B-168910, JUL. 2, 1970

B-168910: Jul 2, 1970

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BILLS OF LADING WHICH WERE NOT ONLY CROSS REFERENCE TO THE OTHERS USING PHRASE "THIS SHIPMENT IN CONJUNCTION WITH" BUT WHICH ALSO CONTAINED NOTATIONS INDICATING THAT THE MATERIAL WAS PART OF A LARGER VOLUME SHIPMENT THE APPLICATION OF THE VOLUME RATE WAS PROPER. WHICH WAS BASED ON FACT THAT CROSS REFERENCING OF BILLS OF LADING WAS NOT CLEAR AND THE SEALING OF VEHICLES WAS INDICATIVE OF SEPARATE SHIPMENTS FACTORS NOT PRESENT IN THE INSTANT CASE. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23. THE PROPERTY COVERED BY THESE BILLS OF LADING WAS TRANSPORTED FROM TINKER AIR FORCE BASE. TRANSPORTATION CHARGES WERE BILLED AND PAID ON THE BASIS OF A LESS THAN- TRUCKLOAD RATE OF $4.35 PER 100 POUNDS APPLIED TO THE ACTUAL WEIGHT OF THE PROPERTY COVERED BY EACH BILL OF LADING.

B-168910, JUL. 2, 1970

TRANSPORTATION -- FREIGHT RATES -- LESS THAN TRUCKLOAD V VOLUME RATE DECISION TO NAVAJO FREIGHT LINES, INC., DENYING RECLAIM FOR FREIGHT CHARGES ON SHIPMENT OF INTERNAL COMBUSTION ENGINE PARTS TRANSPORTED FROM TINKER AIR FORCE BASE OKLA., TO EL SEGUNDO, CALIF. ON GB/L'S. IN SHIPMENT OF ENGINE PARTS UNDER THREE GOVT. BILLS OF LADING WHICH WERE NOT ONLY CROSS REFERENCE TO THE OTHERS USING PHRASE "THIS SHIPMENT IN CONJUNCTION WITH" BUT WHICH ALSO CONTAINED NOTATIONS INDICATING THAT THE MATERIAL WAS PART OF A LARGER VOLUME SHIPMENT THE APPLICATION OF THE VOLUME RATE WAS PROPER. THE CASE DISTINGUISHED FROM AN INFORMAL OPINION OF ICC TO STRICKLAND TRANSPORTATION CO. WHICH WAS BASED ON FACT THAT CROSS REFERENCING OF BILLS OF LADING WAS NOT CLEAR AND THE SEALING OF VEHICLES WAS INDICATIVE OF SEPARATE SHIPMENTS FACTORS NOT PRESENT IN THE INSTANT CASE.

TO NAVAJO FREIGHT LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1970, ASKING FOR REVIEW OF SETTLEMENTS TK 871411, TK 871412 AND TK 871413, YOUR CLAIMS 23286, 23287 AND 23288. THESE SETTLEMENTS RELATE TO GOVERNMENT BILLS OF LADING C-5631103 (COVERING 7,160 POUNDS OF INTERNAL COMBUSTION ENGINE PARTS), C-5631104 (COVERING 9,660 POUNDS OF INTERNAL COMBUSTION ENGINE PARTS) AND C-5631105 (COVERING 7,160 POUNDS OF INTERNAL COMBUSTION ENGINE PARTS). THE PROPERTY COVERED BY THESE BILLS OF LADING WAS TRANSPORTED FROM TINKER AIR FORCE BASE, OKLAHOMA, TO EL SEGUNDO, CALIFORNIA, VIA RED BALL MOTOR FREIGHT AND NAVAJO.

TRANSPORTATION CHARGES WERE BILLED AND PAID ON THE BASIS OF A LESS THAN- TRUCKLOAD RATE OF $4.35 PER 100 POUNDS APPLIED TO THE ACTUAL WEIGHT OF THE PROPERTY COVERED BY EACH BILL OF LADING. IN THE AUDIT HERE, THE CHARGES DEEMED APPLICABLE WERE COMPUTED ON THE BASIS OF A VOLUME RATE OF $3.61 PER 100 POUNDS ALSO APPLIED TO THE ACTUAL WEIGHT OF THE PROPERTY COVERED BY EACH BILL OF LADING. THIS VOLUME RATE APPLIED IN CONNECTION WITH A VOLUME MINIMUM WEIGHT OF 14,000 POUNDS. NONE OF THE BILLS OF LADING IN QUESTION COVERED A QUANTITY OF PROPERTY WEIGHING AS MUCH AS 14,000 POUNDS BUT EACH BILL OF LADING WAS ANNOTATED TO INDICATE THAT IT WAS ISSUED TO COVER A PART LOT OF A SINGLE SHIPMENT AND THE AGGREGATE WEIGHT OF THESE PART LOTS EXCEEDED 14,000 POUNDS.

THE DIFFERENCE BETWEEN THE LESS-THAN-TRUCKLOAD RATE BASIS AND THE VOLUME RATE BASIS RESULTED IN OVERCHARGES OF $52.98 ON BILL OF LADING C 5631103, $71.48 ON BILL OF LADING C-5631104 AND $52.98 ON BILL OF LADING C- 5631105. THESE AMOUNTS WERE COLLECTED AND THE SETTLEMENTS IN QUESTION DENIED YOUR RECLAIMS FOR THEM.

