B-156704, SEP. 27, 1965

B-156704: Sep 27, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 30. THE RECORD SHOWS THAT VAN-PAK ORIGINALLY BILLED AND WAS PAID FREIGHT CHARGES IN THE AMOUNT OF $1. SHOWS THAT THE SHIPMENT WAS PICKED UP BY VAN-PAK'S AGENT AND DELIVERED AT DESTINATION BY ANOTHER VAN-PAK AGENT. THE BILL OF LADING WAS ANNOTATED TO SHOW THAT THE SHIPMENT WAS RELEASED AT FULL VALUE AND THAT THROUGH CONTAINER (DOOR-TO- DOOR) SERVICE WAS REQUESTED. THERE WAS A FURTHER ANNOTATION INDICATING "AGREED COST PER CWT NET IS $38.90.'. THE HOUSEHOLD GOODS WERE CONSIGNED TO SERGEANT JORDAN. WAS ISSUED BY THE U.S. THE CONSIGNEE'S CERTIFICATE OF DELIVERY ACTUALLY WAS ACCOMPLISHED BY SERGEANT JORDAN AT EL PASO. THE CHARGES ORIGINALLY PAID WERE BASED ON THE ACTUAL WEIGHT (2.

B-156704, SEP. 27, 1965

TO VAN-PAK, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1965, REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 26, 1965 (OUR CLAIM TK-777190), WHICH DISALLOWED VAN-PAK INCORPORATED'S SUPPLEMENTAL BILL NO. 8 WFTS E 8 FOR $200.13.

THE RECORD SHOWS THAT VAN-PAK ORIGINALLY BILLED AND WAS PAID FREIGHT CHARGES IN THE AMOUNT OF $1,152.74, AS AN UNREGULATED FREIGHT FORWARDER, BY VOUCHER NO. 163214 IN THE MARCH 1961 ACCOUNTS OF LIEUTENANT COLONEL A. G. PERRY FOR THE TRANSPORTATION OF A SHIPMENT OF HOUSEHOLD GOODS OWNED BY SERGEANT NORMAL L. JORDAN, WHICH WEIGHED 2,442 POUNDS AND MOVED FROM FRANKFURT, GERMANY, TO EL PASO, TEXAS, UNDER GOVERNMENT BILL OF LADING WY- 10451170.

THE BILL OF LADING ISSUED OCTOBER 18, 1960, BY THE TRANSPORTATION OFFICER, FRANKFURT POST, APO 757, UNITED STATES FORCES, SHOWS THAT THE SHIPMENT WAS PICKED UP BY VAN-PAK'S AGENT AND DELIVERED AT DESTINATION BY ANOTHER VAN-PAK AGENT. THE BILL OF LADING WAS ANNOTATED TO SHOW THAT THE SHIPMENT WAS RELEASED AT FULL VALUE AND THAT THROUGH CONTAINER (DOOR-TO- DOOR) SERVICE WAS REQUESTED. THERE WAS A FURTHER ANNOTATION INDICATING "AGREED COST PER CWT NET IS $38.90.' THE HOUSEHOLD GOODS WERE CONSIGNED TO SERGEANT JORDAN, C/O CENTRAL FIREPROOF STORAGE WAREHOUSE, INC; BROOKLYN, NEW YORK,"PENDING FURTHER SHIPPING ORDER.' A NOTICE OF DIVERSION OR RECONSIGNMENT (TCBAT FORM 286) DATED NOVEMBER 21, 1960, WAS ISSUED BY THE U.S. ARMY TRANSPORTATION TERMINAL AT BROOKLYN, AND THE CONSIGNEE'S CERTIFICATE OF DELIVERY ACTUALLY WAS ACCOMPLISHED BY SERGEANT JORDAN AT EL PASO, TEXAS, DECEMBER 9, 1960.

THE CHARGES ORIGINALLY PAID WERE BASED ON THE ACTUAL WEIGHT (2,442 POUNDS) AND A RATE APPLICABLE BETWEEN GERMANY AND TEXAS OF $45 PER 100 POUNDS NAMED IN APPENDIX III OF VAN-PAK'S NONDOMESTIC MILITARY HOUSEHOLD GOODS SERVICE TENDER, EFFECTIVE JULY 1, 1960, PLUS A DIVERSION CHARGE OF $5, TOGETHER WITH THE SUM OF $48.84 FOR DELIVERY TO STORAGE IN TRANSIT ($24.42), PLUS WAREHOUSE HANDLING ($12.21), AND STORAGE CHARGES ($12.21) AT EL PASO.

