B-125420, FEB. 11, 1957

B-125420, FEB. 11, 1957

TO MR. J. E. FRANCIS, GENERAL MANAGER, CONTINENTAL FREIGHT LINES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 1, 1956, RETURNING SIX FORMS 1003 ISSUED BY THE TRANSPORTATION DIVISION OF THIS OFFICE INDICATING OVERPAYMENTS TO YOUR COMPANY AND EXPRESSING YOUR DISSATISFACTION, GENERALLY, WITH THE MANNER IN WHICH THAT DIVISION HAS HANDLED YOUR ACCOUNT. FOUR OF THE RETURNED FORMS 1003 RELATE TO SHIPMENTS WHICH MOVED EARLY IN 1945, PRIOR TO YOUR OPERATION OF CONTINENTAL FREIGHT LINES, AND WERE ERRONEOUSLY SENT TO YOU. THE TRANSPORTATION DIVISION REPORTS THAT THOSE FOUR OVERPAYMENTS, TOTALING $681.68, HAVE BEEN WITHDRAWN FROM YOUR ACCOUNT AND THAT YOU HAVE BEEN INFORMED OF THAT ACTION. THE OTHER TWO FORMS 1003 RELATE TO SHIPMENTS THAT MOVED IN 1953, WHICH WAS LONG AFTER YOUR OPERATION OF CONTINENTAL FREIGHT LINES BEGAN LATE IN 1945.

ONE OF THE SITUATIONS ABOUT WHICH YOU COMPLAIN IS THE WITHHOLDING BY OUR OFFICE DURING 1949 OF FUNDS ALLEGEDLY DUE YOU IN THE AMOUNT OF $5,447.41 BECAUSE OF OVERPAYMENT MADE TO THE OLD CONTINENTAL FREIGHT LINES. AS YOU KNOW, THE PRINCIPAL FACTORS WHICH LED TO THE CONFUSION REGARDING LIABILITY FOR OVERPAYMENTS MADE TO CONTINENTAL FREIGHT LINES WAS YOUR ADOPTION OF THE SAME TRADE NAME AS THAT USED BY YOUR PREDECESSOR AND THE CLOSE FAMILY RELATIONSHIP BETWEEN YOU AND THE FORMER OPERATOR. BY THE TIME OUR INVESTIGATION HAD ESTABLISHED THAT YOUR COMPANY WAS, IN FACT, A NEW AND DIFFERENT ENTERPRISE FROM THE COMPANY BY THE SAME NAME PREVIOUSLY OPERATED BY YOUR BROTHER-IN-LAW, THERE HAD BEEN STATED AGAINST THE COMPANY OPERATED BY YOU OVERPAYMENTS IN EXCESS OF THE AMOUNTS THEN BEING HELD HERE WHICH OTHERWISE WERE DUE YOUR COMPANY.

IN A LETTER DATED JUNE 26, 1951, TO OUR TRANSPORTATION DIVISION, YOU INQUIRED AS TO THE DISPOSITION OF YOUR CLAIMS TOTALING $5,447.41 AND REQUESTED THAT DIVISION "TO RELEASE AND FORWARD ANY AND ALL AMOUNTS DUE THIS COMPANY (AS PER SCHEDULE) AFTER THE SET-OFFS THAT ARE IN ORDER HAVE BEEN MADE.' IN RESPONSE TO THAT LETTER, YOU WERE INFORMED BY OUR TRANSPORTATION DIVISION IN LETTERS DATED AUGUST 30 AND SEPTEMBER 7, 1951, THAT THERE WERE OF RECORD HERE CLAIMS OF YOUR COMPANY IN THE TOTAL AMOUNT OF $5,440.16 OF WHICH $5,004.42 WAS ALLOWABLE AND THAT THE LATTER AMOUNT, PLUS TWO CHECKS IN THE AMOUNTS OF $360.63 AND $166.08 FORWARDED HERE BY THE DEPARTMENT OF THE ARMY, HAD BEEN USED TO RECOVER OVERPAYMENTS TOTALING $5,531.13 MADE TO CONTINENTAL FREIGHT LINES AFTER YOU BECAME OWNER OF THAT COMPANY. ON THIS RECORD, IT IS CLEAR THAT THE USE OF THE AMOUNTS DUE YOU AS A SET OFF AGAINST OVERPAYMENTS MADE TO YOUR OWN COMPANY WAS IN COMPLIANCE WITH YOUR REQUEST OF JUNE 26, 1951; THAT YOU WERE FULLY INFORMED IN THE PREMISES AND THAT SUCH ACTION WAS ACCEPTABLE TO YOU AT THAT TIME AS EVIDENCED BY YOUR LETTER OF OCTOBER 5, 1951, TO OUR TRANSPORTATION DIVISION, ACKNOWLEDGING RECEIPT OF THE REFERRED-TO DIVISION LETTERS AND EXPRESSING YOUR APPRECIATION FOR THAT DIVISION'S COOPERATION AND ASSISTANCE IN DISPOSING OF THE MATTER.