IN YOUR REQUEST FOR REVIEW, YOU INDICATE THAT THE BILL OF LADING ANNOTATIONS DID NOT EFFECTIVELY SHOW THAT EACH LOT WAS PART OF A SINGLE SHIPMENT. IN SUPPORT OF THIS VIEW, YOU ENCLOSED A COPY OF AN INFORMAL OPINION ISSUED BY THE SECRETARY OF THE INTERSTATE COMMERCE COMMISSION TO THE STRICKLAND TRANSPORTATION COMPANY, RELATING TO THE TRANSPORTATION OF EXPLOSIVE AMMUNITION UNDER GOVERNMENT BILLS OF LADING WV-8562070 AND WV- 8562071. BILL OF LADING WV-8562070 WAS ANNOTATED AS FOLLOWS:

"THIS SHIPMENT IS IN CONNECTION WITH

B/L WV-8562071" AND BILL OF LADING WV-8562071 WAS ANNOTATED:

"THIS SHIPMENT IS IN CONNECTION WITH

B/L WV-8562070" THE TWO LOTS OF AMMUNITION COVERED BY THESE BILLS OF LADING HAD BEEN LOADED INTO TWO TRAILERS AND EACH OF THE TRAILERS HAD BEEN SEALED BY THE SHIPPER.

IN THESE CIRCUMSTANCES, IT WAS CONCLUDED THAT TWO "CONFLICTING" INTENTIONS HAD BEEN INDICATED BY THE SHIPPER, ONE SHOWN BY THE CROSS REFERENCING OF THE BILLS OF LADING AND ONE SHOWN BY THE SEALING OF THE VEHICLES. THE INFORMAL OPINION STATES:

"THE PROBLEM THUS TO BE RESOLVED TURNS UPON THE WEIGHT TO BE GIVEN EACH OF THE 'CONFLICTING' INTENTS. IF THE SHIPPER DESIRED THE MOVEMENT TO BE A SINGLE SHIPMENT THEN A CLEAR AND UNEQUIVOCAL CROSS REFERENCING OF THE BILLS OF LADING SHOULD HAVE BEEN ACCOMPLISHED, AND THE SEALING OF THE VEHICLES OMITTED. IN OTHER WORDS, THERE WOULD NOT HAVE BEEN ANY NECESSITY FOR THE SEALING OF THE TRAILERS. THE EFFECT OF THE SEALING OF THE VEHICLES, HOWEVER, MUST BE GIVEN CONSIDERATION. SINCE IT HAS NOT BEEN SHOWN THAT IT WAS NECESSARY TO SEAL THE VEHICLES, IT FOLLOWS THAT THE ACT OF SEALING THE VEHICLES CONSTITUTED A MANIFEST INTENT THAT THE ARTICLES BE TRANSPORTED AS TWO SEPARATE AND DISTINCT MOVEMENTS. THE SEALING OF THE VEHICLES, WITHOUT ANY APPARENT NECESSITY THEREFOR, CLEARLY JUSTIFIES A CONCLUSION THAT THE CONSIDERED REPRESENTATIVE TRANSPORTATION WAS TENDERED AND RECEIVED AS TWO SEPARATE AND DISTINCT MOVEMENTS AND THAT EACH OF THE VEHICLES WOULD BE SUBJECT TO THE 30,000 POUND MINIMUM WEIGHT."

IT WILL BE SEEN THAT THE COMMISSION'S INFORMAL CONCLUSION RESTED UPON TWO SALIENT CONSIDERATIONS: (1) THE CROSS REFERENCING OF THE BILLS OF LADING WAS DEEMED TO BE NOT CLEAR AND UNEQUIVOCAL, AND (2) THE SEALING OF THE VEHICLES WAS DEEMED TO BE INDICATIVE THAT THE TRANSPORTATION WAS TENDERED AND RECEIVED AS TWO SEPARATE AND DISTINCT MOVEMENTS.

IN THE INSTANT CASE, THE BILLS OF LADING WERE CROSS-REFERENCED TO OTHER BILLS OF LADING USING THE PHRASE "THIS SHIPMENT MOVING IN CONJUNCTION WITH" AND YOU EQUATE THIS LANGUAGE WITH THE PHRASE "THIS SHIPMENT IS IN CONNECTION WITH," WHICH WAS USED IN THE CASE CONSIDERED IN THE COMMISSION'S INFORMAL OPINION. BUT THE BILLS OF LADING IN THE INSTANT CASE ALSO CONTAINED OTHER NOTATIONS, SUCH AS "2ND AND PARTIAL," "3RD AND PARTIAL," "2ND AND FINAL," AND "4TH & PARTIAL," THUS INDICATING THAT THE MATERIAL COVERED BY EACH BILL OF LADING WAS PART OF A LARGER VOLUME SHIPMENT.

FURTHERMORE, THE VEHICLES USED FOR THE SUBJECT TRANSPORTATION WERE NOT SEALED BY THE SHIPPER AS WAS THE CASE IN THE FACTUAL SITUATION CONSIDERED IN THE COMMISSION'S INFORMAL OPINION. SINCE THE TWO FACTORS UPON WHICH THE COMMISSION BASED ITS INFORMAL OPINION ARE ABSENT IN THE PRESENT CASE, WE FAIL TO SEE HOW THE OPINION CAN BE CONSIDERED AS A PRECEDENT FOR SETTLEMENT OF THIS CASE.

IN OUR OPINION, THE BILL OF LADING CROSS-REFERENCES HERE WERE CLEAR AND UNEQUIVOCAL INDICATIONS THAT EACH BILL OF LADING LOT WAS PART OF A LARGER VOLUME TENDER AND JUSTIFIED THE APPLICATION OF THE VOLUME RATE. ACCORDINGLY, THE SETTLEMENTS IN QUESTION ARE SUSTAINED AND YOUR RECLAIMS ARE DENIED.