THE ADDITIONAL CHARGES CLAIMED IN THE SUPPLEMENTAL BILL ARE BASED UPON THE USE OF A COMBINATION OF RATES MADE OVER THE DIVERSION POINT OF NEW YORK, COMPUTED ON THE BASIS OF A RATE OF $38.90 PER 100 POUNDS AS PUBLISHED ON 1ST REVISED PAGE 3 OF YOUR ABOVE-NAMED TENDER FOR THE MOVEMENT TO NEW YORK AND A COMPETITIVE BASIS RATE OF $14.50 PER 100 POUNDS FOR THE LAND-HAUL MILEAGE OF 2,169 MILES FROM NEW YORK TO EL PASO, TEXAS, AS NAMED IN MILITARY RATE TENDER I.C.C. NO. 4, EFFECTIVE FEBRUARY 14, 1958. AT THE DATE THE SHIPMENT MOVED, VAN-PAK DID NOT PARTICIPATE IN ANY OF THE HOUSEHOLD GOODS TARIFFS OR TENDERS PUBLISHING RATES APPLICABLE ON LAND PORTION OF THE HAUL. AGAIN INCLUDED IN THE SUPPLEMENTAL BILL WERE ACCESSORIAL CHARGES AGGREGATING $48.84 FOR THE STORAGE FEES MENTIONED ABOVE. IN OUR DISALLOWANCE OF THE CLAIM, YOU WERE ADVISED THAT APPENDIX III OF VAN-PAK'S TENDER MADE NO PROVISION FOR ADDITIONAL CHARGES DUE TO DIVERSION IN EXCESS OF THE THROUGH RATE TO FINAL DESTINATION PLUS THE DIVERSION CHARGE OF $5, AND THEREFORE, THE THROUGH RATE OF $45 PER 100 POUNDS TO EL PASO PLUS THE $5 DIVERSION CHARGE WAS FOR APPLICATION. WAS FURTHER STATED THAT THE STORAGE AND WAREHOUSE HANDLING ITEMS OF $12.21 EACH WERE NOT ALLOWED SINCE THE RECORD SHOWED THE HOUSEHOLD GOODS WERE STORED AT WAREHOUSE I, FORT BLISS, TEXAS, A MILITARY WAREHOUSE AND THE TENDER, IN EFFECT, PROVIDES FOR STORAGE AND WAREHOUSE HANDLING CHARGES ONLY WHERE NON GOVERNMENT FACILITIES ARE USED. A NOTICE OF OVERCHARGE, FORM 1003, WAS ISSUED IN THE AMOUNT OF $24.42.

YOUR REGISTERED AGENT, IN THE PRESENT LETTER, REQUESTS REVIEW OF THE DISALLOWANCE AND ASKS THAT ACTION ON THE FORM 1003 BE HELD IN ABEYANCE PENDING FINAL DETERMINATION OF THE APPEAL. HE CONTENDS THAT THE ORIGINAL CONTRACT, THE GOVERNMENT BILL OF LADING, DOES NOT PERMIT RECONSIGNMENT OF THE SHIPMENT AND, MOREOVER, THAT THERE IS NO PROVISION FOR RECONSIGNMENT IN THE TARIFF COVERING THE CONSIGNMENT TO THE FIRST DESTINATION. THE AGENT GOES ON TO SAY, CITING 210 I.C.C. 454, (APPARENTLY INTENDING TO REFER TO 210 I.C.C. 434-435) THAT THE RULES OF THE RECONSIGNMENT TARIFF, IF ANY, HAVE APPLICATION ONLY WHEN THE TARIFF NAMING LINE-HAUL RATES MAKE REFERENCE THERETO AND THERE WAS NO PROVISION AT SHIPPING DATE FOR RECONSIGNMENT IN ANY OF YOUR TARIFFS. FOR THESE REASONS HE MAINTAINS THAT A COMBINATION OF RATES OVER BROOKLYN IS THE ONLY AVAILABLE BASIS. IT IS NOTED THAT THE AGENT REFERS TO RECONSIGNMENT OF THE SHIPMENT, NOT DIVERSION AS ORIGINALLY BILLED. THE RECORD DOES NOT DISCLOSE WHEN THE NOTICE OF DIVERSION OR RECONSIGNMENT WAS RECEIVED BY VAN-PAK, BUT THERE IS NO EVIDENCE THAT THE SHIPMENT HAD THEN BEEN REMOVED FROM ITS POSSESSION. NONETHELESS, THE ONLY TENDER EFFECTIVE AND APPLICABLE AT THE DATE OF MOVEMENT MAKES NO PROVISION, ASIDE FROM THE $5 CHARGE FOR EACH AUTHORIZED DIVERSION, FOR ADDITIONAL TRANSPORTATION CHARGES DUE TO EITHER DIVERSION OR RECONSIGNMENT. ALTHOUGH THE FINDINGS OF THE INTERSTATE COMMERCE COMMISSION ARE NOT CONTROLLING IN THE CASE, AS HERE, OF A FREIGHT FORWARDER ENGAGED ONLY IN THE TRANSPORTATION OF USED HOUSEHOLD GOODS, THUS EXEMPT FROM THE PROVISIONS OF THE INTERSTATE COMMERCE ACT (PART IV, SECTION 402), THE COMMISSION HOLDS THE VIEW THAT, WHEN NOT SPECIFICALLY QUALIFIED IN TARIFFS, THE TERM "RECONSIGNMENT" OR "DIVERSION" INCLUDES CHANGES IN DESTINATION, ROUTING, CONSIGNOR OR CONSIGNEE AND THAT IF A CARRIER WISHES TO DISTINGUISH BETWEEN SUCH CHANGES IN ITS PRIVILEGES OR CHARGES, IT MUST SO SPECIFY IN ITS TARIFF RULES. SEE RULE 59/B) TARIFF CIRCULAR NO. 20, 49 CODE OF FEDERAL REGULATIONS 141.59.

