B-165626, MAY 22, 1969

B-165626, MAY 22, 1969

TO UNITED VAN LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12, 1968, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED NOVEMBER 5, 1968, TK 879558, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $293.68 BY YOUR SUPPLEMENTAL BILL 164-115-66-A AND LETTER DATED JULY 9, 1968, FILE 164-115 -66. THE ADDITIONAL CHARGES WERE CLAIMED ON A SHIPMENT OF 65 BOXES OF ELECTRONIC EQUIPMENT (SIGNAL MONITOR),FSH 6625AS02936, WEIGHING 13,733 POUNDS, WHICH MOVED FROM WARRENTON, VIRGINIA, TO LOWRY AIR FORCE BASE, COLORADO, UNDER BILL OF LADING C 7107206, DATED MARCH 10, 1966, WHICH CONTAINS NOTATIONS "SPECIAL EXPEDITE" AND "DDD (DESIRED DELIVERY DATE) 14 MAR 66.'

FOR THE TRANSPORTATION INVOLVED, YOUR COMPANY ORIGINALLY CLAIMED AND WAS PAID CHARGES OF $1,373.30 BASED ON THE RATE OF $10 PER 100 POUNDS ON THE ACTUAL WEIGHT OF THE SHIPMENT UNDER RATES SET OUT IN SECTION 5 OF MILITARY RATE TENDER 1-C, I.C.C. NO. 22. ON OUR AUDIT HERE, THE APPLICABLE CHARGES WERE DETERMINED TO BE $950.32 (13,733 POUNDS AT $6.92 PER 100 POUNDS), BASED ON LOWER RATES OFFERED IN UNITED VAN LINES TENDER 1352, EFFECTIVE FEBRUARY 23, 1966, IN EFFECT AT THE TIME THE SHIPMENT MOVED. A NOTICE OF OVERCHARGE, FORM 1003, IN THE AMOUNT OF $422.98, WAS ISSUED AND THAT AMOUNT WAS SUBSEQUENTLY COLLECTED.

YOUR RECLAIM OF $293.68 IS BASED ON BILL OF LADING CORRECTION NOTICES BOTH DATED SEPTEMBER 28, 1967, WHICH PURPORT TO SHOW THAT EXCLUSIVE USE OF A 40-FOOT VEHICLE (2,800 CUBIC FEET) WAS REQUESTED AND TO CHANGE THE WEIGHT OF THE SHIPMENT TO 19,600 POUNDS.

IT IS UNDERSTOOD THE ACTUAL WEIGHT OF THE SHIPMENT WAS 13,733 POUNDS AND THAT THE BILL OF LADING CORRECTION NOTICES -- ISSUED ABOUT 18 MONTHS AFTER THE SHIPMENT MOVED -- WERE BASED ON APPLICABLE HIGHER EXCLUSIVE USE OF VEHICLE CHARGES AUTHORIZED IN RULE 5 (C) OF SUPPLEMENT 8 TO HOUSEHOLD GOODS CARRIERS BUREAU AGENT TARIFF NO. 107-B, MF I.C.C. NO. 121 AND APPENDIX A OF UNITED VAN LINES, INC., RATE TENDER 1352.

BUT WHILE RULE 5 (C) OF SUPPLEMENT 8 TO TARIFF NO. 107-B PROVIDES THAT A SHIPPER MAY ORDER A VEHICLE OF SPECIFIC CUBIC CAPACITY, IT PROVIDES THAT THE

"BILL OF LADING OR FREIGHT BILL TO BE MARKED OR STAMPED ( ( EXCLUSIVE USE OF A ----- CU. FT. VEHICLE ORDERED.'

IN 44 COMP. GEN. 799 AT 801, WE STATED:

"BEFORE WE CAN CONCLUDE THAT A CARRIER IS ENTITLED TO RECEIVE PREMIUM CHARGES FOR EXCLUSIVE USE OF A VEHICLE TWO CONDITIONS MUST BE SATISFIED. FIRST THERE MUST BE SUBSTANTIAL COMPLIANCE WITH THE TARIFF OR RATE QUOTATION REQUIREMENTS CONCERNING ANNOTATION OF THE BILLS OF LADING. CAMPBELL "66" EXPRESS, INC. V UNITED STATES, 157 CT. CL. 365, 302 F.2D 270 (1962). AND, SECOND, THERE MUST BE SOME EVIDENCE THAT EXCLUSIVE USE WAS, IN FACT, PERFORMED.' SEE PACIFIC INTERMOUNTAIN EXPRESS CO. V UNITED STATES, 167 CT. CL. 266 (1964) AND 39 COMP. GEN. 755.

THE NOTATIONS ON THE BILL OF LADING AS TO DESIRED DELIVERY DATE AND EXPEDITED SERVICE DO NOT IN OUR VIEW CONSTITUTE SUBSTANTIAL COMPLIANCE WITH THE TARIFF PROVISION REQUIRING THAT THE BILL OF LADING OR FREIGHT BILL BE ANNOTATED TO INDICATE THE SHIPPER ORDERED THE EXCLUSIVE USE OF A SPECIFIC SIZED VEHICLE. ALSO, THE TARIFF RULE MAKES NO PROVISION FOR MODIFICATION OF A BILL OF LADING AFTER THE SHIPMENT HAS BEEN ACCOMPLISHED; THEREFORE, THE CORRECTION NOTICES, ISSUED ABOUT 18 MONTHS AFTER COMPLETION OF THE SHIPMENT, DO NOT CURE THE OMISSION OF THE NOTATION REQUIRED BY THE TARIFF TO SHOW THE SHIPPER REQUESTED EXCLUSIVE USE OF VEHICLE SERVICE.

ALSO, THE PRESENT RECORD DOES NOT CONTAIN EVIDENCE THAT EXCLUSIVE USE WAS IN FACT PERFORMED. WHILE IT IS POSSIBLE THAT SUCH LATTER OMISSION COULD BE REMEDIED EVEN AT THIS LATE DATE, THE LACK OF A NOTATION ON THE BILL OF LADING OR FREIGHT BILL REQUIRED BY THE TARIFF TO SHOW EXCLUSIVE USE WAS ORDERED PRECLUDES ALLOWANCE OF YOUR SUPPLEMENTAL BILLING AND THE ACTION TAKEN IN DISALLOWING YOUR CLAIM ACCORDINGLY IS SUSTAINED.