B-178259, FEB 27, 1974, 53 COMP GEN 628

B-178259: Feb 27, 1974

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THE ANNOTATIONS ON THE SHIPPING DOCUMENT ARE IN COMPLIANCE WITH THE PROVISIONS OF THE TENDER AND ARE NOT DISPUTED BY THE ADMINISTRATIVE REPORT. THE CONSTRUCTIVE WEIGHT OF THE SPACE OF EACH VEHICLE ORDERED OR USED IS THE PROPER BASIS FOR COMPUTING THE CARRIER'S CHARGES. THUS WE ARE REQUIRED TO FURNISH A LEGAL INTERPRETATION OF THE CONSTRUCTIVE WEIGHT PROVISIONS CONTAINED IN SO-CALLED ELECTRONICS CARRIERS' SECTION 22 TENDERS ISSUED PURSUANT TO 49 U.S.C. 22 AND 317(B). TENDER 50 AND 150 IS SIMILAR. EACH CONSISTS OF SEVERAL COLUMNS OF RATES WHICH ARE TIED TO VARYING MILEAGE BLOCKS. ON THE THEORY THAT SPECIAL SERVICE IS INVOLVED. UNDER THESE CIRCUMSTANCES IT IS IMPOSSIBLE TO FORMULATE A SINGLE LEGAL PRINCIPLE THAT CAN BE EXPECTED TO SERVE AS AN "UMBRELLA" OVER ALL SUCH CASES.

B-178259, FEB 27, 1974, 53 COMP GEN 628

TRANSPORTATION - RATES - SECTION 22 QUOTATIONS - EXCLUSIVE VEHICLE USE SHIPMENTS WHEN A SHIPPER ORDERS THE SPECIAL SERVICE PROVIDED IN CARRIER'S SECTION 22 TENDER, ISSUED PURSUANT TO 49 U.S.C. 22 AND 317(B), WHICH COVERS ELECTRONIC EQUIPMENT AND INSTRUMENTS, AND THE ANNOTATIONS ON THE SHIPPING DOCUMENT ARE IN COMPLIANCE WITH THE PROVISIONS OF THE TENDER AND ARE NOT DISPUTED BY THE ADMINISTRATIVE REPORT, THE CONSTRUCTIVE WEIGHT OF THE SPACE OF EACH VEHICLE ORDERED OR USED IS THE PROPER BASIS FOR COMPUTING THE CARRIER'S CHARGES. FURTHERMORE, UNDER THE TENDER SHOULD EACH VEHICLE BE LOADED TO THE FULL VISIBLE CAPACITY OF THE VEHICLE, EVEN IF THE SHIPPER FAILED TO ANNOTATE THE GOVERNMENT BILL OF LADING OR DID NOT INTEND TO REQUEST SPECIAL SERVICE, THE CARRIER WOULD BE ENTITLED TO CHARGES BASED ON CONSTRUCTIVE WEIGHT.

IN THE MATTER OF TRANS COUNTRY VAN LINES, INC., FEBRUARY 27, 1974:

TRANS COUNTRY VAN LINES, INC., REQUESTS A DECISION ON THE SETTLEMENT OF ITS BILLS FOR THE FREIGHT CHARGES ON SHIPMENTS OF ELECTRONIC EQUIPMENT AND INSTRUMENTS TRANSPORTED UNDER GOVERNMENT BILLS OF LADING F-0811135 (CLAIM TK-965215) AND F-5180240 (CLAIM TK-946095). THUS WE ARE REQUIRED TO FURNISH A LEGAL INTERPRETATION OF THE CONSTRUCTIVE WEIGHT PROVISIONS CONTAINED IN SO-CALLED ELECTRONICS CARRIERS' SECTION 22 TENDERS ISSUED PURSUANT TO 49 U.S.C. 22 AND 317(B), WHEN A SHIPMENT OCCUPIES THE FULL VISIBLE CAPACITY OF THE TRANSPORTING VEHICLE FURNISHED BY THE CARRIER.

BASED ON OUR DECISION TO TRANS-WORLD MOVERS, INC., 51 COMP. GEN. 208 (1971), OUR TRANSPORTATION AND CLAIMS DIVISION DEDUCTED $391.80 AND $135.88 FROM MONIES OTHERWISE DUE TRANS COUNTRY VAN LINES, INC., IN CONNECTION WITH THE TRANSPORATION OF TWO SHIPMENTS OF ELECTRONICS EQUIPMENT, DURING FEBRUARY AND JULY, 1970, RESPECTIVELY. TRANS COUNTRY DISPUTES THE VALIDITY AND APPLICABILITY OF THE PRINCIPLES ESTABLISHED IN 51 COMP. GEN. 208 REGARDING CONSTRUCTIVE WEIGHT AS A BASIS FOR CHARGES IN SETTLEMENT ACTIONS TAKEN IN CONNECTION WITH THESE SHIPMENTS.

