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B-151413, FEB. 14, 1964

B-151413 Feb 14, 1964
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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 18. THIS BILL OF LADING WAS ANNOTATED TO SHOW THAT HUGHES SEAL NO. 9397 AND EXPLOSIVE PLACARDS WERE APPLIED BUT CONTAINS NOTHING TO INDICATE THAT THE SHIPMENT WAS TENDERED AS A TRUCKLOAD SHIPMENT. THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE SHIPPER OR ACTUALLY FURNISHED. OR THAT THE SEALS WERE NOT TO BE BROKEN FOR ANY REASON. FOR THIS SERVICE HUGHES BILLED IN MAY 1951 AND WAS PAID $192.70. THE CLAIM WAS DISALLOWED ON OCTOBER 10. FOR THE REASON THAT IN THE GUS BLASS CASE THE CARRIER WAS SPECIFICALLY INSTRUCTED BY THE SHIPPER NOT TO BREAK THE SEALS. IN THE PRESENT CASE THERE IS NO SHOWING THAT SUCH INSTRUCTIONS WERE GIVEN THE CARRIER.

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B-151413, FEB. 14, 1964

TO HUGHES TRANSPORTATION, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1963, REQUESTING REVIEW OF THE SETTLEMENT CERTIFICATE DATED OCTOBER 10, 1962, DISALLOWING A CLAIM BY HUGHES TRANSPORTATION, INC., FOR $383.30 ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A SHIPMENT OF HIGH EXPLOSIVES FROM RICHMOND, KENTUCKY, TO FORT JACKSON, SOUTH CAROLINA, UNDER GOVERNMENT BILL OF LADING WV-9252440, DATED APRIL 30, 1951. THIS BILL OF LADING WAS ANNOTATED TO SHOW THAT HUGHES SEAL NO. 9397 AND EXPLOSIVE PLACARDS WERE APPLIED BUT CONTAINS NOTHING TO INDICATE THAT THE SHIPMENT WAS TENDERED AS A TRUCKLOAD SHIPMENT, THAT EXCLUSIVE USE OF THE VEHICLE WAS REQUESTED BY THE SHIPPER OR ACTUALLY FURNISHED, OR THAT THE SEALS WERE NOT TO BE BROKEN FOR ANY REASON.

FOR THIS SERVICE HUGHES BILLED IN MAY 1951 AND WAS PAID $192.70, COMPUTED AT A CLASS 100 (EXCEPTIONS) LESS-THAN-TRUCKLOAD RATE OF $2.74 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 7,033 POUNDS. IN APRIL 1961, ALMOST TEN YEARS AFTER THE ORIGINAL PAYMENT THE CARRIER SUBMITTED ITS SUPPLEMENTAL BILL FOR $383.30 ADDITIONAL ON THE BASIS THAT THE FREIGHT CHARGES SHOULD BE $576, COMPUTED AT A CLASS 70 (EXCEPTIONS) TRUCKLOAD RATE OF $1.92 PER 100 POUNDS ON A TRUCKLOAD MINIMUM WEIGHT OF 30,000 POUNDS. AS AUTHORITY FOR THE REVISED CHARGE BASIS THE CARRIER REFERRED TO SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 1-B, SECTION 1, PART A, AND THE CASE OF GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603 (1951). THE CLAIM WAS DISALLOWED ON OCTOBER 10, 1962, FOR THE REASON THAT IN THE GUS BLASS CASE THE CARRIER WAS SPECIFICALLY INSTRUCTED BY THE SHIPPER NOT TO BREAK THE SEALS, WHEREAS, IN THE PRESENT CASE THERE IS NO SHOWING THAT SUCH INSTRUCTIONS WERE GIVEN THE CARRIER.

