B-162519, FEB. 9, 1968

B-162519, FEB. 9, 1968

TRANSPORTATION - FREIGHT CHARGES - EXPEDITED SERVICE DECISION TO J.H. ROSE TRUCK LINE, INC., SUSTAINING DISALLOWANCES FOR ADDITIONAL FREIGHT CHARGES ON BASIS OF EXPEDITED SERVICE IN THE SHIPMENTS UNDER GOVERNMENT BILLS OF LADING. THE INDICATION OF A DESIRED SHIPPING DATE ON BILLS OF LADING WITHOUT REQUEST FOR EXPEDITED OR HIGH SPEED TRANSPORTATION DOES NOT JUSTIFY HIGHER CHARGES CLAIMED BY THE CARRIER. THEREFORE ADDITIONAL TRANSPORTATION CHARGES WERE PROPERLY DISALLOWED.

TO J.H. ROSE TRUCK LINE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1967, REQUESTING REVIEW OF TWO SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS FOR $158.50 AND $280 IN ADDITIONAL CHARGES ON THE SHIPMENTS TRANSPORTED UNDER BILLS OF LADING B-8216838 AND B-8112499, YOUR BILLS 561 AND 677.

THE AMOUNTS CLAIMED REPRESENT THE DIFFERENCE BETWEEN CHARGES PAID FOR REGULAR TRANSPORTATION SERVICES AND CHARGES BASED ON EXPEDITED OR HIGH SPEED TRANSPORTATION. YOU CONTEND THAT THE PRIORITY SYMBOLS SHOWN ON THE TWO BILLS OF LADING,"DDD 7-21-63 IPD-4" ON THE FIRST BILL OF LADING AND "IPD 09 DDD 4 FEB 64 TRANS PRI - 3" ON THE SECOND, CONSTITUTE REQUESTS FOR THE PREMIUM SERVICES UNDER ITEMS 65 AND 120 OF J.H. ROSE TRUCK LINE, INC., RATE TENDERS I.C.C. 63 AND I.C.C. 85. THE INITIALS "DDD" ARE UNDERSTOOD TO BE ABBREVIATIONS FOR "DESIRED DELIVERY DATE"; "IPD" TO STAND FOR "ISSUE PRIORITY DESIGNATOR" AND "TRANS PRI" TO REFER TO "TRANSPORTATION PRIORITY.'

WE ARE ENCLOSING A COPY OF LETTER ADDRESSED TO YOUR COMPANY ON MAY 24, 1962, BY MAJOR GENERAL I. SEWELL MORRIS, COMMANDER OF DEFENSE TRAFFIC MANAGEMENT SERVICE, WHEREIN YOUR COMPANY WAS INFORMED THAT THE DEPARTMENT OF DEFENSE WOULD INITIATE ON JULY 1, 1962, A UNIFORM REQUISITION AND SUPPLY SYSTEM WHICH WOULD REQUIRE COMMERCIAL CARRIERS OF GOVERNMENT PROPERTY TO RENDER CONSISTENTLY DEPENDABLE TRANSPORTATION SERVICES. THAT TIME, YOUR COMPANY WAS REQUESTED TO FURNISH TRANSIT TIMES FOR ORDINARY TRANSPORTATION SERVICES. YOU WERE FURTHER ADVISED NOT TO INCLUDE TRANSIT TIMES FOR EXPEDITED OR HIGH SPEED TRANSPORTATION. YOU ALSO WERE ADVISED THAT A TRANSIT TIME GUIDE WOULD BE PREPARED FROM THE TRANSIT TIMES REPORTED BY THE SEVERAL CARRIERS WHICH WOULD BE USED IN TENDERING SHIPMENTS BASED ON THE TRANSIT TIMES REPORTED AND THE DEMONSTRATED ABILITY OF THE CARRIERS TO CONSISTENTLY SUPPLY PROMPT AND EFFICIENT TRANSPORTATION SERVICES.

IN EXPLANATION OF THE PRIORITY SYSTEM PLAN, GENERAL MORRIS REFERRED TO THE PROVISION FOR THE SHOWING OF A DESIRED DELIVERY DATE ("DDD") ON THE BILLS OF LADING, BUT CLEARLY STATED THAT THE DESIRED DELIVERY DATE ALONE IS NOT TO BE CONSTRUED AS A REQUEST FOR "EXCLUSIVE USE OF VEHICLE," ,EXPEDITED SERVICE," OR ANY OTHER TYPE OF SPECIAL SERVICE.