THE BASIC STRUCTURE OF TRANS-WORLD'S (COWBOY VAN LINES, INC.) I.C.C. TENDER 69-4 AND TRANS COUNTRY'S I.C.C. TENDER 50 AND 150 IS SIMILAR. EACH CONSISTS OF SEVERAL COLUMNS OF RATES WHICH ARE TIED TO VARYING MILEAGE BLOCKS. THESE COLUMNS CONSTITUTE A SLIDING SCALE OF VOLUME MINIMUM WEIGHTS. HOWEVER, CARRIERS OFTEN ASSESS CHARGES ON THE BASIS OF SEVEN POUNDS PER CUBIC FOOT OF VAN SPACE ORDERED OR UTILIZED (CONSTRUCTIVE WEIGHT), OR ACTUAL WEIGHT IF GREATER, ON THE THEORY THAT SPECIAL SERVICE IS INVOLVED.

WE RECOGNIZE THAT THE AUDIT OF BILLS RELATING TO NUMEROUS ELECTRONICS SHIPMENTS OFTEN INVOLVES COMPLICATED AND CONFLICTING RECORDS IN REGARD TO THE DEMAND AND PERFORMANCE OF SPECIAL SERVICES, AND THAT THE CARRIERS' TENDERS CONTAIN VARIOUSLY DRAFTED CONSTRUCTIVE WEIGHT PROVISIONS. UNDER THESE CIRCUMSTANCES IT IS IMPOSSIBLE TO FORMULATE A SINGLE LEGAL PRINCIPLE THAT CAN BE EXPECTED TO SERVE AS AN "UMBRELLA" OVER ALL SUCH CASES; DISTINCTIONS MUST BE MADE AS MATERIAL DIFFERENCES IN THE WORDING OF THESE TENDERS ARE DISCLOSED.

CONCERNING THE DECISION PUBLISHED IN 51 COMP. GEN. 208, THE PERTINENT PART OF COWBOY'S TENDER 69-4, THE SECTION 22 QUOTATION INVOLVED THEREIN, READS AS FOLLOWS:

NOTE: 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.

SPECIAL SERVICE IS REQUESTED FOR SHIPMENTS 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 SHIPPER'S 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 THE 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.

IN THAT CASE, THE GOVERNMENT BILL OF LADING (GBL) SHOWED THAT A 40 FOOT VEHICLE WAS ORDERED AND FURNISHED, AND THAT THE VEHICLE WAS FULLY LOADED. IT WAS DISCLOSED, HOWEVER, THAT THESE NOTATIONS, INDICATING A REQUEST FOR A SPECIFIC VEHICLE, WERE INSERTED BY THE CARRIER WITHOUT THE SHIPPER'S AUTHORITY. THE RECORD INDICATED THAT SEALS WERE NOT APPLIED, AND AN ADMINISTRATIVE REPORT CONFIRMED THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS NOT REQUESTED BY THE SHIPPER. BASED ON THESE FACTS AND THE CONSTRUCTIVE WEIGHT PROVISIONS OF COWBOY'S TENDERS, WE HELD THAT WHERE A TENDER FAILS TO SPECIFY WHICH, IF ANY, SPECIAL SERVICES IS OFFERED, A MERE REQUEST FOR A SPECIFIC SIZE OF VEHICLE FOR LOADING IS NOT A REQUEST FOR EXCLUSIVE USE OF VEHICLE AUTHORIZING USE OF CONSTRUCTIVE WEIGHT, WHETHER OR NOT THE SHIPMENT FULLY LOADS THE VEHICLE. IN VIEW OF THE AMBIGUITIES OF THAT TENDER WE EXPRESSED THE OPINION, AS DICTUM, THAT FULL USE OF A TRAILER, THUS AUTHORIZING THE CONSTRUCTIVE WEIGHT BASIS, COULD BE ESTABLISHED WHERE SEALS WERE APPLIED OR EXCLUSIVE USE OF VEHICLE WAS ACTUALLY REQUESTED AND FURNISHED.

IN THE RECORDS BEFORE US NOW, GBL F-0811135 SHOWS THAT A 40-FOOT VEHICLE WAS ORDERED AND FURNISHED TO TRANSPORT A SHIPMENT WEIGHING 14,740 POUNDS FROM KEESLER AFB, MISSISSIPPI, TO MCCLELLAN AFB, CALIFORNIA. THE GBL SHOWS THAT THE SHIPMENT FULLY LOADED THE VEHICLE.

