B-173019, OCT 14, 1971, 51 COMP GEN 208

B-173019: Oct 14, 1971

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DETERMINED BY MULTIPLYING 7 POUNDS PER CUBIC FOOT BY THE CUBIC CAPACITY OF AN EXCLUSIVELY USED 40-FOOT VAN - EVEN THOUGH THE VAN WAS THE ONLY SIZE AVAILABLE TO THE CARRIER AND WAS NOT FILLED TO CAPACITY. OR THAT EXCLUSIVE USE HAD NOT BEEN REQUESTED - AND TO UNREQUESTED SPECIALIZED HANDLING CHARGES WILL BE RECONSIDERED. THE EXCEPTIONS THAT WERE BASED ON APPLYING THE SLIDING SCALE OF VOLUME MINIMUM WEIGHTS AND TABLE OF RATES CONTAINED IN THE TENDER. WILL BE REMOVED IF IT CAN BE SHOWN SEALS HAD BEEN ATTACHED TO THE VEHICLE BY THE SHIPPER. THE EXCEPTIONS TO THE ACCESSORIAL CHARGES WILL BE ALLOWED UPON PROOF OF AUTHENTICITY. TRANS-WORLD WAS PAID FOR TRANSPORTATION AND RELATED SERVICES PRIOR TO AUDIT.

B-173019, OCT 14, 1971, 51 COMP GEN 208

TRANSPORTATION - RATES - EXCLUSIVE USE OF VEHICLE - APPLICABILITY - BASIS FOR DETERMINATION ON SHIPMENTS OF ELECTRONIC AND OTHER EQUIPMENT, THE EXCEPTIONS TAKEN TO LINE-HAUL CHARGES DERIVED FROM A SECTION 22 TENDER (49 U.S.C. 22 AND 317(B)), COMPUTED ON THE BASIS OF CONSTRUCTIVE WEIGHT, DETERMINED BY MULTIPLYING 7 POUNDS PER CUBIC FOOT BY THE CUBIC CAPACITY OF AN EXCLUSIVELY USED 40-FOOT VAN - EVEN THOUGH THE VAN WAS THE ONLY SIZE AVAILABLE TO THE CARRIER AND WAS NOT FILLED TO CAPACITY, OR THAT EXCLUSIVE USE HAD NOT BEEN REQUESTED - AND TO UNREQUESTED SPECIALIZED HANDLING CHARGES WILL BE RECONSIDERED. THE EXCEPTIONS THAT WERE BASED ON APPLYING THE SLIDING SCALE OF VOLUME MINIMUM WEIGHTS AND TABLE OF RATES CONTAINED IN THE TENDER, WILL BE REMOVED IF IT CAN BE SHOWN SEALS HAD BEEN ATTACHED TO THE VEHICLE BY THE SHIPPER, OR EXCLUSIVE USE OF THE VEHICLE HAD BEEN ORDERED AND FURNISHED, AND THE EXCEPTIONS TO THE ACCESSORIAL CHARGES WILL BE ALLOWED UPON PROOF OF AUTHENTICITY.

TO THE TRANS-WORLD MOVERS, INC., OCTOBER 14, 1971:

WE REFER TO YOUR ATTORNEY'S LETTER OF JULY 28, 1971, CONCERNING THE INDEBTEDNESS OF TRANS-WORLD MOVERS, INC. (TRANS-WORLD), FORMERLY COWBOY VAN LINES, INC. (COWBOY).

TRANS-WORLD WAS PAID FOR TRANSPORTATION AND RELATED SERVICES PRIOR TO AUDIT, AS REQUIRED BY SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, IN CONNECTION WITH VARIOUS SHIPMENTS OF ELECTRONIC AND OTHER EQUIPMENT. LINE-HAUL TRANSPORTATION CHARGES WERE DERIVED FROM SECTION 22 TENDERS (49 U.S.C. 22 AND 317(B)) WHICH WERE PUBLISHED BY TRANS WORLD, COWBOY AND OTHER ELECTRONIC EQUIPMENT CARRIERS. THE TECHNICAL CORRECTNESS OF TARIFF CHARGES FOR EXTRA SERVICES (REFERRED TO ON VOUCHERS AS ACCESSORIAL SERVICES) IS NOT IN ISSUE, BUT THE PERFORMANCE OF SERVICES LISTED ON DD FORMS 619, SUCH AS LOADING AND UNLOADING, IS DISPUTED.

