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B-143469, MAR. 14, 1963

B-143469 Mar 14, 1963
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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18. WE HAVE GIVEN CAREFUL CONSIDERATION TO YOUR CONTENTION THAT "EACH TRAILER (SHIPMENT) SHOULD BE ASSESSED A TRUCKLOAD OR VOLUME MINIMUM WEIGHT AND CHARGE. " SINCE YOU STATE THE CONDITIONS IN THIS CASE ARE PARALLEL TO THOSE EXPRESSED IN AN INFORMAL OPINION OF OCTOBER 4. THE INFORMAL OPINION SEEMS TO BE CONCERNED WITH WHETHER BILLS OF LADING WV-8562070 AND WV-8562071 WERE PROPERLY CROSS- REFERENCED TO SHOW THAT THEY WERE TENDERED AND RECEIVED AS A SINGLE VOLUME SHIPMENT OR AS TWO SEPARATE AND DISTINCT MOVEMENTS. SINCE THE COMMISSION SAID "IF THE SHIPPER DESIRED THE MOVEMENT TO BE A SINGLE SHIPMENT THEN A CLEAR AND UNEQUIVOCAL CROSS REFERENCING OF THE BILLS OF LADING SHOULD HAVE BEEN ACCOMPLISHED.

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B-143469, MAR. 14, 1963

TO THE STRICKLAND TRANSPORTATION COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1962, FILE STC CLAIM NO. GAO-5187, WITH ENCLOSURES, ACKNOWLEDGED OCTOBER 29, 1962, WHICH REQUESTS REVIEW OF OUR DECISION OF OCTOBER 18, 1960, B-143469. THIS DECISION SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $439.54, ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE UNDER SUPPLEMENTAL BILL NO. 5393-A FOR THE TRANSPORTATION OF TWO SHIPMENTS OF "ELECTRICAL INSTRUMENTS.' THE SHIPMENTS MOVED FROM WARNER ROBINS AIR FORCE BASE, GEORGIA, TO THE CONSOLIDATED VULTEE AIRCRAFT CORPORATION, BENBROOK, TEXAS, UNDER GOVERNMENT BILLS OF LADING NOS. AF-3463970 AND AF-3463977, ISSUED JULY 27, 1954.

WE HAVE GIVEN CAREFUL CONSIDERATION TO YOUR CONTENTION THAT "EACH TRAILER (SHIPMENT) SHOULD BE ASSESSED A TRUCKLOAD OR VOLUME MINIMUM WEIGHT AND CHARGE," SINCE YOU STATE THE CONDITIONS IN THIS CASE ARE PARALLEL TO THOSE EXPRESSED IN AN INFORMAL OPINION OF OCTOBER 4, 1962, BY THE INTERSTATE COMMERCE COMMISSION. THE INFORMAL OPINION SEEMS TO BE CONCERNED WITH WHETHER BILLS OF LADING WV-8562070 AND WV-8562071 WERE PROPERLY CROSS- REFERENCED TO SHOW THAT THEY WERE TENDERED AND RECEIVED AS A SINGLE VOLUME SHIPMENT OR AS TWO SEPARATE AND DISTINCT MOVEMENTS, SINCE THE COMMISSION SAID "IF THE SHIPPER DESIRED THE MOVEMENT TO BE A SINGLE SHIPMENT THEN A CLEAR AND UNEQUIVOCAL CROSS REFERENCING OF THE BILLS OF LADING SHOULD HAVE BEEN ACCOMPLISHED, AND THE SEALING OF THE VEHICLES OMITTED.' TO FURTHER SHOW THAT THE TWO BILLS OF LADING WERE TWO SEPARATE SHIPMENTS RATHER THAN A SINGLE VOLUME SHIPMENT, THE COMMISSION EXPLAINED, "THE ACT OF SEALING THE VEHICLES CONSTITUTED A MANIFEST INTENT THAT THE ARTICLES BE TRANSPORTED AS TWO SEPARATE AND DISTINCT MOVEMENTS.'

OUR RECORD HERE SUPPORTS THE VIEW THAT THE CONDITIONS IN THIS CASE AND THE CASE DISCUSSED BY THE COMMISSION ARE DEFINITELY NOT PARALLEL, SINCE THE ELECTRICAL INSTRUMENT SHIPMENTS TO BENBROOK, TEXAS, DO NOT PRESENT THE PROBLEM OF WHETHER THERE WAS PROPER CROSS-REFERENCING OF THE BILLS OF LADING TO ASCERTAIN IF A VOLUME SHIPMENT RATHER THAN TWO SEPARATE AND DISTINCT MOVEMENTS WERE TENDERED AND RECEIVED BY YOU. THE PROBLEM APPARENTLY IS TO DETERMINE THE APPLICABLE RATE FOR THE TWO SHIPMENTS OF ELECTRICAL INSTRUMENTS. BOTH PARTIES SEEM TO AGREE THAT THE PERTINENT SCALE OF RATES IS PUBLISHED IN THE SOUTHERN MOTOR CARRIERS RATE CONFERENCE, AGENT'S FREIGHT TARIFF NO. 505, WHICH IS MADE SUBJECT TO ALL THE TERMS AND PROVISIONS OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-2. SECTION 2 (D) OF RULE 13 OF THIS CLASSIFICATION PROVIDES FOR THE APPLICATION OF LESS-THAN-TRUCKLOAD RATINGS ON SHIPMENTS IN QUANTITIES LESS THAN THE MINIMUM WEIGHT SPECIFIED FOR TRUCKLOAD OR VOLUME SHIPMENTS. UNDER THE PROVISIONS OF THE CLASSIFICATION, BOTH SHIPMENTS, WEIGHING 8,355 AND 10,549 POUNDS, WERE BELOW THE TRUCKLOAD MINIMUM WEIGHT (22,000 POUNDS) AND, THEREFORE, UNDER RULE 13 WERE ENTITLED TO THE LESS-THAN-TRUCKLOAD RATINGS. FURTHERMORE, YOU HAVE NOT FURNISHED ANY INFORMATION TO SHOW THAT INSTRUCTIONS WERE ISSUED THAT THE SEALS SHOULD NOT BE BROKEN OR REMOVED UNTIL THE VEHICLES ARRIVED AT DESTINATION. THE COURTS HAVE HELD THAT THE BURDEN IS AT ALL TIMES ON THE CARRIER TO ESTABLISH THAT IT IS LAWFULLY ENTITLED TO THE CHARGES CLAIMED IN ITS ORIGINAL BILL, WHICH WAS PAID UPON PRESENTATION AND BEFORE AUDIT, PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66. UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R.CO., 355 U.S. 253; BENJAMIN MOTOR EXPRESS, INC. V. UNITED STATES, 251 F.2D 547; AND UNITED STATES V. MISSOURI PACIFIC R.CO., 250 F.2D 805, REHEARING DENIED 254 F.2D 598, CERTIORARI DENIED 358 U.S. 821.

ACCORDINGLY, WE HAVE FOUND NOTHING REQUIRING MODIFICATION OF OUR PREVIOUS DECISION WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL CHARGES OF $439.54; THEREFORE, THE DECISION OF OCTOBER 18, 1960, B-143469, IS AFFIRMED.

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