B-148222, AUG. 19, 1964
Highlights
TO JACK COLE COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 30. WHICH IS. " FOR $294 ADDITIONAL FREIGHT CHARGES COMPUTED ON THE BASIS THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS FURNISHED ON A SHIPMENT OF GOVERNMENT PROPERTY WHICH MOVED IN APRIL 1961. THE VEHICLE USED IS LOADED TO CAPACITY. AS WE HAVE POINTED OUT. WHICH ARE STILL PENDING. APART FROM THE BASIC QUESTION OF WHETHER EXCLUSIVE USE CHARGES ARE ALLOWABLE WHERE THE VEHICLE USED IS LOADED TO CAPACITY. TENDER NO. 212 WHICH WAS CANCELLED EFFECTIVE FEBRUARY 9. TWO MONTHS BEFORE THE PRESENT SHIPMENT NAMED AN ALL FREIGHT RATE OF $3.00 RATE WAS APPLICABLE ON TRANSPORTATION FROM DOVER AIR FORCE BASE. UPON WHICH THE ALLOWABLE CHARGES ARE COMPUTED.
B-148222, AUG. 19, 1964
TO JACK COLE COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1964, WHICH IS, IN EFFECT, A REQUEST FOR FURTHER CONSIDERATION OF OUR DECISION OF JUNE 13, 1962, IN WHICH WE SUSTAINED THE SETTLEMENT DISALLOWING YOUR CLAIM, ON SUPPLEMENTAL BILL 14,214 "A," FOR $294 ADDITIONAL FREIGHT CHARGES COMPUTED ON THE BASIS THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS FURNISHED ON A SHIPMENT OF GOVERNMENT PROPERTY WHICH MOVED IN APRIL 1961, UNDER GOVERNMENT BILL OF LADING A-8605170.
IN OUR DECISION OF JANUARY 22, 1964, WE AFFIRMED THE CONCLUSION REACHED IN THE PREVIOUS DECISION. WE DO NOT REGARD THE DECISION OF THE COURT OF CLAIMS IN CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270 (1962), AS FINALLY DISPOSING OF THE SO-CALLED "EXCLUSIVE USE OF VEHICLE" ISSUE SO AS TO CONTROL OUR AUDIT AND SETTLEMENT ACTION, WHERE, AS IN THIS INSTANCE, THE VEHICLE USED IS LOADED TO CAPACITY. AS WE HAVE POINTED OUT, THE DEPARTMENT OF JUSTICE AUTHORIZED FURTHER LITIGATION OF THAT ISSUE IN GARRETT FREIGHT LINES V. UNITED STATES, CIVIL ACTION NO. 2297, UNITED STATES DISTRICT COURT, DISTRICT OF IDAHO, EASTERN DIVISION, AND IN SEVERAL OTHER CASES, WHICH ARE STILL PENDING.
ALSO, APART FROM THE BASIC QUESTION OF WHETHER EXCLUSIVE USE CHARGES ARE ALLOWABLE WHERE THE VEHICLE USED IS LOADED TO CAPACITY, WE NOTE THAT BILL OF LADING A-8605170 SHOWS "COLE 212" AS THE TARIFF OR SPECIAL RATE AUTHORITY FOR THE TRANSPORTATION CHARGES. THIS NOTATION APPARENTLY REFERS TO A JOINT SECTION 22 TENDER, NO. I.C.C. 212, SUBMITTED BY THE SERVICE TRUCKING COMPANY AND THE JACK COLE COMPANY. TENDER NO. 212 WHICH WAS CANCELLED EFFECTIVE FEBRUARY 9, 1961, TWO MONTHS BEFORE THE PRESENT SHIPMENT NAMED AN ALL FREIGHT RATE OF $3.00 RATE WAS APPLICABLE ON TRANSPORTATION FROM DOVER AIR FORCE BASE, DELAWARE, TO BROOKLEY AIR FORCE BASE, ALABAMA. TENDER I.C.C. NO. 10, UPON WHICH THE ALLOWABLE CHARGES ARE COMPUTED, ALSO NAMES AN ALL FREIGHT RATE OF $3.00 PER 100 POUNDS, MINIMUM WEIGHT 16,000 POUNDS, ON TRANSPORTATION FROM DOVER AIR FORCE BASE TO BROOKLEY AIR FORCE BASE. MASTEN TRANSPORTATION, INC., AND THE JACK COLE COMPANY, THE CARRIERS ON THE BILL OF LADING JOINTLY SUBMITTED TENDER NO. 10. IN THE CIRCUMSTANCES, THERE IS SOME BASIS FOR CONCLUDING THAT THE PARTIES WERE CONTRACTING SPECIFICALLY WITH REFERENCE TO THE $3.00 RATE WHICH PRODUCED THE CHARGES YOU CLAIMED AND COLLECTED ON YOUR ORIGINAL BILLING.
ACCORDINGLY, WE WOULD NOT BE WARRANTED IN AUTHORIZING THE ALLOWANCE OF YOUR CLAIM.