OTHER NOTATIONS, APPEARING IN THE DESCRIPTION OF ARTICLES COLUMN OF THE GBL, ARE OF RELEVANCE TO THE QUESTION OF SPECIAL SERVICE: "1 T/L" (I.E., ONE TRUCKLOAD), AND "CUBIC CAPACITY OF VEHICLE 3100" (I.E., 3,100 CUBIC FEET OF SPACE OF VEHICLE; LATER CHANGED TO 3,000 CUBIC FEET BY CARRIER).

GOVERNMENT BILL OF LADING F-5180240 SHOWS THAT A 40-FOOT VEHICLE, WITH A MARKED CAPACITY OF 3,000 CUBIC FEET OF SPACE WAS ORDERED AND FURNISHED, AND THAT THE SHIPMENT, WHICH HAD A NET WEIGHT DISTRIBUTED OVER FOUR FULLY LOADED VEHICLES OF 16,580, 22,210, 15,950, AND 11,850 POUNDS, WAS TRANSPORTED FROM KEY WEST, FLORIDA, TO QUONSET POINT, RHODE ISLAND. ALSO ON THE GBL WERE THE NOTATIONS "4 TRUCKLOADS BASED ON 20,000 LBS MINIMUM EACH TRUCKLOAD," AND "EACH 40 FT VAN LOADED TO FULL VISIBLE CAPACITY." SHOULD ALSO BE NOTED THAT ON EACH GBL THE BLOCK INDICATING THAT THE SHIPMENT FULLY LOADED EACH VEHICLE WAS APPROPRIATELY MARKED.

ITEM 1 OF TENDER 50, APPLICABLE TO THE FIRST SHIPMENT, AND TENDER 150, APPLICABLE TO THE SECOND SHIPMENT, READS AS FOLLOWS:

ITEM #1 - COMMODITY OR SERVICE

OFFICE FURNITURE, FILES, FIXTURES, AND EQUIPMENT, LINK TRAINERS, FLIGHT SIMULATORS, RADAR SETS, ELECTRONIC EQUIPMENT, COMPUTERS, MISSILES, SPACECRAFT AND/OR PARTS THEREOF, AND/OR COMPONENTS, SCIENTIFIC INSTRUMENTS AND ARTICLES OF SECRET NATURE WHEN SO CLASSIFIED BY THE MILITARY AND SPECIFIED ON THE GOVERNMENT BILL OF LADING OR DD 619 FORM. EXCEPT ARTICLES, EQUIPMENT AND INSTRUMENTS WHICH REQUIRE THE USE OF TEMPERATURE AND/OR HUMIDITY CONTROLLED EQUIPMENT.

WHEN THE SHIPPER OR SHIPPERS AGENT ORDERS A SPECIFIC VEHICLE OR VEHICLE SERVICE, I.E., COMPLETE OCCUPANCY OF VEHICLE, EXCLUSIVE USE OF VEHICLE, OR THE VEHICLE SEALED, OR SPACE RESERVATION FOR A PORTION OF THE VEHICLE OR VEHICLES, AND THE GOVERNMENT BILL OF LADING, CARRIERS BILL OF LADING OR DD 619 FORM IS MARKED, STAMPED OR ANNOTATED IN ANY MANNER TO INDICATE SUCH SPECIFIC VEHICLE OR VEHICLE SERVICE, THE CARRIER WILL PROVIDE THE SERVICE AND ASSESS THE TRANSPORTATION CHARGES COMPUTED ON ACTUAL WEIGHT SUBJECT TO A MINIMUM WEIGHT BASED ON SEVEN POUNDS PER CUBIC FOOT OF VEHICLE SPACE ORDERED OR UTILIZED.

WHEN THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, OR THE MILITARY DEPARTMENTS, EITHER DIRECTLY OR THROUGH A CONSIGNOR REPRESENTATIVE THEREOF, FAILS TO ANNOTATE THE GOVERNMENT BILL OF LADING DD 619 FORM, AND CUBIC FOOTAGE OF THE SHIPMENT OCCUPIES THE FULL VISIBLE CAPACITY OF THE VEHICLE OR VEHICLES FURNISHED, THE TRANSPORTATION CHARGES WILL BE COMPUTED ON THE ACTUAL WEIGHT OF THE SHIPMENT SUBJECT TO A MINIMUM WEIGHT BASED ON SEVEN POUNDS PER CUBIC FOOT OF THE TOTAL VEHICLE SPACE FURNISHED.

