B-165827, MAR. 6, 1970

B-165827, MAR. 6, 1970

TRANSPORTATION--RATES--AGENCY EFFECT SETTLEMENT, DENYING REFUND OF DEDUCTED OVERCHARGES ON BASIS OTHER CARRIER ACTED AS CLAIMANT'S PICK-UP AGENT, AND UPHOLDING APPLICABILITY OF SEC. 22 QUOTATION, AUTHORIZING SETTLED CHARGE BASIS VIA CLAIMANT CARRIER--ALTHOUGH LATTER DISCLAIMS AGENCY RELATIONSHIP--IS SUSTAINED ABSENT INFORMATION CLEARLY CONTRADICTING UNDERSTANDING OF SHIPPER AND PICK-UP CARRIER AS TO AGENCY RELATIONSHIP BETWEEN LATTER AND CLAIMANT SINCE ON PRESENT RECORD, IT IS QUESTIONABLE THAT PICK-UP CARRIER OPERATED AS PARTICIPATING CARRIER IN LINE HAUL MOVEMENT; RATHER IT REFLECTS PICK-UP CARRIER OPERATED AS AGENT FOR CLAIMANT, AND ALL PARTIES EXCEPT CLAIMANT APPEARED TO HAVE UNDERSTOOD CLAIMANT WAS DESIGNATED AND EXPECTED TO ACT AS ORIGIN CARRIER.

TO NAVAJO FREIGHT LINES, INC.:

PLEASE REFER TO YOUR LETTER OF JANUARY 22, 1970, AND EARLIER LETTERS CONCERNING YOUR CLAIM 24131. THIS CLAIM IS FOR REFUND OF $234 DEDUCTED BY OUR OFFICE AS AN OVERCHARGE ON GOVERNMENT BILL OF LADING D 0266115. THE BILL OF LADING COVERED A SHIPMENT OF GOVERNMENT PROPERTY TRANSPORTED FROM THE GILL ELECTRIC MANUFACTURING CORPORATION, REDLANDS, CALIFORNIA, TO KELLY AIR FORCE BASE, TEXAS, IN APRIL 1966. OUR SETTLEMENT IN CLAIM NO. TK-873724, DATED SEPTEMBER 5, 1968, DISALLOWED YOUR CLAIM FOR $234 ON THE GROUND THAT GRILEY SECURITY FREIGHT LINES ACTED AS PICK-UP AGENT FOR NAVAJO AND UPHELD THE APPLICABILITY OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU SECTION 22 QUOTATION ICC NO. 115, AUTHORIZING THE SETTLED CHARGE BASIS VIA NAVAJO.

IT IS YOUR POSITION THAT IT WAS NOT LEGALLY POSSIBLE FOR GRILEY TO ACT AS YOUR AGENT IN CONNECTION WITH THE TRANSPORTATION SERVICE INVOLVED AND YOU INDICATE THAT YOUR COMPANY CANNOT PAY GRILEY A DIVISION BASED ON JOINT LINE RATES, IF YOU ARE PAID ON THE BASIS OF RATES APPLICABLE TO SHIPMENTS PICKED UP BY YOU WHEN YOU WERE NOT CALLED FOR THE PICK-UP.

THE SETTLEMENT CERTIFICATE OF SEPTEMBER 5, 1968, DISALLOWING YOUR CLAIM, WAS ISSUED AFTER EXAMINATION OF CORRESPONDENCE FROM GRILEY AND GILL ELECTRIC DIVISION OF TELEDYNE, INC; TO THE DEFENSE SUPPLY AGENCY AT LOS ANGELES, CALIFORNIA. IN ITS LETTER OF MAY 22, 1968, GRILEY WROTE THE DEFENSE SUPPLY AGENCY THAT IT "HAD AN AGREEMENT IN EFFECT DURING 1966 TO PERFORM PICKUPS FOR" NAVAJO FREIGHT LINES, AMONG OTHER MOTOR CARRIERS. A LETTER OF MAY 16, 1968, THE GILL ELECTRIC DIVISION WROTE THE DEFENSE SUPPLY AGENCY THAT GRILEY WAS "AUTHORIZED BY THE LINE HAUL CARRIERS TO PICK UP EMPTY TRAILERS OF THE LINE HAUL CARRIERS, AND HOLD THEM IN READINESS FOR OUR CALL AT THEIR BRANCH TERMINAL ADJACENT TO OUR FACILITY."

THUS, ON THE BASIS OF THE PRESENT RECORD IT IS QUESTIONABLE THAT GRILEY IN THIS INSTANCE OPERATED AS A PARTICIPATING CARRIER IN A LINE HAUL MOVEMENT; RATHER, THE RECORD REFLECTS THAT GRILEY OPERATED AS AGENT FOR NAVAJO AT REDLANDS. APPARENTLY THE GOVERNMENT SUPPLIER, GILL ELECTRIC, AND GRILEY UNDERSTOOD THAT THE SERVICE THE CARRIER WAS FURNISHING GILL ELECTRIC AT THE TIME INVOLVED (1966) WAS A PICK-UP SERVICE, RESULTING IN TRANSFER OF THE MATERIAL TO LINE HAUL CARRIERS, SUCH AS NAVAJO, AT REDLANDS. PICK-UP SERVICE ARRANGEMENTS OF THIS KIND WITHIN THE TERMINAL ZONES OF VARIOUS CITIES DO NOT APPEAR TO BE UNCOMMON. TERMINAL OPERATIONS OF SUCH A NATURE ARE EXEMPT FROM REGULATION BY THE INTERSTATE COMMERCE COMMISSION. AS THE ENCLOSED COPY OF DECISION B-152282, DATED JANUARY 9, 1964, TO YOUR COMPANY SHOWS, THERE APPEAR TO BE MANY CIRCUMSTANCES WHERE ONE CERTIFICATED ROUTE CARRIER MAY OPERATE AS AN AGENT FOR ANOTHER AUTHORIZED CERTIFICATED CARRIER.

IT IS NOT CLEAR FROM THIS RECORD THAT THE SERVICE PERFORMED WAS A JOINT LINE SERVICE, WITH EACH CARRIER SHARING IN THE REVENUES ON A DIVISION BASIS; THERE IS NO DOCUMENTATION, SUCH AS A MANIFEST OR WAYBILL, WHICH WOULD DESIGNATE THE POINT OF INTERCHANGE BETWEEN GRILEY AND NAVAJO, AND ALL INTERESTED PARTIES EXCEPT NAVAJO APPEAR TO HAVE UNDERSTOOD THAT NAVAJO WAS DESIGNATED AND EXPECTED TO ACT AS THE ORIGIN CARRIER.

IN THE ABSENCE OF ANY INFORMATION CLEARLY CONTRADICTING THE UNDERSTANDING OF THE SHIPPER AND GRILEY AS TO THE AGENCY RELATIONSHIP BETWEEN GRILEY AND NAVAJO, WE DO NOT BELIEVE THAT THERE IS JUSTIFICATION FOR MODIFYING THE SETTLEMENT OF SEPTEMBER 5, 1968. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM BY THAT SETTLEMENT IS SUSTAINED.