WAS ORDERED, IN THE LIGHT OF THE DEFICIENT BILL OF LADING RECORD. WE NOTE THAT A MEMORANDUM COPY OF THE GOVERNMENT BILL OF LADING RETAINED BY THE ADMINISTRATIVE OFFICE BEARS NO REFERENCE TO EXCLUSIVE USE, NOT EVEN IN THE LIMITED MANNER REFLECTED BY THE TERM "EXCL. USE 35 ., " APPARENTLY PLACED ON THE ORIGINAL BILL OF LADING BY CARRIER EMPLOYEES OR AGENTS. THE RECORD, THEREFORE, DOES NOT SUPPORT THE ALLEGATION THAT THE GOVERNMENT ORDERED OR AUTHORIZED ITS AGENTS TO REQUIRE THE CARRIER TO RESERVE ALL THE SPACE IN, OR EXCLUSIVE USE OF, ANY TYPE VAN.

THE ABSENCE OF A SEAL RECORD OR TRUCK MANIFEST OR SOME OTHER TYPE OF DOCUMENT WHICH WOULD TEND TO ESTABLISH THAT THE CARRIER WAS EFFECTIVELY PRECLUDED FROM UTILIZING ANY AVAILABLE CARGO SPACE IN A 35 FOOT VAN LENDS SUPPORT TO THE VIEW THAT THE SHIPMENT INVOLVED WAS TENDERED TO THE CARRIER WITHOUT REFERENCE TO ANY SPECIAL ARRANGEMENTS OTHER THAN THE GENERAL INDICATION THAT TENDER I.C.C. A-131 WAS THE SPECIAL RATE AUTHORITY INVOLVED. HOWEVER, REFERENCE TO THE TENDER IN THE BILL OF LADING DOES NOT NECESSARILY OBLIGE THE GOVERNMENT TO APPLY THE RATES CONTAINED THEREIN UNDER THE CONDITIONS THE RECORD SHOWS AS HAVING PREVAILED IN THIS INSTANCE. SUCH CONDITIONS SEEM OPERATIVE TO ALLOW THE GOVERNMENT TO APPLY (AS IN THE AUDIT ACTION TAKEN BY OUR TRANSPORTATION DIVISION) THE MILITARY RATE TENDER (I.C.C. NO. 1-R) CHARGE BASIS WHICH RESULTED IN THE OVERCHARGE COMPUTATION OF $421.71. THERE IS NO APPARENT REASON WHY THE GOVERNMENT CANNOT, AS BETWEEN TWO EQUALLY APPLICABLE TENDERS, SELECT THE ONE WHICH PROVIDES THE LOWEST ALLOWABLE CHARGE BASIS.

OUR SETTLEMENT CERTIFICATE DATED MAY 18, 1964, DISALLOWING YOUR CLAIM FOR $421.71, WAS CONSISTENT WITH THE FOREGOING AND IS, THEREFORE, SUSTAINED.