APPENDIX III, PAGE 3 EFFECTIVE JULY 1, 1960, OF VAN-PAK'S NON DOMESTIC MILITARY HOUSEHOLD GOODS SERVICE TENDER IS ENTITLED "THRU CONTAINER SERVICE TENDER" AND CONTAINS THE RATES APPLICABLE ON SHIPMENTS OF HOUSEHOLD GOODS MOVING TO AND FROM WEST GERMANY AND BERLIN AND ALL POINTS WITHIN SPECIFICALLY NAMED AREAS OR CITIES. ON THE UNNUMBERED PAGE CAPTIONED "RATES AND CHARGES," UNDER THE HEADING APPLICATION OF RATES IT IS PROVIDED IN PERTINENT PART AS FOLLOWS:

"TRANSPORTATION RATES INCLUDE THE FOLLOWING SERVICES:

"3. ALL LAND AND WATER TRANSPORTATION FROM ORIGIN TO DESTINATION; EXPORT AND IMPORT SERVICE CHARGES; AND THE ADDITIONAL TRANSPORTATION CHARGE FOR SHIPMENTS DESTINED TO SUCH APPLICABLE AREAS.

"TRANSPORTATION RATES DO NOT INCLUDE THE FOLLOWING SERVICES:

"2. STORAGE-IN-TRANSIT AND WAREHOUSE HANDLING CHARGES, UNLESS GOVERNMENT FACILITIES ARE USED * * *.

"4. DIVERSION OF SHIPMENT--- $5.00 EACH AUTHORIZED DIVISION.'

YOUR ATTENTION IS ALSO INVITED TO PAGE 3, PARAGRAPH XIII, CAPTIONED "STORAGE-IN-TRANSIT" OF THE SERVICE TENDER WHEREIN IT IS STATED THAT STORAGE IN TRANSIT WILL BE PROVIDED FOR A PERIOD NOT TO EXCEED 180 DAYS, AS REQUESTED BY THE TRANSPORTATION OFFICER, AND THAT THE FORWARDER WILL CONTACT DESTINATION TRANSPORTATION OFFICER, DESIGNATED ON THE GOVERNMENT BILL OF LADING, PRIOR TO PLACING THE SHIPMENT IN STORAGE AT ULTIMATE DESTINATION.

VAN-PAK'S TENDER MAKES NO REFERENCE TO RULES OR PROVISIONS CONTAINED IN ANOTHER TARIFF OR TENDER AND ASIDE FROM THE PROVISION FOR A $5 DIVERSION CHARGE, SUCH TENDER IS OTHERWISE SILENT CONCERNING DIVERSION AND/OR RECONSIGNMENT. THERE APPEARS TO BE NO BASIS FOR APPLYING A COMBINATION OF RATES FOR THE SUBJECT SHIPMENT, PARTICULARLY IN VIEW OF THE FACT THAT VAN- PAK HAD NO PUBLISHED RATE TARIFFS OR TENDERS APPLICABLE ON WHOLLY INLAND MOVEMENTS AT THE DATE OF SHIPMENT, COUPLED WITH THE ANNOTATION "PENDING FURTHER SHIPPING ORDER" ON THE FACE OF THE BILL OF LADING, WHICH SHOULD HAVE ALERTED THE CARRIER TO THE FACT THAT ADDITIONAL TRANSPORTATION OF THE HOUSEHOLD GOODS WAS CONTEMPLATED AFTER ARRIVAL AT THE PORT. IT IS, THEREFORE, OUR POSITION THAT THE OMISSION OF A RULE FOR COMPUTING TRANSPORTATION CHARGES ON DIVERTED SHIPMENTS, ALONG WITH THE SPECIFIC INCLUSION OF A FEE FOR DIVERSION SERVICE AND THE WORDING OF THE STORAGE-IN -TRANSIT PARAGRAPH, CLEARLY INDICATE THAT THE RATE TENDER CONTEMPLATED THAT THE THROUGH RATE TO THE ULTIMATE DESTINATION PLUS THE $5 DIVERSION CHARGE APPLIED TO SHIPMENTS DIVERTED EN ROUTE.

IN THE CIRCUMSTANCES, THE SETTLEMENT OF JANUARY 26, 1965, IS SUSTAINED AND THE AMOUNT OF THE 1003, $24.42, SHOULD PROMPTLY BE REFUNDED SO AS TO AVOID THE NECESSITY OF TAKING FURTHER ..END :