B-156552, OCT. 13, 1965

B-156552, OCT. 13, 1965

TO MILNE TRUCK LINES, INC.:

REFERENCE IS MADE TO YOUR SEVEN LETTERS, ALL DATED APRIL 12, 1965, AND SUBSEQUENT CORRESPONDENCE, REQUESTING REVIEW OF SETTLEMENTS WHICH YOU INDICATE DISALLOWED YOUR SUPPLEMENTAL BILLS NO. 369 (OUR TK 737773), NO. 370 (OUR TK-738216), NO. 368 (OUR TK-738221), NO. 366 (OUR TK-740135), NO. 367 (OUR TK-753064), NO. 372 (OUR TK-774294), AND NO. 371 (OUR TK-784237), ON 11 SHIPMENTS OF MILITARY IMPEDIMENTA MOVING BETWEEN MARINE CORPS AUXILIARY STATION, YUMA, ARIZONA, AND MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, DURING THE YEARS 1960 AND 1961.

EACH OF THE BILLS OF LADING HERE INVOLVED BEARS THE ANNOTATION:

"EXCLUSIVE USE OF VEHICLES REQUESTED BY THE GOVT.

I CERTIFY THAT EXCLUSIVE USE OF (*) VEHICLES WAS FURNISHED FROM

MCAAS, YUMA, ARIZ. TO; MCAS, EL TORO, CALIF.

(OR MCAS, EL TORO, TO; MCAAS, YUMA, ARIZ.)

(DESTINATION CARRIER) (SIGNATURE OF AGENT) (DATE)"

* NUMBER OF VEHICLES INSERTED.

IN ADDITION, FIVE BILLS OF LADING--- (A-1453995, A-1453996, A 1463464--- TK-737773, YOUR BILL NO. 369); (A-1453977 AND A-1454148--- TK-738221, YOUR BILL NO. 368/--- BEAR A SECOND ANNOTATION:

"SPECIAL MILITARY SERVICE WAS REQ. AS FOLLOWS;

EXCLUSIVE USE; TIME AND DATE ----- PER SHIP. OFFICER -----

REC. TIME AND DATE ----------------- PER REC. OFFICER"

AND TWO BILLS OF LADING--- (B-1521223--- TK-784237, YOUR BILL NO. 371 AND A-2489686--- TK-753064, YOUR BILL NO. 367/--- BEAR ANNOTATION AS FOLLOWS:

"SPECIAL MILITARY SERVICE WAS REQUESTED

TIME OF RECEIPT BY CARRIER -------------

--------------- DATE -------------------

"TIME OF DELIVERY ---------------------

DATE -----------------------------------

"VEHICLES WERE FULLY LOADED TO THE EXTENT THAT NO MORE OF THE SAME ARTICLE IN THE SAME SHIPPING FORM COULD HAVE BEEN LOADED.

"NO OVERFLOW SHIPPED.'

INSPECTION OF THE 11 BILLS OF LADING SHOWS SOME VARIATIONS AND LACK OF EXECUTION IN THE SPACES PROVIDED FOR THE DESTINATION CARRIER'S AGENT AND THE SHIPPING OFFICER'S SIGNATURE; ALSO AS TO TIME AND DATE OF RECEIPT AND DELIVERY.

FOR THE SERVICES HERE INVOLVED, YOU CLAIMED AND WERE PAID CHARGES WHICH, PRESUMABLY, WERE COMPUTED ON THE BASIS OF THE PROVISIONS OF INTERSTATE FREIGHT CARRIERS CONFERENCE, INC. (IFCC) AGENT-S, LOCAL AND JOINT FREIGHT TARIFF NO. 1-E, MF-I.C.C. NO. 7, ITEM 1440, ORIGINAL PAGE 156-A, READING IN PART:

"* * * MINIMUM CHARGE FOR EXCLUSIVE USE OF VEHICLE AND SPECIAL SERVICES (SUBJECT TO NOTE 1)

NOTE 1: THE PROVISIONS OF THIS ITEM WILL NOT APPLY ON TRAFFIC MOVING FOR THE MILITARY SERVICES OF THE U.S. GOVERNMENT. FOR PROVISIONS TO BE APPLIED IN CONNECTION WITH TRAFFIC FOR THE MILITARY SERVICES SEE ITEM 1545 HEREIN.'