OF IMPORTANCE IS THE FACT THAT IN THE SECOND PARAGRAPH, SPECIFIC SPECIAL SERVICES ARE ENUMERATED, INCLUDING COMPLETE OCCUPANCY OF VEHICLE - A MATERIAL FACT DISTINGUISHING THESE TENDERS FROM COWBOY'S TENDER 69-4. OUR OPINION THE NOTATIONS ON BOTH GBLS SUFFICIENTLY INDICATE THAT COMPLETE OCCUPANCY OF 40-FOOT TRAILERS, EACH HAVING A DISPLACEMENT OF 3,000 CUBIC FEET, WAS REQUESTED, AND IN THE ABSENCE OF A NEGATIVE ADMINISTRATIVE REPORT IN THE RECORD DISCLOSING THAT THE CARRIER MADE UNAUTHORIZED NOTATIONS MANIFESTING REQUEST FOR SPECIAL SERVICE, THERE IS NO EVIDENCE TO REBUT THE PRIMA FACIE SHOWING THAT SUCH A REQUEST WAS MADE IN EACH INSTANCE. CF. B-178563, FEBRUARY 15, 1974, 53 COMP. GEN. 603, AND 51 ID. 208, AT 212 (1971).

WE HOLD THAT WHERE THE CONSTRUCTIVE WEIGHT PROVISIONS OF THE ELECTRONICS TENDER SPECIFY THE SPECIAL SERVICE BEING OFFERED AND THE SHIPPER COMPLIES WITH THE IMPERATIVES FOR PERFORMANCE OF THAT SERVICE, SUCH AS HERE, WHERE THE SHIPPER ORDERS COMPLETE OCCUPANCY OF A 3,000 CUBIC FOOT VEHICLE, 40 FEET IN LENGTH AND THE GBL OR RELATED DOCUMENT IS ANNOTATED MANIFESTING A REQUEST FOR SUCH SERVICE, IN THE ABSENCE OF A NEGATIVE ADMINISTRATIVE REPORT, THE CARRIER IS ENTITLED TO PAYMENT OF CHARGES BASED ON CONSTRUCTIVE WEIGHT OF THE SPACE OF EACH VEHICLE ORDERED OR UTILIZED. WITH REFERENCE TO THE MULTI-VEHICLE SHIPMENT, WE SEE NOTHING IN THESE TENDERS THAT WOULD WARRANT APPLYING CONSTRUCTIVE WEIGHT TO THE SHIPMENT AS A WHOLE. WE FEEL IT SHOULD BE APPLIED TO EACH VEHICLE THAT IS LOADED TO FULL VISIBLE CAPACITY.

IT APPEARS TO US, BASED ON THE THIRD PARAGRAPH OF ITEM 1 OF THE TENDERS QUOTED ABOVE, AND THE FACT THAT EACH VEHICLE WAS LOADED TO FULL VISIBLE CAPACITY THAT IF THE SHIPPER HAD FAILED TO ANNOTATE THE GBL, OR EVEN IF THE SHIPPER HAD NOT INTENDED TO REQUEST SPECIAL SERVICE, THE CARRIER WOULD BE ENTITLED TO CHARGES BASED ON CONSTRUCTIVE WEIGHT. WHATEVER CONSEQUENCES MIGHT FLOW FROM SUCH AN INTERPRETATION WOULD NOT APPEAR TO BE A MATTER OF AUDIT RESPONSIBILITY AS MUCH AS ONE OF TRAFFIC MANAGEMENT.

WE COULD NOT INTERPRET COWBOY'S TENDER 69-4 IN THIS MANNER BECAUSE THE PERTINENT PROVISIONS THERE DID NOT REQUIRE A VEHICLE TO BE FULLY LOADED AND THE PROVISIONS IMPLIED THAT A REQUEST FOR SPECIAL SERVICE WAS INTENDED BUT THE ANNOTATION WAS INADVERTENTLY OMITTED FROM THE GBL. NEVERTHELESS, THE PROPOSITION IN 51 COMP. GEN. 208, RELATING TO FULL USE OF A TRAILER, WHERE WE SAID THAT THE 7 POUNDS PER CUBIC FOOT BASIS SHOULD BE UPHELD IN ANY INSTANCE WHERE THE BILL OF LADING RECORD, OR SUBSEQUENT ADMINISTRATIVE ADVICE INDICATES THAT FULL USE OF A TRAILER WAS DESIRED BY THE SHIPPER, WOULD HAVE GENERAL APPLICATION.

CERTIFICATES OF SETTLEMENT WILL BE ISSUED AUTHORIZING PAYMENT OF SUCH AMOUNTS AS MAY BE FOUND DUE TRANS COUNTRY CONSISTENT WITH THE OPINION THAT CHARGES ARE PROPERLY ASSESSED ON THE CONSTRUCTIVE WEIGHT, OR ACTUAL WEIGHT, IF GREATER, OF EACH VEHICLE USED.