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B-146511, NOV. 24, 1964

B-146511 Nov 24, 1964
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B. JAMES FREIGHT LINES: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 14. SUCH CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE DATED JUNE 15. THE DISALLOWANCE WAS SUSTAINED BY OUR DECISIONS OF NOVEMBER 22. WHICH WAS SUSTAINED BY OUR DECISIONS OF NOVEMBER 22. THERE WAS NOTHING PENDING HERE UPON WHICH OUR OFFICE COULD TAKE ACTION. TO WHICH YOU REFER CONSIDERED EVEN IN THE LIGHT MOST FAVORABLE TO THE CARRIER MERELY HELD THAT THE REFERENCES ON THE BILLS OF LADING THERE INVOLVED WHEN TAKEN TOGETHER WITH THE SPARSE TESTIMONY RELATIVE THERETO DID NOT ESTABLISH THAT ANY RATE WAS AGREED UPON OTHER THAN THE LOWER RATE OTHERWISE APPLICABLE. IT DOES NOT HOLD THAT ALL NOTATIONS SUCH AS THAT ON BILL OF LADING N- 30532294 HERE INVOLVED LIMITING THE MAXIMUM CHARGES TO APPLICABLE TARIFF RATES ON FILE WITH THE INTERSTATE COMMERCE COMMISSION OR THOSE IN A PARTICULAR TARIFF SUCH AS THE CALIFORNIA RAILROAD HIGHWAY CARRIERS TARIFF NO. 2 ARE A NULLITY.

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B-146511, NOV. 24, 1964

TO A. B. JAMES FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 14, 1964, FILE NO. N 482/48, UC-150, 183515, TK-711691, REQUESTING FURTHER RECONSIDERATION BE GIVEN TO YOUR CLAIM BY BILL NO. UC-150, N-482, 183515, FOR REFUND OF THE AMOUNT OF $20,70 (SHOWN ELSEWHERE AS $20.74 AND $20.76) RECOVERED BY DEDUCTION UNDER 49 U.S.C. 66 DURING NOVEMBER 1951, FROM AMOUNTS OTHERWISE PAYABLE TO YOUR COMPANY BECAUSE OF AN OVERCHARGE MADE IN YOUR BILL N-482 DATED APRIL 7, 1948, IN BILLING FOR TRANSPORTATION SERVICES RENDERED THE DEPARTMENT OF THE NAVY PURSUANT TO GOVERNMENT BILL OF LADING N-30532294, DATED MARCH 22, 1948. SUCH CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE DATED JUNE 15, 1961, AND THE DISALLOWANCE WAS SUSTAINED BY OUR DECISIONS OF NOVEMBER 22, 1961, AND FEBRUARY 7, 1962, B-146511.

YOU BASE YOUR REQUEST FOR RECONSIDERATION UPON A FINDING OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN THE CASE OF UNITED STATES V. FRANCIS, 320 F.2D 191 (1963), THAT CERTAIN NOTATIONS ON SEVERAL BILLS OF LADING THERE INVOLVED WHEN TAKEN TOGETHER WITH SPARSE TESTIMONY RELATIVE THERETO DID NOT ESTABLISH THAT THE PARTIES AGREED TO PAY A RATE DIFFERENT (AND HIGHER) THAN THAT OTHERWISE APPLICABLE THERETO.

THE DISALLOWANCE OF YOUR CLAIM BY OUR SETTLEMENT CERTIFICATE OF JUNE 15, 1961, WHICH WAS SUSTAINED BY OUR DECISIONS OF NOVEMBER 22, 1961, AND FEBRUARY 7, 1962, COMPLETELY DISPOSED OF YOUR CLAIM. THEREAFTER, THERE WAS NOTHING PENDING HERE UPON WHICH OUR OFFICE COULD TAKE ACTION. YOUR LETTER OF AUGUST 14, 1964, RECEIVED MORE THAN TWO YEARS SUBSEQUENT TO THE CLOSING OF ACTION ON SUCH CLAIM, MAY NOT BE REGARDED AS A TIMELY REQUEST FOR REVIEW WHICH IF OTHERWISE MERITORIOUS WE WOULD BE DISPOSED TO RECONSIDER AND ALLOW. COMPARE 32 COMP. GEN. 107.

MOREOVER, THE PORTION OF THE DECISION IN THE FRANCIS CASE, TO WHICH YOU REFER CONSIDERED EVEN IN THE LIGHT MOST FAVORABLE TO THE CARRIER MERELY HELD THAT THE REFERENCES ON THE BILLS OF LADING THERE INVOLVED WHEN TAKEN TOGETHER WITH THE SPARSE TESTIMONY RELATIVE THERETO DID NOT ESTABLISH THAT ANY RATE WAS AGREED UPON OTHER THAN THE LOWER RATE OTHERWISE APPLICABLE. IT DOES NOT HOLD THAT ALL NOTATIONS SUCH AS THAT ON BILL OF LADING N- 30532294 HERE INVOLVED LIMITING THE MAXIMUM CHARGES TO APPLICABLE TARIFF RATES ON FILE WITH THE INTERSTATE COMMERCE COMMISSION OR THOSE IN A PARTICULAR TARIFF SUCH AS THE CALIFORNIA RAILROAD HIGHWAY CARRIERS TARIFF NO. 2 ARE A NULLITY.

WE ACCORDINGLY ADHERE TO OUR PREVIOUS DECISIONS WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM.

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