AND ITEM 1545, ORIGINAL PAGE 159-A, READING IN PART:

"SPECIAL MILITARY SERVICE (SUBJECT TO NOTE 1)

"DEFINITION:

SPECIAL MILITARY SERVICE IS A SERVICE WHICH PROVIDES A MORE EXPEDITIOUS HANDLING AND DELIVERY OF GOVERNMENT FREIGHT THAN AVAILABLE UNDER TARIFFS OR TO THE PUBLIC GENERALLY, AND GUARANTEES THE SEPARATION AND SEGREGATION OF FREIGHT FOR PROTECTION AGAINST DAMAGE, SCRUTINY AND/OR PILFERAGE.

"TERMS AND CONDITIONS:

"ANNOTATION OF REQUIRED SERVICE:

"BILLS OF LADING ISSUED FOR "SPECIAL MILITARY SERVICE" WILL BEAR THE FOLLOWING NOTATIONS:

"SPECIAL MILITARY SERVICES WAS REQUESTED AS FOLLOWS:

TIME AND DATE --------------------------------------------

SIGNATURE OF SHIPPING OFFICER

"SPECIAL MILITARY SERVICE WAS RECEIVED:

TIME AND DATE RECEIVED -----------------------------------

SIGNATURE OF RECEIVING OFFICER"

"BASIS OF CHARGES:

IF THE BILL OF LADING INVOLVED IS ANNOTATED AS ABOVE, AND IF ONE OR MORE OF THE SERVICES INDICATED HEREIN ARE FURNISHED, CHARGES FOR SUCH SHIPMENT WILL BE IN ACCORDANCE WITH THE OLLOWING:

THE CHARGE FOR EACH SUCH VEHICLE WILL BE THE CHARGE FOR THE ACTUAL WEIGHT, OR THE AUTHORIZED MINIMUM WEIGHT, WHICHEVER IS GREATER, AT THE RATES APPLICABLE, SUBJECT TO MINIMUM CHARGE COMPUTED ON A WEIGHT OF 15,000 POUNDS AT THE FIRST CLASS LTL (SCALE 1) RATE AS PROVIDED HEREIN.'

INSPECTION OF THE BILLS OF LADING SHOWS THAT BILL OF LADING A 2489686 (TK -753064) IS THE ONLY ONE ANNOTATED IN ACCORDANCE WITH THE REQUIREMENTS STATED ABOVE, ALTHOUGH BILLS OF LADING A-1453995, A 1453996, A-1463464 (TK -737773) AND A-1453977, A-1454148 (TK-738221) ARE ANNOTATED SUBSTANTIALLY IN ACCORDANCE WITH TARIFF REQUIREMENTS.

IN THE AUDIT OF THE PAYMENT VOUCHERS HERE INVOLVED, IT WAS DETERMINED THAT YOU WERE A PARTY TO IFCC U.S. GOVERNMENT QUOTATION I.C.C. NO. 1, WHICH PROVIDED IN ITEM 130--- PUBLISHED ON 1ST REVISED PAGE 12--- A BASIS OF CHARGES FOR "SPECIAL MILITARY SERVICE" READING AS FOLLOWS:

"IF THE BILL OF LADING INVOLVED IS ANNOTATED AS ABOVE, AND IF ONE OR MORE OF THE SERVICES INDICATED HEREIN ARE FURNISHED, PAYMENT WILL BE IN ACCORDANCE WITH THIS TENDER SUBJECT TO NOTE 1.

MINIMUM CHARGE--- 15,000 POUNDS AT THE FIRST CLASS LTL (SCALE 1) RATE APPLICABLE IN INTERSTATE FREIGHT CARRIERS CONFERENCE TARIFF 1-E, MF-I.C.C. NO. 7.

"NOTE 1: CHARGES UNDER THIS TENDER SHALL BE THE MINIMUM CHARGES FOR SUCH SHIPMENTS. WHERE CHARGES ARE HIGHER WHEN COMPUTED AT THE OTHERWISE APPLICABLE RATE AND MINIMUM WEIGHT (IF ANY) FOR THE ENTIRE CONSIGNMENT, INCLUDING MULTIPLE-LOAD SHIPMENTS, SUCH HIGHER CHARGE WILL APPLY.'

