B-165626, JUN. 18, 1969

B-165626, JUN. 18, 1969

TO UNITED VAN LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1969, REQUESTING RECONSIDERATION OF OUR DECISION DATED MAY 22, 1969, B-165626, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $293.68 BY YOUR SUPPLEMENTAL BILL 164-115-66-A. YOUR CLAIM WAS FOR ADDITIONAL FREIGHT CHARGES FOR EXCLUSIVE USE SERVICE 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-710726 DATED MARCH 10, 1966, WHICH CONTAINS NOTATIONS "SPECIAL EXPEDITE" AND "DDD (DESIRED DELIVERY DATE) 14 MAR 66.'

THE DISALLOWANCE WAS SUSTAINED SUBSTANTIALLY FOR THE REASON THAT 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 APPLICABLE TARIFF PROVISION QUOTED IN OUR DECISION OF MAY 22, 1969, REQUIRING THAT THE BILL OF LADING OR FREIGHT BILL BE ANNOTATED TO INDICATE THAT THE SHIPPER ORDERED THE EXCLUSIVE USE OF A SPECIFIC SIZED VEHICLE.

IN REQUESTING RECONSIDERATION OF THE MATTER, YOUR LETTER STATES:

"CERTAINLY YOU CANNOT DENY THE FACT THAT THIS T.O. (TRANSPORTATION OFFICER) NEEDED SOME TYPE OF PREMIUM (SERVICE) OR ELSE THE TERM SPECIAL EXPEDITE- WOULD NOT HAVE BEEN INSERTED ON THE GBL. (PARENTHETICAL MATTER SUPPLIED.)

"WE WOULD LIKE FOR YOU TO OFFER YOUR EXPLANATION AS TO WHY THIS DID APPEAR ON THE GBL AND WHAT WAS INTENDED BY ITS PRESENCE.'

THE NOTATION ON THE BILL OF LADING TO WHICH YOU REFER INDICATES THAT THE SHIPPER DESIRED EXPEDITED SERVICE. HOWEVER, IN THE ABSENCE OF A TARIFF ITEM SETTING FORTH RATES FOR EXPEDITED SERVICE ON A SHIPMENT WEIGHING IN EXCESS OF 13,000 POUNDS SUCH AS HERE INVOLVED (AND NOTHING IN RULE 5 (C) OF SUPPLEMENT 8 TO HOUSEHOLD GOODS CARRIERS BUREAU AGENT TARIFF NO. 107-B, MF-I.C.C. NO. 121 MENTIONS EXPEDITED SERVICE), A REQUEST FOR THAT SERVICE WOULD SEEM TO BE IMMATERIAL. THE COMMISSION HAS NOT FAVORED PROVISIONS MAKING PREMIUM CHARGES FOR EXPEDITED SERVICE. SEE MOTOR CARRIER RATES IN NEW ENGLAND, 47 M.C.C. 657, 678 (1948); LIFSCHULTZ FAST FREIGHT FROM NEW YORK TO CHICAGO, 276 I.C.C. 768 (1950); TUMPSON AND CO. V N. BRADDOCK MOTOR LINES, 8 FEDERAL CARRIER CASES, PAR. 32,266 (1951); CF. FREIGHT, ALL KINDS -- EXPEDITED SERVICE -- BETWEEN CHICAGO AND ATLANTA, 14 FEDERAL CARRIER CASES, PAR. 35,269 (1961).

WE NOTE TOO THAT THE CONTRACT OF CARRIAGE ALREADY REQUIRES THAT A CARRIER USE REASONABLE DISPATCH: CONDITION 2 OF THE GOVERNMENT BILL OF LADING STATES THAT UNLESS OTHERWISE SPECIFICALLY PROVIDED OR OTHERWISE STATED THEREON, THE GOVERNMENT BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERN COMMERCIAL SHIPMENTS MADE IN THE USUAL FORMS PROVIDED THEREFOR BY THE CARRIER; SECTION 2 (A) OF THE UNIFORM STRAIGHT BILL OF LADING, IN USE AT THE TIME THE SHIPMENT MOVED (SEE NATIONAL MOTOR FREIGHT CLASSIFICATION A-8, MF-I.C.C. 7), PROVIDES THAT: "NO CARRIER IS BOUND TO TRANSPORT SAID PROPERTY BY ANY PARTICULAR SCHEDULE, TRAIN, VEHICLE OR VESSEL, OR IN TIME FOR ANY PARTICULAR MARKET OR OTHERWISE THAN WITH REASONABLE DISPATCH.'

YOUR INQUIRY WITH RESPECT TO OUR POLICY REGARDING THE ACCEPTING OF A "BELATED" ADMINISTRATIVE REPORT IN THE SETTLEMENT OF CLAIMS AGAINST A CARRIER APPEARS TO HAVE REFERENCE TO DISPUTES OVER A QUESTION OF FACT AND IT HAS LONG BEEN THE RULE OF THE GENERAL ACCOUNTING OFFICE IN DISPUTES OVER QUESTIONS OF FACT TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT IN THE ABSENCE OF CONVINCING CONTRARY EVIDENCE. 37 COMP. GEN. 568, 41 COMP. GEN. 47, 46 COMP. GEN. 740. HOWEVER, HERE THERE APPEARS TO BE NO DISPUTE AS TO THE ACTUAL WEIGHT OF THE SHIPMENT, OR WHAT NOTATIONS WERE ON THE BILL OF LADING. THE QUESTION IS WHETHER THE NOTATIONS INDICATING A DESIRE FOR EXPEDITED SERVICE CONSTITUTED A REQUEST FOR EXCLUSIVE USE OF VEHICLE SERVICE REQUIRED BY RULE 5 (C) OF TARIFF NO. 107-B. IT IS OUR VIEW THAT SUCH NOTATIONS DID NOT DO SO EITHER IN THE EXACT LANGUAGE OF THE PROVISION OR IN SUBSTANTIALLY SIMILAR LANGUAGE.

THE CONTENTS OF YOUR LETTER HAVE BEEN CAREFULLY CONSIDERED AND WE FIND NO LEGAL BASIS TO SUPPORT YOUR CLAIM AND OUR DECISION OF MAY 22, 1969, SUSTAINING THE DISALLOWANCE OF SUCH CLAIM IS AFFIRMED.