TRANSPORTATION CHARGES WERE COMPUTED BY THE CARRIER ON THE BASIS OF CONSTRUCTIVE WEIGHT, GENERALLY, 22,400 POUNDS, DETERMINED BY MULTIPLYING 7 POUNDS PER CUBIC FOOT BY 3,200 CUBIC FEET - THE REPORTED CUBIC CAPACITY OF A 40-FOOT VAN, WHICH WAS APPARENTLY FURNISHED IN EACH INSTANCE. THE NOTE AND MINIMUM CHARGE PROVISIONS OF THE TENDERS CONTAIN THE LANGUAGE UPON WHICH THE CHARGES ARE BASED. THE FOLLOWING, EXTRACTED FROM APPENDIX NO. 1 OF COWBOY'S I.C.C. RATE TENDER 69-4, IS REPRESENTATIVE OF THE PROVISIONS INVOLVED:

NOTE: WHEN SPECIAL SERVICE IS REQUESTED, CHARGES WILL BE BASED ON ACTUAL WEIGHT OR SEVEN POUNDS PER CUBIC FOOT OF THE VAN USED, WHICHEVER IS GREATER.

SPECIAL SERVICE IS REQUESTED FOR SHIPMENT WHICH CONSIST OF OR INCLUDE SIMULATORS, ELECTRONIC INSTRUMENTS AND ALL EQUIPMENT REQUIRING SPECIALIZED HANDLING MOVABLE UNDER THE HOUSEHOLD GOODS COMMODITY DESCRIPTIONS.

WHEN SEALS ARE APPLIED TO THE VAN BY THE SHIPPER OR SHIPPERS AGENT, CHARGES WILL BE BASED ON ACTUAL WEIGHT SUBJECT TO A MINIMUM WEIGHT BASED ON SEVEN POUNDS PER FOOT OF TOTAL VEHICLE SPACE.

IF THE SHIPPER OR SHIPPERS AGENTS FAILS TO ANNOTATE THE GOVERNMENT BILL OF LADING AS TO SIZE OF VEHICLE REQUESTED, CUBIC FOOTAGE CAPACITY, CHARGES WILL BE BASED ON SEVEN POUNDS PER CUBIC FOOT OF VAN FURNISHED FOR EACH SHIPMENT.

MINIMUM CHARGE: SUBJECT TO AVAILABILITY OF EQUIPMENT FOR EXCLUSIVE USE OF A VEHICLE WHEN REQUESTED WILL BE ON ACTUAL WEIGHT SUBJECT TO A MINIMUM CHARGE OF 12,000 POUNDS IF THE CAPACITY OF THE VEHICLE ORDERED IS LESS THAN 1700 CUBIC FEET.

APPENDIX III OF THIS TENDER CONSISTS OF FIVE COLUMNS OF RATES (EXPRESSED IN CENTS PER 100 POUNDS) WHICH ARE TIED TO VARYING MILEAGE BLOCKS'. THESE COLUMNS (A, B, C, D, AND E) CONSTITUTE A SLIDING SCALE OF VOLUME MINIMUM WEIGHTS OF 8,000, 10,000, 12,000, 15,000 AND 20,000 POUNDS AND OVER, RESPECTIVELY. SEE ITEM 12 OF THE TENDER, SHOWING THE APPLICABILITY OF THE SLIDING SCALE OF VOLUME MINIMUM WEIGHTS. OUR TRANSPORTATION DIVISION ISSUED NOTICES OF OVERCHARGE (FORM 1003), REQUESTING REFUNDS, GENERALLY, OF AMOUNTS IN EXCESS OF CHARGES BASED ON THE SLIDING SCALE OF MINIMUM WEIGHTS, ON THE PREMISE THAT CHARGES FOR SPECIAL SERVICE OR EXCLUSIVE USE COULD NOT BE ASSESSED IN THE ABSENCE OF SOME REQUEST BY THE SHIPPER FOR SUCH SERVICE.

WHILE YOUR ATTORNEY'S LETTER OF JULY 8, 1971, LIMITS DISCUSSION OF OUR AUDIT ACTION TO THE CIRCUMSTANCES SURROUNDING A SINGLE SHIPMENT, CONSIDERATION OF THE ENTIRE ACCOUNT REVEALS A CURRENT INDEBTEDNESS TO THE UNITED STATES OF APPROXIMATELY $114,000, COMPRISING OVERCHARGES MADE IN THE PAYMENT OF OVER 200 BILLS FOR TRANSPORTATION SERVICES.