IT WILL BE NOTED THAT ITEM 130 PROVIDES A CHARGE PER SHIPMENT, INCLUDING MULTIPLE-LOAD SHIPMENTS AS DISTINGUISHED FROM A CHARGE FOR EACH VEHICLE AS IN ITEM 1545, ORIGINAL PAGE 159-A OF TARIFF 1-E. FURTHER EXAMINATION OF QUOTATION I.C.C. NO. 1 REVEALS THAT ITEM 390, PUBLISHED ON 2ND REVISED PAGE 16-A, PROVIDED, EFFECTIVE MARCH 4, 1960, A SPECIFIC RATE ON "MILITARY IMPEDIMENTA" MOVING BETWEEN EL TORO MARINE BASE, CALIFORNIA,AND MARINE CORPS AUXILIARY AIR STATION, YUMA, ARIZONA, OF $1.42 PER 100 POUNDS, MINIMUM WEIGHT 20,000 POUNDS PER TRUCKLOAD. SINCE THE COMPUTATION ON SUCH BASIS PROVIDES A HIGHER CHARGE THAN THE MINIMUM CHARGE BASIS SHOWN IN ITEM 130, SUCH CHARGE BECOMES THE APPLICABLE CHARGE UNDER THE PROVISIONS OF NOTE 1 QUOTED ABOVE. OUR NOTICES OF OVERCHARGE WERE PREDICATED ON THAT BASIS.

EFFECTIVE JUNE 13, 1961, ITEM 130 ON 2ND REVISED PAGE 12 WAS CANCELLED, LEAVING IN EFFECT NO PROVISIONS FOR CHARGES FOR "SPECIAL MILITARY SERVICE.' INSTEAD, THE READER IS REFERRED TO "ITEM 85," WHICH IS PUBLISHED ON ORIGINAL PAGE 10-A, EFFECTIVE THE SAME DAY (JUNE 13, 1961), AND PROVIDES THE BASIS FOR CHARGES FOR EACH VEHICLE USED IN TRANSPORTING SHIPMENTS REQUIRING ,EXCLUSIVE USE OF VEHICLE.' IN THIS SITUATION, WHEN CONSIDERING THE CARRIER'S ORIGINAL PROTESTS, IT WAS FOUND THAT BECAUSE BILL OF LADING B-1521223 (TK-784237), YOUR BILL NO. 371, WAS DATED JUNE 24, 1961, THE CARRIER WAS DUE THE AMOUNT CLAIMED. THEREFORE, CERTIFICATE OF SETTLEMENT WAS ISSUED ALLOWING THE CLAIM IN THE FULL AMOUNT OF $231. IN THESE CIRCUMSTANCES, IT SEEMS THAT YOU HAVE ALREADY BEEN PAID THE AMOUNT YOU CLAIM AND ARE DUE NOTHING FURTHER ON THIS ITEM.

WITH RESPECT TO BILL OF LADING B-1506498 (TK-774294), YOUR BILL NO. 372, OUR RECORD SHOWS THAT THE GOVERNMENT IS DUE $115.50 ON THE SAID BILL OF LADING DATED MAY 12, 1961, COVERING THE MOVEMENT OF "3 T/L MILITARY IMPEDIMENTA" FROM EL TORO MARINE CORPS AIR STATION, CALIFORNIA, TO MARINE CORPS AUXILIARY AIR STATION, YUMA, ARIZONA, ON WHICH EXCLUSIVE USE OF VEHICLES WAS REQUESTED BY THE SHIPPER WITH A CERTIFICATE OF SERVICE SIGNED BY YOUR AGENT. THE BILL OF LADING IS ANNOTATED ,IFCC TENDER NO. 1 ITEM 390" IN THE SPACE PROVIDED FOR "TARIFF OR SPECIAL RATE AUTHORITIES.' FOR THE SERVICES HERE INVOLVED, YOU CLAIMED AND WERE PAID CHARGES COMPUTED UNDER THE PROVISIONS OF IFCC TARIFF NO. 1-E, ITEM 1545. OUR ORIGINAL AUDIT WAS PREDICATED ON THE BASIS OF IFCC U.S. GOVERNMENT QUOTATION I.C.C. NO. 1, ITEM 390, AS SHOWN ON THE BILL OF LADING, RESULTING IN A DEDUCTION OF $115.50 FROM MONIES OTHERWISE DUE. THEREAFTER, YOU PRESENTED YOUR SUPPLEMENTAL BILL NO. 372, DATED JUNE 16, 1964, IN THE AMOUNT OF $115.50. THE RECORD SHOWS THAT, PRESUMABLY THROUGH INADVERTENCE, THE SAID AMOUNT WAS CERTIFIED FOR PAYMENT BY CERTIFICATE OF SETTLEMENT DATED APRIL 8, 1965. THUS, YOU HAVE BEEN OVERPAID ON THIS SHIPMENT AND THE AMOUNT OF THE OVERCHARGE $115.50 SHOULD BE REFUNDED.

