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B-138944, JAN. 24, 1961

B-138944 Jan 24, 1961
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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 1. WE HAVE REVIEWED THE SETTLEMENTS AND HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO ALLOW THE CLAIMS ON BILLS NOS. 99-007. THERE IS NOTHING IN OUR RECORDS TO SHOW THAT THE EXCLUSIVE USE SERVICE REQUESTED FOR THE SHIPMENTS MOVING DURING MAY 1956. WAS ACTUALLY PERFORMED. INASMUCH AS WE ARE DENYING YOUR CLAIMS ON BILLS NOS. 99-001 AND 99-011 WE WILL ANSWER THE POINTS WHICH YOU RAISED IN YOUR LETTER OF JUNE 1. YOU STATE THAT IT IS A WIDELY ACCEPTED AND LONG-STANDING PRACTICE OF THE GOVERNMENT TO ISSUE ITS OWN BILLS OF LADING AND THAT THEREFORE IT IS UNREASONABLE TO HOLD CARRIERS LIABLE FOR THE FAILURE OF A TRANSPORTATION OFFICER TO ISSUE A BILL OF LADING IN ACCORDANCE WITH REGULATIONS.

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B-138944, JAN. 24, 1961

TO CENTRAL TRUCK LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1960, WHEREIN YOU REQUESTED REVIEW OF OUR SETTLEMENT CERTIFICATES DATED JANUARY 22, 1960 (TK 677213), JANUARY 26, 1960 (TK 677212), FEBRUARY 15, 1960 (2) (TK 677249, TK 677250), AND MARCH 17, 1960 (TK 671946) WHICH RESPECTIVELY DISALLOWED YOUR CLAIMS FOR $160.90 ON BILL NO. 99-007, $1,253 ON BILL NO. 99-011, $198.76 ON BILL NO. 99-010, $263.61 ON BILL NO. 99-001, AND $193.37 ON BILL NO. 99-009. EACH CLAIM REPRESENTS ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR EXCLUSIVE USE OF VEHICLE SERVICE ON SHIPMENTS OF GOVERNMENT PROPERTY TRANSPORTED DURING 1956 AND 1957.

WE HAVE REVIEWED THE SETTLEMENTS AND HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO ALLOW THE CLAIMS ON BILLS NOS. 99-007, 99 010, AND 99-009 ON THE BASIS OF EXCLUSIVE-USE CHARGES, IF OTHERWISE PROPER. THE ALLOWABLE CLAIMS REPRESENT SHIPMENTS MOVING UNDER GOVERNMENT BILLS OF LADING NO. AF 6965244 IN FEBRUARY 1957, NO. AF 7305753 IN AUGUST 1957, AND NO. AF 5281553 IN MAY 1957. SINCE, HOWEVER, THERE IS NOTHING IN OUR RECORDS TO SHOW THAT THE EXCLUSIVE USE SERVICE REQUESTED FOR THE SHIPMENTS MOVING DURING MAY 1956, UNDER GOVERNMENT BILL OF LADING NO. N 8220341 (99-001), AND DURING JULY 1957, UNDER GOVERNMENT BILL OF LADING WY 6920325 (99-011), WAS ACTUALLY PERFORMED, WE MUST SUSTAIN THE PREVIOUS DISALLOWANCE ON THESE TWO CLAIMS. INASMUCH AS WE ARE DENYING YOUR CLAIMS ON BILLS NOS. 99-001 AND 99-011 WE WILL ANSWER THE POINTS WHICH YOU RAISED IN YOUR LETTER OF JUNE 1, 1960.