THE DISAGREEMENT IN THIS CASE CONCERNS AT LEAST TWO QUESTIONS: (1) A QUESTION AS TO THE MEANING AND INTERPRETATION OF COWBOY VAN LINES TENDERS NO. 69-4 THROUGH 69-7, AND (2) A QUESTION AS TO THE CORRECTNESS OF THE DD FORMS NO. 619 ISSUED BY THE CARRIER AND USED IN SUPPORT OF CHARGES FOR LOADING OR UNLOADING SERVICES OR IN SUPPORT OF A CLAIM FOR OTHER SPECIAL SERVICES.

APPENDIX NO. 1 OF TENDER 69-4 (TENDERS 69-5 THROUGH 69-7 CONTAIN THE SAME PROVISIONS) STATES THAT IT APPLIES ON SHIPMENTS CONSISTING OF ARTICLES WHICH BECAUSE OF THEIR UNUSUAL NATURE REQUIRE SPECIALIZED HANDLING AND EQUIPMENT USUALLY EMPLOYED IN MOVING HOUSEHOLD GOODS. IN OTHER WORDS, THE SERVICE TO BE FURNISHED IS SIMILAR TO THAT ACCORDED SHIPMENTS OF UNPACKED OR UNCRATED HOUSEHOLD GOODS IN EQUIPMENT DESIGNED ESPECIALLY FOR SUCH SERVICE. WHILE THE TENDER INDICATES THE ARTICLES TO BE COVERED REQUIRE "SPECIALIZED HANDLING," NOWHERE IN THIS TENDER IS THERE A DEFINITION OF EXPLANATION AS TO WHAT SERVICE IS TO BE INCLUDED IN "SPECIALIZED HANDLING." SINCE THE SERVICE GENERALLY FURNISHED BY THE SO-CALLED "ELECTRONICS CARRIERS," SUCH AS COWBOY VAN LINES, INC., IS APPARENTLY HOUSEHOLD GOODS SERVICE FOR CERTAIN ELECTRONIC EQUIPMENT OR OFFICE FURNITURE AND OTHER ITEMS NAMED IN THE FIRST PARAGRAPH, IT SEEMS THE TERM "SPECIALIZED SERVICE" HAS NO OTHER MEANING THAN THAT RELATIVE TO THE ORDINARY MOVEMENT OF THE NAMED COMMODITIES IN HOUSEHOLD GOODS VANS.

AS INDICATED ABOVE, THE PROVISION, BEGINNING WITH THE TERM "NOTE," STATES THAT WHEN SPECIAL SERVICE IS REQUESTED, CHARGES WILL BE BASED ON "ACTUAL WEIGHT OF SEVEN POUNDS PER CUBIC FOOT OF THE VAN USED, WHICHEVER IS GREATER." THE CLAUSE "ACTUAL WEIGHT OF SEVEN POUNDS" WAS SUBSEQUENTLY AMENDED TO READ: "ACTUAL WEIGHT OR SEVEN POUNDS;" HOWEVER, AGAIN THERE IS NO EXPLANATION AS TO THE KIND OF SERVICE EMBRACED BY THE TERM "SPECIAL SERVICE."

THE NEXT PARAGRAPH IN APPENDIX NO. 1 PROVIDES THAT SPECIAL SERVICE IS REQUESTED FOR SHIPMENTS WHICH CONSIST OF OR INCLUDE THE EQUIPMENT NAMED IN THAT PARAGRAPH. WE FIND NOTHING IN THE TENDER TO EXPLAIN WHAT IS MEANT BY "SPECIAL SERVICE IS REQUESTED." THIS PROVISION WAS CARRIED IN COWBOY VAN LINES TENDER 69-4 AND REISSUES THEREOF UNTIL TRANS-WORLD MOVERS TENDER ICC -71-11, WAS ISSUED EFFECTIVE FEBRUARY 16, 1971. PERHAPS THE PHRASE WAS MEANT TO SIGNIFY THAT SPECIAL SERVICES (UNDEFINED) MAY BE REQUESTED FOR TRANSPORTATION OF THE COMMODITIES NAMED, BUT, AS THE PROVISION APPLICABLE AT THE TIME OF THE DISPUTED SHIPMENTS READS, IT IS PATENTLY AMBIGUOUS, AND MUST BE CONSTRUED MOST STRONGLY AGAINST ITS FRAMER.

