B-141548, MAY 13, 1960

B-141548, MAY 13, 1960

TO NORTH AMERICAN VAN LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1959, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED OCTOBER 13, 1959, CONCERNING CONTRACT NO. A-37313 M/SGT. WYATT W. BOWMAN, OUR CLAIM NO. TK-677557. YOU INDICATE THAT WHEN WE DENIED PAYMENT OF A BALANCE OF $56.80 ALLEGEDLY DUE YOU FOR THE SERVICE HERE IN QUESTION, WE OVERLOOKED THE FACT THAT THE BILL OF LADING COVERING THE SERVICE CALLED FOR EXCLUSIVE USE OF 12 FEET OF VEHICLE SPACE AND THAT SUCH USE SUBJECTS THE SHIPMENT TO A MINIMUM WEIGHT OF 4,000 POUNDS. ACCORDINGLY, IT IS YOUR CONCLUSION THAT YOUR BILLING AT 4,000 POUNDS WAS CORRECT AND IN ORDER. BUT OUR DISALLOWANCE OF YOUR CLAIM DID NOT RESULT FROM A REFUSAL TO PROTECT A MINIMUM WEIGHT OF 4,000 POUNDS. IT RESULTED FROM OUR REFUSAL TO APPROVE PAYMENT AT THE RATE USED TO COMPUTE THE CHARGES IN YOUR SUPPLEMENTAL BILL BECAUSE THE LOWER RATE AT WHICH YOU ORIGINALLY BILLED AND AT WHICH YOU WERE INITIALLY PAID APPEARED TO BE CORRECT.

THE SERVICE IN QUESTION CONSISTED OF THE TRANSPORTATION OF 2,040 POUNDS OF HOUSEHOLD GOODS FROM GREAT FALLS, MONTANA, TO GLASGOW, MONTANA, UNDER BILL OF LADING AF-9290584, IN MARCH 1959. FOR THIS SERVICE, YOU BILLED AND WERE PAID, EXCLUSIVE OF ACCESSORIAL CHARGES WHICH ARE NOT IN DISPUTE, THE SUM OF $147.20, REPRESENTING A MINIMUM CHARGE BASED ON 4,000 POUNDS AT A MILEAGE RATE OF 368 CENTS PER 100 POUNDS FOR 274 MILES. THE MILEAGE FROM GREAT FALLS TO GLASGOW IS NOT IN DISPUTE. THEREAFTER, YOU SUBMITTED YOUR SUPPLEMENTAL BILL FOR $56.80 ADDITIONAL CHARGES, BASED ON 4,000 POUNDS AT A MILEAGE RATE OF 510 CENTS PER 100 POUNDS FOR 274 MILES. THIS CLAIM WAS DISALLOWED IN OUR SETTLEMENT OF OCTOBER 13, 1959.

THE RATE OF 510 CENTS PER 100 POUNDS IS NAMED IN WESTERN STATES MOVERS' CONFERENCE TARIFF NO. 1-A, MF-I.C.C. NO. 53, AND THE RATE OF 368 CENTS PER 100 POUNDS APPEARS IN WESTERN STATES MOVERS' CONFERENCE MILITARY RATE TENDER NO. 1. NORTH AMERICAN VAN LINES IS PARTY TO BOTH THE TARIFF AND THE TENDER. THE POINTS FROM AND TO WHICH RATES IN THE MILITARY RATE TENDER APPLY ARE SAID TO BE ,IN ACCORDANCE WITH INFORMATION FILED AT LOCAL INSTALLATIONS BY CARRIERS LISTED HEREIN.' SEE FIRST REVISED TITLE PAGE AND FIRST REVISED PAGE A OF THE TENDER. IT IS ALSO NOTED THAT ON SIXTH REVISED PAGE 1 OF THE TENDER, A REFERENCE NOTE INDICATES THAT THE TENDER APPLIES ON INTERSTATE TRAFFIC ONLY,"EXCEPT WHERE IT HAS BEEN ADOPTED FOR INTRASTATE USE AND APPLICATION WITHIN A STATE OR STATES BY THE FILING OF INDIVIDUAL TENDERS MAKING REFERENCE HERETO.'

ON THE FACE OF BILL OF LADING AF-9290584, THE FOLLOWING NOTATION APPEARS: "AT RATES PROVIDED FOR IN WSMC MILITARY RATE TARIFF 1: WSMC MONTANA INTRASTATE SPECIAL.' THE INDICATION IS THAT YOU OR YOUR AGENT, WESTERN STATES MOVERS' CONFERENCE, HAD ON FILE WITH MALMSTROM AIR FORCE BASE AN INDIVIDUAL TENDER AGREEING TO PROTECT THE MILITARY TENDER NO. 1 RATES ON MONTANA INTRASTATE TRAFFIC. ALTERNATIVELY, IF YOU HAD NO TENDER ON FILE, YOUR ACCEPTANCE, WITHOUT EXCEPTION, OF THE BILL OF LADING HEARING THE ABOVE-QUOTED NOTATION, APPEARS TO HAVE CONSTITUTED AN AGREEMENT TO PROTECT THE RATES IN THE TENDER.

IN THESE CIRCUMSTANCES, THE CONCLUSION IS WARRANTED THAT THE AIR FORCE CONTRACTED FOR THIS SERVICE WITH YOUR COMPANY AT THE RATE SPECIFIED IN WESTERN STATES MOVERS' CONFERENCE MILITARY RATE TENDER NO. 1 AND THAT YOU ARE NOT ENTITLED TO CHARGES AT THE RATE SPECIFIED IN WESTERN STATES MOVERS' CONFERENCE TARIFF NO. 1-A. THE SETTLEMENT IN QUESTION WAS CONSISTENT WITH THIS VIEW AND IT IS, ACCORDINGLY, SUSTAINED.