THE EXCLUSIVE USE OF VEHICLE AND SPECIAL SERVICES PROVISIONS IN ITEM 1440 OF IFCC TARIFF 1-E, WERE EXCLUDED BY NOTE 1 FROM APPLICATION ON MILITARY TRAFFIC AND THE READER WAS REFERRED TO ITEM 1545 OF THE SAME TARIFF FOR THE MINIMUM CHARGE FOR SPECIAL MILITARY SERVICE, WHICH APPLIED ON EACH VEHICLE USED. AT THE SAME TIME YOU ALSO WERE A PARTY TO IFCC U.S. GOVERNMENT QUOTATION I.C.C. NO. 1, WHICH PROVIDED IN ITEM 130 THEREOF THE MINIMUM CHARGE "PER SHIPMENT," INCLUDING MULTIPLE-LOAD SHIPMENTS, SUCH AS HERE INVOLVED, AND NOTE 1 IN ITEM 130 PROVIDED:

"WHERE CHARGES ARE HIGHER WHEN COMPUTED AT THE OTHERWISE APPLICABLE RATE AND MINIMUM WEIGHT (IF ANY) FOR THE ENTIRE CONSIGNMENT, INCLUDING MULTIPLE -LOAD SHIPMENTS, SUCH HIGHER CHARGE SHALL LY.'

IN THIS CONNECTION, IT IS ALSO FOR NOTING THAT ITEM 390 OF QUOTATION I.C.C. NO. 1 PROVIDED A SPECIFIC COMMODITY RATE ON "MILITARY IMPEDIMENTA" MOVING BETWEEN THE SPECIFIC POINTS HERE INVOLVED OF $1.42 PER 100 POUNDS, SUBJECT TO A MINIMUM WEIGHT OF 20,000 POUNDS PER TRUCKLOAD, AND THIS RATE PRODUCES CHARGES HIGHER THAN THE MINIMUM CHARGE ON MULTIPLE-LOAD SHIPMENTS PROVIDED IN ITEM 130 THEREOF. THEREFORE, SUCH HIGHER CHARGES APPEAR TO BE THE ONLY APPLICABLE CHARGES ON ALL OF THE SHIPMENTS HERE INVOLVED, EXCEPT THE SHIPMENT COVERED BY BILL OF LADING NO. B-1521223, DATED JUNE 24, 1961 (TK 784237).

WHILE YOU CITE THE T.I.M.E. AND GARRETT FREIGHT LINES CASES IN REQUESTING REVIEW OF THIS MATTER, YOU SEEM TO OVERLOOK THE FACT THAT GOVERNMENT RATE TARIFF NO. 1, IN ITEM 130, ALSO PROVIDES A CHARGE BASIS FOR "SPECIAL MILITARY SERVICES" WHICH PRODUCES CHARGES CONSIDERABLY LOWER THAN THE SO- CALLED EXCLUSIVE-USE BASIS FOR WHICH YOU CLAIM. IN ADDITION TO AN ASSURANCE OF EXCLUSIVE USE, THE SPECIAL MILITARY SERVICES PROVISION HAS OTHER TERMS AND CONDITIONS FURNISHING ASSURANCES GOING BEYOND THOSE FOUND IN THE EXCLUSIVE-USE TARIFF PROVISIONS. FOR EXAMPLE, WHILE EXCLUSIVE-USE PROVISIONS GENERALLY DO NOT CONTAIN ANY SPECIFIC ASSURANCE AS TO EXPEDITED TRANSPORTATION, ITEM 130 STATES THAT SHIPMENTS ACCORDED SPECIAL MILITARY SERVICE "WILL BE TRANSPORTED FASTER THAN WITH REASONABLE DISPATCH TO MEET SPECIFIC PICKUP OR DELIVERY TIMES OR CONDITIONS.' CONSIDERING THE FACT THAT ITEM 130 PROVIDES FOR EXCLUSIVE-USE SERVICE WITH ADDITIONAL SERVICE BEING ASSURED BY THE CARRIERS, THERE IS NO APPARENT REASON WHY THE MORE ECONOMICAL CHARGE BASIS THERE PRESCRIBED SHOULD NOT BE AVAILABLE TO THE GOVERNMENT IN PREFERENCE TO THE TARIFF EXCLUSIVE-USE CHARGE BASIS.

IN THE CIRCUMSTANCES, OUR AUDIT ACTION EXCEPT AS INDICATED APPEARS PROPER AND IS SUSTAINED. THE $115.50 OVERCHARGE REFERRED TO ABOVE SHOULD PROMPTLY BE REFUNDED TO AVOID THE NECESSITY FOR FURTHER COLLECTION ACTION.