WE NOTE THAT IF A TRANSPORTATION OFFICER DESIRES CERTAIN SPECIFIC VEHICLE SERVICE NAMED IN PARAGRAPH (E) OF MOVERS & WAREHOUSEMEN'S ASSOCIATION OF AMERICA GOVERNMENT RATE TENDERS I.C.C. NO. 1-U AND NO. 1 V (REFERRED TO IN TENDER 69-4 AND SUPERSEDING TENDERS), THE GOVERNMENT BILL OF LADING MUST BE ANNOTATED TO SHOW THAT SUCH SERVICE IS REQUESTED. ALL REQUESTS, SUCH AS FOR EXCLUSIVE USE OR OTHER SERVICES NAMED IN PARAGRAPH (E) OF TENDERS NO. 1-U AND 1-V, MUST BE ENTERED ON THE BILLS OF LADING BY THE ISSUING TRANSPORTATION OFFICER. SEE PARAGRAPH NO. 214046, PAGE 214-17 OF DEFENSE SUPPLY REGULATIONS NO. 4500.3, EFFECTIVE MARCH 15, 1969. THESE REGULATIONS HAVE THE FORCE OF LAW. PUBLIC UTILITIES OF CALIFORNIA V UNITED STATES, 355 U.S. 534, 542 (1958).

WE AGREE THAT WITH RESPECT TO THE SENTENCE IN THE PROVISION INTRODUCED BY THE TERM "NOTE," REFERRING TO THE APPLICATION OF SEALS BY THE SHIPPER TO THE VEHICLE, IT IS CLEAR THAT IN SUCH INSTANCES THE CARRIER IS ENTITLED TO COMPENSATION AT THE ACTUAL WEIGHT OR 7 POUNDS PER CUBIC FOOT OF TOTAL VEHICLE SPACE, WHICHEVER IS GREATER.

THE NEXT SENTENCE OF THE PROVISION IS NOT SUSCEPTIBLE OF A CONCLUSIVE INTERPRETATION; IT STATES THAT IF THE SHIPPER OR SHIPPER'S AGENT FAILS TO ANNOTATE THE GOVERNMENT BILL OF LADING "AS TO SIZE OF VEHICLE REQUESTED, CUBIC FOOTAGE CAPACITY," CHARGES WILL BE MADE ON THE BASIS OF 7 POUNDS PER CUBIC FOOT.

GENERALLY, WHEN A SHIPPER DESIRES TO ENGAGE THE SERVICES OF A CARRIER, HE MUST NECESSARILY CONTACT THE CARRIER AND REQUEST THE PLACING OF A VEHICLE FOR LOADING. WE HAVE NOTED IN THE AUDIT OF THE PRESENT ACCOUNTS THAT IN ALMOST EVERY INSTANCE COWBOY VAN LINES SEEMS TO HAVE TREATED SUCH AN ORDER FOR A VAN AS COMING WITHIN THE SCOPE OF THE ITEM FOR EXCLUSIVE USE OF VEHICLE SERVICE. FURTHERMORE, AGENTS OF COWBOY REPORTEDLY FILLED IN THE SPACES ON THE TOP OF THE BILL OF LADING AS TO THE CUBIC-FOOT CAPACITY OF THE VEHICLES ORDERED AND FURNISHED. A CARRIER MAY NOT INDEPENDENTLY MAKE BINDING, UNAUTHORIZED ADDITIONS OR DELETIONS ON A GOVERNMENT BILL OF LADING, PARTICULARLY WHERE ACCESSORIAL OR SPECIAL SERVICES ARE ORDERED BY GOVERNMENT REPRESENTATIVES. SEE PARAGRAPH 2 OF THE ADMINISTRATIVE DIRECTION ON THE REVERSE SIDE OF THE BILL OF LADING.

IN A LETTER TO OUR TRANSPORTATION DIVISION DATED JANUARY 27, 1971, MR. WALTER R. PLANKINTON, PRESIDENT OF TRANS-WORLD MOVERS, INC., STATED THAT THE COMPANY UTILIZES ONLY 40-FOOT TRAILERS OF 3,200 CUBIC FEET FOR THESE ELECTRONICS MOVEMENTS. THUS TRANS-WORLD WOULD ASSUME THAT ANY SHIPPER'S ORDER TO PLACE A VEHICLE FOR LOADING MEANS AN ORDER FOR A 40 FOOT VEHICLE AND THAT A BILL OF LADING AS ISSUED BY A GOVERNMENT OFFICER MAY BE ALTERED TO INCLUDE NOTATIONS RESULTING IN A SITUATION WHICH ENTAILS CONSIDERATION OF AMBIGUOUS PROVISIONS OF AN APPLICABLE TENDER. WE NOTE THAT THE AMBIGUOUS PROVISION IS NOT CONTAINED IN THE CURRENT TRANS-WORLD TENDER ICC71-1.