WITH RESPECT TO THE MOVEMENT OF SUPPLIES FOR THE U.S. MARINE CORPS FROM BARSTOW, CALIFORNIA, TO SAN DIEGO, CALIFORNIA, OUR TRANSPORTATION DIVISION REPORTS THAT IT HAS ALLOWED ALL YOUR CLAIMS ON THE INVOLVED SHIPMENTS ON THE BASIS OF TRUCKLOAD MINIMUM WEIGHTS WHERE INFORMATION WAS RECEIVED FROM THE ADMINISTRATIVE OFFICE THAT EXCLUSIVE USE OF THE EQUIPMENT WAS REQUESTED AND FURNISHED. WHERE THE ADMINISTRATIVE OFFICE REPORTED THAT EXCLUSIVE USE OF EQUIPMENT WAS NOT REQUESTED, THE ALLOWABLE CHARGES NECESSARILY WERE COMPUTED ON THE BASIS OF THE VOLUME MINIMUM WEIGHTS. THAT DIVISION ALSO REPORTS THAT NO CLAIMS INVOLVING THAT QUESTION ARE PENDING AT THIS TIME.

WITH RESPECT TO THE MOVEMENT OF AMMUNITION FROM FALLBROOK, CALIFORNIA, TO NORTH ISLAND, CALIFORNIA, SINCE YOUR LETTER FAILS TO IDENTIFY BY BILL OF LADING NUMBERS OR OTHER REFERENCE THE PARTICULAR SHIPMENTS WITH WHICH YOU ARE CONCERNED, IT IS IMPOSSIBLE TO ASSEMBLE THE RECORD NECESSARY FOR US PROPERLY TO CONSIDER YOUR COMPLAINT REGARDING THAT MOVEMENT.

WITH RESPECT TO THE TWO FORMS 1003 INVOLVING SHIPMENTS WHICH MOVED IN 1953, YOU STATE YOU DO NOT BELIEVE THIS OFFICE CAN CLASSIFY FREIGHT "WHEN A BILL OF LADING CLEARLY STATES EXACTLY THE ITEM SHIPPED AND ALSO SHOWS THE CLASSIFICATION ON THE GBL.' IT IS A WELL-ESTABLISHED PRINCIPLE OF TRANSPORTATION THAT, IN THE FINAL ANALYSIS, IT IS THE TRUE NATURE AND CHARACTER OF THE ARTICLE SHIPPED AND NOT THE DESCRIPTION ON THE BILL OF LADING THAT DETERMINES THE APPLICABLE RATE. THE IMPORTANT FACT IS WHAT MOVED, NOT WHAT WAS BILLED.

IN VIEW OF THE FOREGOING, AND SINCE THE GENERAL STATEMENTS IN YOUR LETTER LACK SPECIFICITY SUFFICIENT TO WARRANT A DIFFERENT CONCLUSION, THE ACTIONS HERETOFORE TAKEN BY OUR TRANSPORTATION DIVISION MUST BE REGARDED AS HAVING BEEN JUSTIFIED.