A DESIRED DELIVERY DATE OF JULY 21, 1963, IS SHOWN ON BILL OF LADING B- 8216838 COVERING THE SHIPMENT TENDERED TO YOUR COMPANY ON JULY 10, 1963. THE CONSIGNEE'S CERTIFICATE ON THE BILL OF LADING INDICATES THIS SHIPMENT WAS DELIVERED AT DESTINATION ON JULY 15, 1963. ON THE SHIPMENT TENDERED ON JANUARY 30, 1964, BILL OF LADING B-8112499, A DESIRED DELIVERY DATE OF FEBRUARY 4, 1964, IS SHOWN. THE CONSIGNEE'S CERTIFICATE INDICATES THIS SHIPMENT WAS DELIVERED AT DESTINATION ON FEBRUARY 1, 1964. YOUR COMPANY THUS WAS REQUESTED TO COMPLETE THE TRANSPORTATION NOT LATER THAN THE ELEVENTH AND FIFTH DAYS FOLLOWING TENDER OF THE SHIPMENTS AT ORIGIN. HAD YOUR COMPANY FAILED TO EFFECT DELIVERY WITHIN THE TRANSIT TIMES INDICATED, YOU PROBABLY WOULD HAVE RECEIVED TRACER LETTERS INQUIRING AS TO THE REASON FOR THE DELAY IN TRANSPORTATION. EVEN THOUGH YOUR COMPANY IS NOT REQUIRED TO TRANSPORT OTHER THAN WITH REASONABLE DISPATCH, A USER OF COMMERCIAL TRANSPORTATION IS JUSTIFIED IN SELECTING AND UTILIZING THOSE CARRIERS WHICH DEMONSTRATE THEY WILL MEET THE SHIPPING NEEDS OF THE SHIPPER AT THE LOWEST TRANSPORTATION COST. CERTAINLY THE COMPLETION OF THE TRANSPORTATION ON THE FIFTH AND SECOND DAYS DO NOT WARRANT THE HIGHER CHARGES CLAIMED WHERE THERE WAS NO REQUEST FOR EXPEDITED OR HIGH SPEED TRANSPORTATION AND THE DATE OF DESIRED DELIVERIES SHOW ELEVEN AND FIVE DAYS WERE AVAILABLE FOR THE TRANSPORTATION SERVICES.

REGARDING YOUR CONTENTION THAT THE PRIORITY SYMBOLS SHOWN ON THE BILLS OF LADING CONSTITUTED AN IRREVOCABLE AGREEMENT TO PAY THE HIGHER CHARGES CLAIMED, WE INVITE ATTENTION TO THE PROVISIONS OF BOTH ITEMS 65 AND 120 OF THE INVOLVED TENDERS INDICATING THAT THE PREMIUM CHARGES FOR EXPEDITED SERVICE OR HIGH SPEED TRANSPORTATION APPLY WHEN AT THE REQUEST OF THE SHIPPER OR CONSIGNEE A REQUEST IS MADE THAT THE SHIPMENT BE GIVEN EXPEDITED OR HIGH SPEED TRANSPORTATION AND THE BILL OF LADING IS ANNOTATED AS PRESCRIBED THEREIN. REGARDLESS OF WHETHER THE NOTATIONS, QUOTED ABOVE, FROM THE BILLS OF LADING COULD BE CONSIDERED TO SUBSTANTIALLY COMPLY WITH THE ANNOTATION REQUIREMENT OF THE TENDERS, THE NOTATIONS DO NOT REQUEST EXPEDITED OR HIGH SPEED TRANSPORTATION. ALSO, AS TO BOTH OF THE SHIPMENTS ON WHICH YOU MAKE CLAIM, THE SHIPPING AGENCY HAS ADVISED OUR OFFICE THAT REQUESTS FOR EXPEDITED OR HIGH SPEED TRANSPORTATION WERE NOT MADE.

IN THE CIRCUMSTANCES, THE SETTLEMENTS ISSUED ON APRIL 11 AND 19, 1967, DISALLOWING YOUR CLAIMS, WERE PROPER AND ARE SUSTAINED.