AS STATED ABOVE, TENDER 69-4 AND SUPERSEDING ISSUES CONTAIN FIVE SCALES OF VOLUME MINIMUM WEIGHTS AND TABLES OF RATES. OBVIOUSLY, THESE SCALES OF RATES AND MINIMUM WEIGHTS ARE INCLUDED FOR THE PURPOSE OF COMPUTING THE CHARGES TO BE ASSESSED ON SHIPMENTS OF ELECTRONIC EQUIPMENT TENDERED TO IT FOR TRANSPORTATION. HOWEVER, THE EFFECT OF THE CONSTRUCTION OF THE AMBIGUOUS PROVISION IN QUESTION THAT TRANS WORLD SEEKS TO SUSTAIN WOULD NULLIFY THE APPLICATION OF THE FIVE RATE SCALES IN THE TENDER. FOR EXAMPLE, IN ALMOST EVERY CASE, A VEHICLE FULLY LOADED HAS BEEN TREATED AS ONE SUBJECT TO EXCLUSIVE USE REQUIREMENTS AND THE 7 CUBIC FOOT BASIS HAS BEEN APPLIED, ALTHOUGH THERE IS NOTHING ON THE BILL OF LADING PLACED THERE BY OR WITH THE ACQUIESCENCE OF GOVERNMENT REPRESENTATIVES TO SHOW THAT EXCLUSIVE USE WAS EITHER DESIRED OR REQUESTED.

THE CARRIER OR ITS AGENT SEEMS TO HAVE FREQUENTLY ADDED INFORMATION TO THE BILL OF LADING, WHICH UPON INVESTIGATION PROVED NOT TO HAVE BEEN AUTHORIZED BY ANY RESPONSIBLE GOVERNMENT PERSONNEL. THE BILL OF LADING (E -9,584,878) AND ACCOMPANYING RECORD ENCLOSED WITH THE LETTER OF JULY 28, 1971, CLEARLY ILLUSTRATES THE NATURE OF THESE ADDITIONS. THE ORIGINAL BILL OF LADING SHOWS THAT THE TRANSPORTATION OFFICER INSERTED INFORMATION IN THE APPROPRIATE SPACES TO INDICATE THAT A 40-FOOT VEHICLE WAS ORDERED AND FURNISHED. WHEN THE BILL OF LADING WAS PREPARED FOR BILLING, IT APPEARS THAT THE CARRIER INSERTED INFORMATION AS TO THE 3,200 CUBIC FEET. THE SPACE RESERVED FOR A SHOWING OF WHETHER THE SHIPMENT FULLY LOADS THE VEHICLE IS CHECKED "YES," WITH AN UNIDENTIFIABLE INITIAL OR INITIALS PLACED JUST ABOVE IT.

THE COPY OF THE LETTER FROM THE ADMINISTRATIVE OFFICE ATTACHED TO YOUR ATTORNEY'S LETTER OF JULY 28, 1971, AGREES THAT A 40-FOOT VEHICLE WAS ORDERED AND FURNISHED, WHICH IS THE ONLY SIZE VEHICLE THAT COULD HAVE BEEN REQUESTED, SINCE ONLY 40-FOOT VEHICLES ARE USED BY THE CARRIER. IT IS SHOWN FURTHER THAT THE SHIPMENT MEASURED 1,596 CUBIC FEET, SO, OBVIOUSLY, IT COULD NOT OCCUPY ALL THE USEABLE SPACE OF THE VEHICLE; WHOEVER CAUSED THE CHECK MARK TO BE PLACED ON THE BILL OF LADING TO SHOW THE VEHICLE WAS FULLY LOADED WAS NOT IN POSSESSION OF THE TRUE FACTS. IN THE CASE OF THIS EXAMPLE THE ADMINISTRATIVE OFFICE REPORTS THAT EXCLUSIVE USE OF THE VEHICLE WAS NOT REQUESTED.