YOU STATE THAT IT IS A WIDELY ACCEPTED AND LONG-STANDING PRACTICE OF THE GOVERNMENT TO ISSUE ITS OWN BILLS OF LADING AND THAT THEREFORE IT IS UNREASONABLE TO HOLD CARRIERS LIABLE FOR THE FAILURE OF A TRANSPORTATION OFFICER TO ISSUE A BILL OF LADING IN ACCORDANCE WITH REGULATIONS. THE FACT THAT IT IS THE PRACTICE OF THE GOVERNMENT TO PREPARE ITS OWN BILLS OF LADING DOES NOT RELIEVE MOTOR CARRIERS FROM THE DUTY IMPOSED ON THEM BY SECTIONS 20 (11) AND 319 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11) AND 319, OF ISSUING, AS DISTINGUISHED FROM PREPARING, APPROPRIATE BILLS OF LADING. WHEN BILLS OF LADING ARE PREPARED BY SHIPPERS, MOTOR CARRIERS HAVE THE OBLIGATION OF REFRAINING FROM EXECUTING THOSE WHICH LAWFULLY CANNOT BE COMPLIED WITH OR WHICH CONTAIN CONFLICTING PROVISIONS. SEE EXPOSITION COTTON MILLS V. SOUTHERN RY.CO., 234 I.C.C. 441, 442; SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY R.CO., 274 I.C.C. 245, 247. WHILE GOVERNMENT BILLS OF LADING ARE ESPECIALLY DESIGNED FOR USE BY THE GOVERNMENT, THERE IS NOTHING ON THEM WHICH RELIEVES CARRIERS OR THE GOVERNMENT FROM OBSERVING THE CONDITIONS IMPOSED BY EXCLUSIVE-USE PROVISIONS IN A TARIFF. CONCERNING TARIFF REQUIREMENTS FOR AN ANNOTATION EVIDENCING A REQUEST FOR EXCLUSIVE-USE SERVICE, IT IS NOT OUR POLICY TO REQUIRE STRICT ADHERENCE TO THE ANNOTATION FORM AS PRESCRIBED, BUT RATHER WE REQUIRE ONLY THAT THE ANNOTATION APPEARING ON THE FACE OF THE BILL OF LADING BE IN SUBSTANTIAL COMPLIANCE WITH THE PRESCRIBED FORM.

YOU ALSO STATE THAT THE CONSIGNEE'S SIGNATURE ON THE BILL OF LADING CERTIFYING AS TO THE RECEIPT OF THE SHIPMENT PROVIDES SUFFICIENT PROOF THAT EXCLUSIVE-USE SERVICE WAS PERFORMED. THE CERTIFICATION TO WHICH YOU REFER MERELY RECITES WHAT PROPERTY WAS RECEIVED AT DESTINATION, THE CONDITION OF SUCH PROPERTY AND WHETHER DELIVERY WAS BY THE GOVERNMENT OR ITS AGENT. THIS CERTIFICATION DOES NOT INDICATE WHAT SERVICES WERE OR WERE NOT ACCORDED THE SHIPMENT.

FINALLY, YOU STATE THAT OUR DISALLOWANCES WERE CONTRARY TO SECTION 3065.10 OF OUR "GAO POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES" (5 GAO 3065.10) WHICH PROVIDES, IN PERTINENT PART, "WHERE ACCESSORIAL OR SPECIAL SERVICES ARE SHOWN AS ORDERED BUT WERE NOT FURNISHED, THE BILL OF LADING SHALL BE SO ANNOTATED.' YOUR LETTER OF JUNE 1, 1960, CORRECTLY CITED SECTION 3065.10 AS A PART OF TRANSMITTAL SHEET NO. 5-4, BUT YOU OVERLOOKED THE EFFECTIVE DATE OF TRANSMITTAL SHEET NO. 5- 4, NAMELY, OCTOBER 12, 1959. ALL OF THE SHIPMENTS HERE CONSIDERED MOVED IN 1956 AND 1957, WELL BEFORE TRANSMITTAL SHEET NO. 5-4 BECAME EFFECTIVE. THE PROVISIONS OF SECTION 3065, FACTUAL SUPPORT OF CHARGES BILLED, WHICH WERE APPLICABLE IN 1956 AND 1957, CONTAINED NO LANGUAGE SUCH AS THAT QUOTED ABOVE AND IN YOUR LETTER OF JUNE 1, 1960. YOU MAY ALSO NOTE THAT THE GOVERNMENT BILLS OF LADING NOW IN USE GIVE EFFECT TO THE REQUIREMENT OF AN ANNOTATION WHEN ACCESSORIAL OR SPECIAL SERVICES ARE SHOWN AS ORDERED BUT NOT FURNISHED, BY INSTRUCTION NO. 7 APPEARING ON THE REVERSE SIDE OF THE BILL OF LADING. BILLS OF LADING FORMS FORMERLY IN USE, SUCH AS THE ONES UNDER WHICH THE SUBJECT SHIPMENTS MOVED, DID NOT INCORPORATE SUCH AN INSTRUCTION NOR DID THEY PROVIDE A SPACE FOR ANNOTATIONS RELATING TO THE ORDERING OF SPECIAL SERVICES AS IS NOW FOUND ON THE REVERSE SIDE OF THE NEWER BILLS.

WE TRUST THAT THE FOREGOING INFORMATION HAS ANSWERED THE QUESTIONS RAISED BY YOUR LETTER OF JUNE 1, 1960. AS STATED, WE HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO ALLOW YOUR CLAIM ON BILLS NOS. 99-007, 99-010, AND 99-009. THE SETTLEMENTS ON THESE THREE CLAIMS SHOULD REACH YOU IN DUE COURSE.

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