YOUR LETTER OF OCTOBER 20, 1962, REQUESTED RECONSIDERATION OF THE SUPPLEMENTAL BILL ON THE GROUND THAT THE SEALS IN THIS INSTANCE WERE APPLIED TO THE VEHICLE BY THE MILITARY SHIPPER; THAT, EXCEPT UNDER CERTAIN EMERGENCIES, MUNITION CARRIERS WERE INSTRUCTED BY THE DEPARTMENT OF DEFENSE TO MAINTAIN THE ORIGINAL SEAL PROTECTION ON SEALED SHIPMENTS FROM POINTS OF ORIGIN TO DESTINATION; AND THAT, IN A CASE ALLEGEDLY INVOLVING SIMILAR CIRCUMSTANCES, B-148299, DATED AUGUST 9, 1962, WE CONCLUDED THAT TRUCKLOAD SERVICES WERE REQUIRED BY THE SHIPPER AND FURNISHED BY THE CARRIER AND CHARGES SHOULD BE SETTLED ON A TRUCKLOAD BASIS. ON DECEMBER 18, 1962, YOU WERE ADVISED THAT B 148299 REFERRED TO A SHIPMENT INVOLVING A BILL OF LADING WHICH WAS ANNOTATED "DO NOT BREAK EAL" AND, CONSEQUENTLY, DIFFERED FROM THE SHIPMENT HERE INVOLVED ON WHICH THE BILL OF LADING MERELY INDICATED THAT A SEAL WAS APPLIED.

IN SUPPORT OF YOUR REQUEST FOR REVIEW, YOU FURNISH COPIES OF DEPARTMENT OF THE ARMY REGULATIONS AR 55-157, INSPECTION REPORT (DD FORM 626), A BOOKLET PREPARED BY THE MUNITIONS CARRIERS CONFERENCE ENTITLED "RULES, REGULATIONS, GENERAL INFORMATION FOR THE SAFE TRANSPORTATION OF MUNITIONS," AND TWO LETTERS FROM THE ARMY'S ASSISTANT CHIEF OF TRANSPORTATION TO CARRIERS OF EXPLOSIVES CONCERNING VIOLATIONS OF SECURITY AND SAFETY REGULATIONS. ALL OF THESE DOCUMENTS, HOWEVER, WERE DATED AND EFFECTIVE SUBSEQUENT TO THE TIME THE SHIPMENT HERE INVOLVED WAS TRANSPORTED. THE REGULATIONS IN EFFECT AT THE TIME THE SHIPMENT MOVED--- AR 55-155, CHANGES NO. 11, JANUARY 15, 1951--- PROVIDE IN PERTINENT PART, AS FOLLOWS:

"26.C. WHEN A BILL OF LADING IS RECEIVED ON WHICH IS ANNOTATED A SEAL RECORD THEREBY INDICATING THAT THE VEHICLE TRANSPORTING A SHIPMENT OF EXPLOSIVES OR OTHER DANGEROUS OR POTENTIALLY DANGEROUS ARTICLES WAS SEALED AT ORIGIN (SEE PAR. 21AA (7), TM 55-550), AND THE SHIPMENT ARRIVES WITH SEALS BROKEN, THE RECEIVING TRANSPORTATION OFFICER WILL OBTAIN FROM THE DRIVER A WRITTEN STATEMENT OF THE CIRCUMSTANCES INVOLVED IN THE SEAL BREAKAGE. THAT STATEMENT, TOGETHER WITH A REPORT OF ANY ADDITIONAL PERTINENT DETAILS, WILL BE SENT THROUGH APPROPRIATE COMMAND CHANNELS BY ARMY TRANSPORTATION OFFICERS TO THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, WASHINGTON, 25, D.C., ATTENTION: COMMERCIAL TRAFFIC SERVICE DIVISION; AND BY AIR FORCE TRANSPORTATION OFFICERS TO THE CHIEF, TRANSPORTATION DIVISION, DIRECTOR OF MAINTENANCE, SUPPLY AND SERVICES, DEPARTMENT OF THE AIR FORCE, WASHINGTON 25, D.C.'

THESE REGULATIONS DO NOT CARRY A PROHIBITION AGAINST THE BREAKING OF SEALS ON EXPLOSIVE SHIPMENTS, ALTHOUGH WHEN SEALS WERE BROKEN IN TRANSIT THE RECEIVING OFFICER WAS REQUIRED TO OBTAIN A WRITTEN EXPLANATION FROM THE DRIVER.

IN THE LIGHT OF THE APPLICABLE REGULATIONS AND IN THE ABSENCE OF PROOF THAT SPECIFIC INSTRUCTIONS WERE ISSUED TO THE CARRIER TO THE EFFECT THAT SEALS SHOULD NOT BE BROKEN UNTIL THE TRAILER ARRIVED AT DESTINATION, TRUCKLOAD CHARGES ARE NOT ALLOWABLE ON THIS LESS-THAN TRUCKLOAD SHIPMENT. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM STATED ON A TRUCKLOAD BASIS IS SUSTAINED.

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