THE SAME EXAMPLE CLEARLY DEMONSTRATES THE STRAINED AND ILLOGICAL INTERPRETATION BY THE CARRIER OF THE AMBIGUOUS TERMS OF COWBOY VAN LINES TENDERS 69-4 THROUGH 69-7 IN THAT FREIGHT CHARGES ON THE SHIPMENT REMAIN AT $497.28 UNDER VARIOUS CONDITIONS. IF THE VEHICLE WERE FULLY LOADED WITH FREIGHT WEIGHING LESS THAN 22,400 POUNDS (7 POUNDS TIMES 3,200 CUBIC FEET) THE CHARGE WOULD BE $497.28. IF THE SHIPPER REQUESTED EXCLUSIVE USE, THE CHARGE WOULD BE $497.28, AND IF, AS IN THE EXAMPLE, A VEHICLE OF THE ONLY SIZE AVAILABLE (40 FEET) WAS ORDERED FOR THE ACCOMMODATION OF A LESS TRUCKLOAD LOT, 1,596 CUBIC FEET, THE CHARGES WOULD ALSO BE $497.28, NOTWITHSTANDING THAT THERE WAS AN APPLICABLE CHARGE OF $293, AVAILABLE AT THE 10,000-POUND SCALE OF RATES NAMED IN THE TENDER.

SINCE THE ADMINISTRATIVE REPORT SHOWS THAT EXCLUSIVE USE WAS NOT ORDERED, WE CONSIDER THE ORDERING OF THE 40-FOOT VEHICLE AS BEING MERELY AN ORDER TO MAKE A VEHICLE AVAILABLE FOR LOADING, WITHOUT CREATING A BASIS FOR EXCLUSIVE USE CHARGES. WE THEREFORE SUSTAIN THE NOTICE OF OVERCHARGE (FORM 1003) ISSUED BY OUR TRANSPORTATION DIVISION, DATED NOVEMBER 18, 1970, WITH REFERENCE TO THE SHIPMENT DISCUSSED ABOVE.

WITH REGARD TO THE FIRST OF THE TWO QUESTIONS (INTERPRETATION OF THE TENDERSS WHICH WE SAY ARE INVOLVED IN THIS CASE, WE BELIEVE THAT THE 7 CUBIC FOOT BASIS SHOULD BE UPHELD IN ANY INSTANCE WHERE THE BILL OF LADING RECORD, OR SUBSEQUENT ADMINISTRATIVE ADVICE INDICATES THAT THE FULL USE OF A TRAILER WAS DESIRED BY THE SHIPPER. WE WILL CONSIDER FULL USE OF A TRAILER TO BE ESTABLISHED WHERE SEALS WERE APPLIED BY THE SHIPPER OR WHERE EXCLUSIVE USE WAS ACTUALLY REQUESTED AND FURNISHED. IT IS OUR VIEW, HOWEVER, THAT THE MERE REQUEST FOR A 40-FOOT VEHICLE FOR LOADING IS NOT A REQUEST FOR EXCLUSIVE USE, WHETHER OR NOT THE SHIPMENT FULLY LOADS THE VEHICLE. IN SUCH INSTANCES, OUR AUDIT WILL OBSERVE THE APPLICABLE SCALE OF RATES IN THE TENDER BASED ON THE WEIGHT LOADED. CONCERNING THE AUTHENTICITY OF THE VARIOUS DD FORMS 619 USED TO SUPPORT CHARGES FOR ACCESSORIAL SERVICES, AUTHORIZATION FOR THE USE OF THIS DOCUMENT IS SET FORTH IN PARAGRAPH 6010 ON PAGE 6-34 OF ARMY REGULATION NO. 55-356, DATED DECEMBER 1968. THIS IN SUBSTANCE PROVIDES THAT THE CARRIERS WILL USE THE FORM (DD 619) IN BILLING FOR MATERIALS AND SERVICES NOT INCLUDED IN THE LINE-HAUL TRANSPORTATION RATES. EACH FORM IS REQUIRED TO BE PREPARED IN FULL AND SIGNED BY THE CARRIER'S REPRESENTATIVE. THE FORM IS THEN PRESENTED TO AN AUTHORIZED REPRESENTATIVE OF THE TRANSPORTATION OFFICER ORDERING THE SERVICE, WHO WILL SIGN THE STATEMENT ATTESTING TO THE FACT THAT MATERIALS OR SERVICES WERE PROVIDED AS INDICATED BY THE CARRIER. OTHER WORDS, BEFORE A DD FORM 619 IS VALID FOR USE IN SUPPORT OF A BILL FOR MATERIALS AND SERVICES, IT MUST BE CONFIRMED BY A TRANSPORTATION OFFICER OR REPRESENTATIVE THAT (1) THE SERVICE WAS REQUESTED AND (2) THAT SUCH SERVICE WAS PERFORMED.

