B-171366, APR 8, 1971

B-171366: Apr 8, 1971

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CLAIMS BASED ON A RATE OF $1.73 PER 100 POUNDS PURSUANT TO TENDER NO. 48 ARE NOT VALID SINCE THIS TENDER WAS SUPERSEDED BY NO. 51 AND 52 WHICH DID NOT AUTHORIZE ANY SURCHARGE. CLAIMS FOR TRANSPORTATION CHARGES FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21. TWO OF THE SHIPMENTS LISTED IN YOUR LETTER ARE THOSE MOVING ON GOVERNMENT BILLS OF LADING C-1196880 AND C-1196750. THOSE MOVEMENTS WERE THE SUBJECT OF OUR DECISION B-162278. THE AMOUNT OF $17.30 LISTED IN YOUR LETTER AS BEING DUE ON EACH WERE DEDUCTED PURSUANT TO THE EXPLANATION CONTAINED IN THE LAST TWO PARAGRAPHS OF THE FORMER DECISION. WHEREAS THE CHARGES WERE PROPERLY COMPUTABLE ON THE BASIS OF THE 20. THE DEDUCTION OF $17.30 ON EACH OF THE TWO SHIPMENTS WAS THEREFORE CORRECT.

B-171366, APR 8, 1971

TRANSPORTATION CHARGES - SURCHARGE DENYING CLAIM OF PAN AMERICAN VAN LINES, INC., FOR ADDITIONAL TRANSPORTATION CHARGES SAID TO BE DUE ON 11 SHIPMENTS OF OFFICE FURNITURE MOVED FROM FORT JAY, GOVERNOR'S ISLAND, N. Y., TO FORT MEADE, MARYLAND. CLAIMS BASED ON A RATE OF $1.73 PER 100 POUNDS PURSUANT TO TENDER NO. 48 ARE NOT VALID SINCE THIS TENDER WAS SUPERSEDED BY NO. 51 AND 52 WHICH DID NOT AUTHORIZE ANY SURCHARGE.

TO MR FRANCIS X. MCKENNA:

SUBJECT: PAN AMERICAN VAN LINES, INC., CLAIMS FOR TRANSPORTATION CHARGES

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21, 1970, IN WHICH YOU REQUESTED A REVIEW OF THE SETTLEMENTS DISALLOWING 13 CLAIMS FOR ADDITIONAL TRANSPORTATION CHARGES SAID TO BE DUE ON 13 SHIPMENTS OF OFFICE TYPE FURNITURE THAT MOVED FROM FORT JAY, GOVERNOR'S ISLAND, NEW YORK, IN 1965 AND 1966.

TWO OF THE SHIPMENTS LISTED IN YOUR LETTER ARE THOSE MOVING ON GOVERNMENT BILLS OF LADING C-1196880 AND C-1196750. THOSE MOVEMENTS WERE THE SUBJECT OF OUR DECISION B-162278, JULY 23, 1968, AFFIRMED IN B 162278, OCTOBER 5, 1970. THE AMOUNT OF $17.30 LISTED IN YOUR LETTER AS BEING DUE ON EACH WERE DEDUCTED PURSUANT TO THE EXPLANATION CONTAINED IN THE LAST TWO PARAGRAPHS OF THE FORMER DECISION. IN SHORT, YOUR COMPANY HAD ORIGINALLY ASSESSED CHARGES ON THE TWO SHIPMENTS AT A 21,000-POUND MINIMUM TRUCKLOAD WEIGHT, WHEREAS THE CHARGES WERE PROPERLY COMPUTABLE ON THE BASIS OF THE 20,000-POUND MINIMUM SPECIFICALLY PROVIDED IN THE APPLICABLE TENDER, PAN AMERICAN VAN LINES, INC., I.C.C. NO. 48. THE DEDUCTION OF $17.30 ON EACH OF THE TWO SHIPMENTS WAS THEREFORE CORRECT; AND AS TO THOSE TWO SHIPMENTS THE DECISION IN LAST TWO PARAGRAPHS OF DECISION B-162278, JULY 23, 1968, UNDER WHICH SUCH DEDUCTIONS WERE MADE, IS HEREBY REAFFIRMED.

