B-130525, MAR. 19, 1965

B-130525, MAR. 19, 1965

TO A. B. JAMES FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 12, 1964, FILE NO. N 706/52, UC-49A, 185361, REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF JULY 3, 1958, B-130525, AFFIRMED NOVEMBER 24, 1958, AND REAFFIRMED MARCH 23, 1959. IN THE DECISION WE SUSTAINED THE ACTION OF OUR TRANSPORTATION DIVISION IN DEDUCTING $41.97 AND $65.94 FROM YOUR UNPAID BILLS TO RECOVER OVERCHARGES PAID FOR THE TRANSPORTATION SERVICES RENDERED UNDER GOVERNMENT BILLS OF LADING N-30484470 AND N 17983371.

YOU NOW INVITE ATTENTION TO THE DECISION OF THE NINTH CIRCUIT COURT OF APPEALS IN UNITED STATES V. FRANCIS, 320 F.2D 191 (1963), WHICH YOU CONTEND SUSTAINED THE TRIAL COURT'S FINDING THAT AN ANNOTATION ON THE BILLS OF LADING--- SHOWING THE SIZE EQUIPMENT ORDERED AND FURNISHED--- CONSTITUTED A REQUEST FOR EXCLUSIVE USE.

IN THE CASE CITED, THE COURT OF APPEALS STATED ON PAGE 199:

"BASED ON THIS TESTIMONY, WHILE SOME QUESTIONS EXIST, IT CANNOT BE SAID THAT THE FINDING OF THE DISTRICT COURT WITH REFERENCE TO ITEMS 11 AND 11A, THAT THE BILL OF LADING ON ITS FACE DEMONSTRATED A REQUEST FOR EXCLUSIVE USE, IS CLEARLY ERRONEOUS.'

THUS, IN SUSTAINING THE TRIAL COURT, THE COURT OF APPEALS CONSIDERED THE EVIDENCE AND TESTIMONY FURNISHED AT THE TRIAL RELATING TO THE FACTUAL CIRCUMSTANCES UNDER WHICH THE SHIPMENTS IN THAT SUIT WERE MADE AND DID NOT BASE ITS OPINION SOLELY ON THE BILL OF LADING NOTATION. IN FACT, THE COURT STATED THAT SOME QUESTIONS STILL EXISTED AND INFERRED THAT A DIFFERENT RESULT MIGHT HAVE BEEN REACHED HAD THE FACTUAL CIRCUMSTANCES BEEN MORE FULLY EXPLAINED.

IT IS OUR VIEW THAT IT IS NOT UNUSUAL FOR A SHIPPER TO INDICATE THE APPROXIMATE SIZE OR THE NUMBER OF VEHICLES NECESSARY TO TRANSPORT A SHIPMENT, AND THAT SUCH A SHOWING IN ITSELF DOES NOT CONSTITUTE A DEMAND FOR EXCLUSIVE USE. THE RECORD ON THE SHIPMENTS INVOLVED IN YOUR CLAIMS DOES NOT SHOW THAT YOUR COMPANY IN FACT DID TRANSPORT THE SHIPMENTS ON EQUIPMENT OF THE SIZES SHOWN ON THE BILLS OF LADING.

THE SITUATION IS SIMILAR TO THAT CONSIDERED IN OUR DECISION B 131798, DATED FEBRUARY 5, 1965, CONCERNING YOUR FILE REFERENCE N 705/52, UC- 168,180247, AND THE CONCLUSIONS STATED THEREIN ARE APPROPRIATE FOR APPLICATION TO THE PRESENT CASE. A COPY OF THE REFERRED-TO DECISION IS ENCLOSED.

ACCORDINGLY, WE AGAIN CONCLUDE THAT WE WOULD NOT BE WARRANTED IN MODIFYING THE DEDUCTION ACTION TAKEN ON THESE SHIPMENTS, WHICH WERE MADE ALMOST EIGHT YEARS AGO.