ORDINARILY, IN OUR AUDIT OF CARRIERS' ACCOUNTS COVERING THE MOVEMENT OF HOUSEHOLD GOODS THESE DD FORMS 619 ARE ACCEPTED WITHOUT FURTHER INVESTIGATION, WHERE SUCH FORMS ARE PROPERLY SIGNED BY THE SHIPPER OR A GOVERNMENT TRANSPORTATION OFFICER, AND WHERE THERE IS NOTHING TO SUGGEST THE NEED FOR FURTHER DEVELOPMENT. WE HAD NO PROBLEM IN CONNECTION WITH DD FORMS 619 IN THE EARLIER STAGES OF OUR AUDIT OF COWBOY VAN LINES BILLS COMPUTED ON THE BASIS OF THE CARRIER'S TENDERS; HOWEVER, INVESTIGATION OF A NUMBER OF ITEMS REVEALED DISCREPANCIES WHICH MADE IT NECESSARY TO DEVELOP THE RECORD ON MOST OF THE BILLS RECEIVED. THE MAJOR DIFFERENCES IN THE DD FORMS 619 AND THE REPORTS FROM ADMINISTRATIVE OFFICES RELATE TO THE LOADING AND UNLOADING CHARGES REPORTED, AND TO THE ANNOTATION THAT EXCLUSIVE USE WAS ORDERED BY THE SHIPPER. IN MOST INSTANCES THE ADMINISTRATIVE REPORTS CONTRADICT THE INFORMATION STATED ON THE DD FORMS 619.

WE REFER AGAIN TO GOVERNMENT BILL OF LADING E-9,584,878, DATED MAY 2, 1969, COVERING A SHIPMENT OF 38 DESKS, WEIGHING 9,880 POUNDS, MOVING FROM CANNON AIR FORCE BASE, NEW MEXICO, TO AURORA, COLORADO. THE RELATED DD FORM 619, WHICH, UNDER THE REGULATIONS IS ISSUED BY THE CARRIER, STATES THAT (1) EXCLUSIVE USE OF 3,200 CUBIC FOOT VAN ORDERED BY SHIPPER AND (2) IT TOOK THREE MEN 7 HOURS EACH TO LOAD AT $5.75 PER HOUR, OR $120.75, AND THREE MEN 6 HOURS EACH TO UNLOAD AT $5.75 PER HOUR, OR $103.50, FOR A TOTAL COST OF $224.25, AS BILLED BY COWBOY VAN LINES, IN ADDITION TO CHARGES BASED ON 22,400 POUNDS (3,200 CUBIC FEET AT 7 POUNDS PER CUBIC FOOT). THE COPY OF THE ADMINISTRATIVE REPORT WHICH YOU FURNISHED WITH YOUR LETTER SHOWS THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS NOT REQUESTED; THAT THE SHIPMENT DID NOT FULLY LOAD THE VEHICLE (THE ORIGINAL BILL OF LADING IS CHECKED "YES" TO INDICATE THAT THE SHIPMENT FULLY LOADED THE VEHICLE); THAT THE DRIVER ALONE LOADED THE SHIPMENT; AND THAT THE CONSIGNEE'S EMPLOYEES UNLOADED THE SHIPMENT.

MR. PLANKINTON'S LETTER OF JANUARY 27, 1971, REFERS TO COWBOY VAN LINES BILL NO. 030301, SUBMITTED MARCH 3, 1970 (OUR REFERENCE TK NO. 931755) AND SUPPORTED BY BILL OF LADING F-3,208,876, DATED FEBRUARY 18, 1970; IT COVERS A MOVEMENT OF FOUR SKIDS OF AIRCRAFT TRAINERS WEIGHING 8,800 POUNDS, MOVING FROM ARMY DEPOT, GEORGIA, TO SOUTHERN AIRWAYS, FORT WOLTERS, TEXAS.