IN YOUR REQUEST FOR REVIEW, YOU SAY THAT THE ADDITIONAL CHARGES NOW CLAIMED DO NOT INCLUDE "ACCESSORIAL AND LABOR CHARGES, SINCE SUCH AMOUNTS ARE NOT IN CONTROVERSY." YOUR CLAIMS ARE NOW BASED ON A RATE OF $1.73 PER 100 POUNDS, SUBJECT TO A MINIMUM WEIGHT OF 20,000 POUNDS, AS SET FORTH IN TENDER NO. 48.

THE RECORD SHOWS THAT THE REMAINING 11 SHIPMENTS OF OFFICE FURNITURE, OFFICE EQUIPMENT AND QUARTERS TYPE FURNITURE MOVED VIA MOTOR VEHICLE FROM FORT JAY, GOVENOR'S ISLAND, NEW YORK TO FORT GEORGE G. MEADE, MARYLAND, DURING THE MONTHS OF JANUARY, FEBRUARY, MARCH, APRIL AND MAY 1966. YOUR COMPANY BILLED AND WAS PAID BY THE DEPARTMENT OF THE ARMY AS INDICATED BELOW:

CARRIER'S DATE OF CLAIM AMOUNT

BILL NO. GBL NO. SHIPMENT NUMBER WEIGHT PAID

32142/227 C-1197583 4/4/66 TK-864177 11,300# $525.70

32191/249 C-1197606 4/13/66 TK-864178 12,400# 466.20

34827/133 C-1197294 1/26/66 TK-864197 8,260#479.00

34817/129 C-1197278 1/22/66 TK-86419610,920# 450.00

34912/154 C-1197394 2/11/66 TK-864198 10,400# 415.20

32006/188 C-1197491 3/4/66 TK-864174 7,860# 481.20

32038/203 C-1197513 3/14/66 TK-864175 8,140# 580.20

32224/256 C-1197615 4/18/66 TK-864179 5,580# 496.20

34963/184 C-1197490 3/3/66 TK-864199 8,860# 466.20

32123/224 C-1197573 3/30/66 TK-864176 10,220# 516.20

32392/293 C-1197670 5/13/66 TK-864180 10,840# 484.20

EACH BILL OF LADING BEARS THE REFERENCE "ICC 51, EFF 1/10/66" AND TEN OF THE RELATED VOUCHER FACE SHEETS ARE ANNOTATED "MRT #1-T." THE CHARGES ON BILLS OF LADING C-1197278 AND C-1197294 WERE COMPUTED BY THE USE OF A RATE OF $1.60 PER 100 POUNDS PLUS AN ADDITIONAL TRANSPORTATION CHARGE (SURCHARGE AT ORIGIN) OF 30 CENTS PER 100 POUNDS SUBJECT TO 17,000 POUNDS PER TRUCKLOAD MINIMUM. IN ADDITION, ACCESSORIAL CHARGES TOTALING $127 AND $156, REPRESENTING LABOR LOADING CHARGES AT ORIGIN WERE ASSESSED ON BILLS OF LADING C-1197278 AND C-1197294 RESPECTIVELY. CHARGES ON THE REMAINING NINE BILLS OF LADING WERE COMPUTED BY THE USE OF A RATE OF $1.56 PER 100 POUNDS, PLUS AN ADDITIONAL TRANSPORTATION CHARGE (SURCHARGE AT ORIGIN) OF 30 CENTS PER 100 POUNDS SUBJECT TO 17,000 POUNDS PER TRUCKLOAD MINIMUM AND ACCESSORIAL CHARGES REPRESENTING LOADING CHARGES AND PACKING MATERIALS USED AT ORIGIN AND ASSESSED AS FOLLOWS:

GBL AMOUNT

C-1197583 (TK-864177) $209.50

C-1197606 (TK-864178) 150.00

C-1197394 (TK-864198) 99.00

C-1197491 (TK-864174) 165.00

C-1197513 (TK-864175) 264.00

C-1197615 (TK-864179) 180.00

C-1197490 (TK-864199) 150.00

C-1197573 (TK-864176) 200.00

C-1197670 (TK-864180) 168.00

IN OUR AUDIT THE RATE OF $1.60 PER 100 POUNDS ON A MINIMUM WEIGHT OF 17,000 POUNDS PER TRUCK WITHOUT ALLOWANCE OF THE ADDITIONAL 30 CENTS PER 100 POUNDS WAS APPLIED TO BILL OF LADING C-1997278 RESULTING IN AN OVERCHARGE OF $51; AND THE RATE OF $1.56 PER 100 POUNDS SUBJECT TO A MINIMUM WEIGHT OF 17,000 POUNDS PER TRUCK WITHOUT ALLOWANCE OF THE ADDITIONAL 30 CENTS PER 100 POUNDS, PLUS ACCESSORIAL CHARGES, WAS APPLIED TO THE REMAINING 10 BILLS OF LADING, RESULTING IN OVERCHARGES OF $57.80 ON BILL OF LADING C-1197294 AND $51 EACH ON NINE SHIPMENTS OR A TOTAL OF $516.80. THE RATE OF $1.60 IS PROVIDED IN PAN AMERICAN VAN LINES TENDER I.C.C. NO. 51, WHICH APPEARS TO HAVE BEEN ISSUED JANUARY 7, 1966, WITH AN EFFECTIVE DATE OF JANUARY 10, 1966, AND THE RATE OF $1.56 IS PROVIDED IN PAN AMERICAN TENDER I.C.C. NO. 52, EFFECTIVE JANUARY 24, 1966.

WHEN YOUR COMPANY FAILED TO MAKE REFUND AS REQUESTED, THE OVER CHARGES WERE COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE PAYABLE ON YOUR BILLS 46790/184, DATED JULY 3, 1967, AND 67-10145, DATED JULY 19, 1967. YOUR SUBSEQUENT RECLAIM VOUCHERS TO RECOVER THE AMOUNTS DEDUCTED WERE DISALLOWED BY SETTLEMENT CERTIFICATES DATED SEPTEMBER 11, 12 AND 13, 1968, FOR THE FOLLOWING REASONS:

"TENDER ICC NO. 51 (OR TENDER ICC NO. 52) IS A SELF CONTAINED POINT TO POINT TENDER AND THE FACTORS FOR COMPUTING THE BASIC TRANSPORTATION CHARGES ARE THOSE FOUND WITHIN THE DOCUMENT ITSELF. A SHIPMENT MADE THEREUNDER IS NOT SUBJECT TO AN ADDITIONAL CHARGE EXCEPT FOR ACCESSORIAL SERVICES WHEN SO ORDERED BY THE SHIPPER.

"THE ISSUE HERE IS SIMILAR TO THAT CONSIDERED IN DECISION OF JUNE 23, 1968, B-162278 ADDRESSED TO YOUR COMPANY AND THERE APPEARS TO BE NO REASON WHY THE CONCLUSION REACHED THEREIN IS NOT EQUALLY FOR APPLICATION IN THIS CASE."

AS ABOVE INDICATED, YOUR REQUEST FOR REVIEW OF THE SETTLEMENTS IS BASED ON THE APPLICATION OF THE RATE OF $1.73 PER 100 POUNDS AND MINIMUM WEIGHT OF 20,000 POUNDS PER TRUCKLOAD PROVIDED IN PAN AMERICAN TENDER ICC NO. 48, EFFECTIVE NOVEMBER 29, 1965. HOWEVER, TENDER NO. 48 WAS CANCELLED BY TENDER NO. 51, A NON-NEGOTIATED QUOTATION, EFFECTIVE JANUARY 10, 1966, AND TENDER NO. 51 WAS SUBSEQUENTLY CANCELLED BY TENDER NO. 52, EFFECTIVE JANUARY 24, 1966. TENDERS NO. 51 AND 52 DO NOT SPECIFICALLY AUTHORIZE ANY SURCHARGE. SINCE THE 11 SHIPMENTS MOVED AFTER THE CANCELLATION OF TENDER NO. 48, THE $1.73 RATE PROVIDED THEREIN WOULD NO LONGER HAVE BEEN IN EFFECT, AND RECOVERY ON THAT BASIS CLEARLY IS NOT ALLOWABLE.

ACCORDINGLY, WE ARE OF THE VIEW THAT THE SETTLEMENTS PERTAINING TO THE 11 SHIPMENTS ABOVE LISTED HAVE NOT BEEN SHOWN TO BE INCORRECT, AND THEY ARE THEREFORE SUSTAINED.