INASMUCH AS THE VEHICLE MOVED UNDER SEALS, WE AGREE THAT FREIGHT CHARGES COMPUTED AT 22,400 POUNDS (7 POUNDS PER CUBIC FOOT AT 3,200 CUBIC FEET) ARE CORRECT, AND YOUR CLAIM WILL BE ALLOWED TO THAT EXTENT.

THE BILL, HOWEVER, ALSO INCLUDED A DD FORM 619, STATING A CHARGE OF $138 FOR LOADING, PLUS $69 FOR UNLOADING. INASMUCH AS THE BILL OF LADING IS ANNOTATED "SHIPPER TO LOAD; CONSIGNEE TO UNLOAD" THE MATTER WAS INVESTIGATED AND A COPY OF THE ROUTE ORDER WAS SUPPLIED SHOWING THAT THE LOADING BY CARRIER WAS NOT AUTHORIZED AND THAT THE VEHICLE WAS UNLOADED BY EMPLOYEES OF THE CONSIGNEE. IN THE CIRCUMSTANCES, THE PRIMA FACIE SHOWING ON THE DD FORM 619 AS TO LOADING AND UNLOADING COSTS IS REBUTTED, AND THE BURDEN OF PROVING THE CORRECTNESS OF ITS CLAIMS RESTS WITH THE CARRIER. UNITED STATES V NEW YORK, NEW HAVEN & HARTFORD RR CO., 355 U.S. 253, 262 (1957).

FINALLY, WE ARE ENCLOSING COPIES OF OUR RECORD IN CONNECTION WITH A SHIPMENT MADE UNDER BILL OF LADING F-2,112,710, DATED FEBRUARY 23, 1970, COVERING OFFICE FURNITURE TRANSPORTED FROM MINOT AIR FORCE BASE, NORTH DAKOTA, TO HILL AIR FORCE BASE, UTAH. IN VIEW OF THE REPRESENTATIONS MADE IN THE DD FORMS 619, AND THE CONFLICTING COMMENT RECEIVED FROM THE ADMINISTRATIVE OFFICE WE MUST CONCLUDE THAT THE BASIS SET FORTH ON OUR FORM NO. 1003, DATED DECEMBER 28, 1970, IS CORRECT, AND THAT THE GOVERNMENT HAS BEEN OVERCHARGED $829.34 ON THIS ITEM.

WE ARE OF THE VIEW THAT WITH RESPECT TO THE APPLICATION OF THE COWBOY VAN LINES TENDERS WHICH WERE IN EFFECT PRIOR TO FEBRUARY 16, 1971, THE CARRIER IS ENTITLED TO THE 7 POUND PER CUBIC FOOT BASIS WHEN SEALS WERE ATTACHED TO THE VEHICLE BY THE SHIPPER AND IN INSTANCES WHERE EXCLUSIVE USE OF THE VEHICLE WAS ORDERED AND FURNISHED. WE DO NOT AGREE THAT THE MERE ORDERING A VEHICLE, WITHOUT MORE, FOR THE ACCOMMODATION OF A PARTICULAR CONSIGNMENT, IS A REQUEST FOR COMPLETE AND SOLE OCCUPANCY OF THE VEHICLE AND, THEREFORE, IN SUCH CASES THE RATE SCALES IN APPENDIX III OF THE EFFECTIVE TENDERS ARE FOR APPLICATION. WITH RESPECT TO THE ACCESSORIAL SERVICES LOADING AND UNLOADING CHARGES, IN VIEW OF THE DUBIOUS AUTHENTICITY OF VARIOUS DD FORMS 619 AS EXECUTED, WE WILL RECOGNIZE THE VALIDITY OF THE INFORMATION IN SUCH FORMS ONLY WHEN SUPPORTED BY SUPPLEMENTARY EVIDENCE CONFIRMING THE CORRECTNESS OF THE INFORMATION.

OUR TRANSPORTATION DIVISION WILL REVIEW THE RECORD AND REVISE THE DEBT, CURRENTLY $114,330.75, CONSISTENT WITH THE VIEWS HEREIN STATED AND YOUR COMPANY WILL BE ADVISED ACCORDINGLY.

AS YOU KNOW, ACTION HAS BEEN TAKEN TO RECOVER THIS SUBSTANTIAL DEBT BY MONTHLY INSTALLMENT PAYMENTS. SUCH A PROCEDURE WILL BE CONTINUEL FOR THE TIME BEING, PENDING CONSIDERATION OF ALTERNATIVE PROPOSALS FOR THE LIQUIDATION OF THE DEBT.