B-172114, JAN 20, 1972

B-172114, JAN 20, 1972

TRANSPORTATION - EXCLUSIVE USE - TEMPERATURE-CONTROLLED CONDITIONS DECISION DENYING CLAIM OF GARRETT FREIGHT LINES, INC., FOR THE REFUND OF EXCLUSIVE USE CHARGES, RECOVERED BY SET-OFF, ON A GBL. THE REGULATIONS OF THE ROCKY MOUNTAIN MOTOR TARIFF BUREAU INDICATE THAT EXCLUSIVE USE CHARGES FOR ARTICLES SHIPPED UNDER TEMPERATURE CONTROLLED CONDITIONS MUST BE SPECIFICALLY NOTED ON THE BILL OF LADING. IN THE ABSENCE OF SUCH NOTATION NO LEGAL BASIS EXISTS FOR ALLOWING THIS CLAIM AND, ACCORDINGLY, THE PREVIOUS DENIAL MUST BE AFFIRMED.

TO GARRETT FREIGHT LINES, INC.:

WE HAVE YOUR LETTER OF DECEMBER 28, 1971, CONCERNING THE ALLOWABLE CHARGES FOR A SHIPMENT OF JET THRUST UNITS AND IGNITERS WHICH WAS TRANSPORTED BY GARRETT FREIGHT LINES, INC., FROM NIMBUS, CALIFORNIA, TO HILL AIR FORCE BASE, UTAH, ON GOVERNMENT BILL OF LADING (GBL) NO. E 9188670, DATED NOVEMBER 14, 1968.

GARRETT FREIGHT LINES BILLED THE GOVERNMENT FOR THIS SERVICE ON THE BASIS OF AN EXCLUSIVE USE OF VEHICLE CHARGE OF $1,146. UPON AUDIT OF THIS BILL, GARRETT WAS REQUESTED TO REFUND $736.71, BECAUSE IT WAS DETERMINED THAT FREIGHT CHARGES SHOULD BE BASED ON THE ACTUAL WEIGHT AND APPLICABLE RATE, PRODUCING CHARGES OF $409.29. IN OUR AUDIT IT WAS DETERMINED THAT INASMUCH AS NO NOTATION INDICATING A REQUEST FOR EXCLUSIVE USE SERVICE WAS SHOWN ON THE BILL OF LADING, GARRETT WAS NOT ENTITLED TO THE EXCLUSIVE USE SERVICE CHARGE. THE AMOUNT OF $736.71 WAS LATER RECOVERED BY SETOFF.

AT THE TIME OF OUR CORRESPONDENCE WITH GARRETT, WE TOOK THE POSITION THAT EVEN THOUGH EXCLUSIVE USE SERVICE MIGHT HAVE BEEN PERFORMED IN THIS CASE, THE FREIGHT TARIFF PUBLISHING THE EXCLUSIVE USE SERVICE CHARGE CONTAINED A REQUIREMENT THAT A NOTATION TO THE EFFECT THAT EXCLUSIVE USE SERVICE IS REQUESTED MUST BE SHOWN ON THE BILL OF LADING. WHEN SUCH NOTATION IS MISSING THE CARRIER CANNOT COLLECT THE EXCLUSIVE USE CHARGE, GUS BLASS CO. V POWELL BROS. TRUCK LINE, 53 M.C.C. 603, 605 (1951). AND, AS WE HAVE PREVIOUSLY SAID, WE DO NOT BELIEVE THAT THE GUS BLASS CASE WAS SUPERSEDED BY CAMPBELL "66" EXPRESS, INC. V UNITED STATES, 302 F. 2D 270 (1962).

WE HAVE AGAIN EXAMINED THE FACTS CONCERNING THIS TRANSACTION. THE GOVERNING FREIGHT TARIFF ESTABLISHES CONCLUSIVELY THAT GARRETT IS ENTITLED ONLY TO THE FREIGHT CHARGES BASED ON THE ACTUAL WEIGHT AND APPLICABLE RATE. THE DOMESTIC FREIGHT ROUTING REQUEST AND ORDER (FORM DD-1085), DATED NOVEMBER 13, 1968, COVERING THIS SHIPMENT, REQUIRED THAT THE ARTICLES WERE TO BE SHIPPED UNDER TEMPERATURE-CONTROLLED CONDITIONS. GARRETT INDICATES IN ITS LETTER OF AUGUST 28, 1971, TO THIS OFFICE, THE FIRST CARRIER CONTACTED COULD NOT FURNISH A TEMPERATURE-CONTROLLED VEHICLE. THEREFORE, IN ACCORDANCE WITH THE INSTRUCTIONS ON THE ROUTING ORDER, GARRETT WAS REQUESTED TO FURNISH A TEMPERATURE-CONTROLLED VEHICLE, WHICH IT DID. THE ROUTING ORDER FURTHER STATED THAT TEMPERATURE WAS TO BE MAINTAINED BETWEEN 60 AND 100 DEGREES. THAT INFORMATION IS SHOWN ON THE BILL OF LADING, AND PRESUMABLY, SERVICE WAS PERFORMED WITH THAT TEMPERATURE REQUIREMENT BEING OBSERVED.

THERE IS NOTHING ON THE ROUTING ORDER OR THE BILL OF LADING REQUESTING EXCLUSIVE USE OF VEHICLE SERVICE. THESE DOCUMENTS DO SHOW A REQUEST FOR TEMPERATURE-CONTROLLED SERVICE.

THE TARIFF GOVERNING THIS MOVEMENT IS ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 30-C, MF-I.C.C. NO. 165. GARRETT FREIGHT LINES IS A PARTICIPATING CARRIER AND CONCURS IN ALL THE RATES, RULES AND REGULATIONS PUBLISHED THEREIN, EXCEPT WHERE OTHERWISE SPECIFICALLY PROVIDED. ITEM 255, ON 3RD REVISED PAGE 133, IS A SO-CALLED "PROTECTIVE SERVICE" RULE. IN SUBSTANCE, THIS ITEM PROVIDES THAT ARTICLES REQUIRING PROTECTION FROM HEAT OR COLD WILL BE ACCEPTED AND ACCORDED SUCH PROTECTION AT THE RATES PROVIDED IN THE TARIFF WITHOUT ADDITIONAL CHARGE, SUBJECT TO SUITABLE EQUIPMENT BEING AVAILABLE AND PROVIDED THAT THE SHIPPER STATES SPECIFICALLY ON THE BILL OF LADING THAT SUCH PROTECTION IS REQUIRED. A COPY OF THE TITLE PAGE OF THE TARIFF NO. 30 AND OF THE PAGE CONTAINING ITEM 255 ARE ENCLOSED FOR YOUR CONVENIENCE.

THUS, THERE IS A TARIFF RULE EXACTLY COVERING THE SERVICE FURNISHED; A TEMPERATURE-CONTROLLED VEHICLE WAS REQUIRED AND GARRETT PROVIDED SUCH A VEHICLE. THE BILL OF LADING STATED SPECIFICALLY THAT TEMPERATURE BETWEEN 60 AND 100 DEGREES WAS TO BE MAINTAINED. THE SHIPPER AND CARRIER COMPLIED WITH THE PROVISIONS OF ITEM 255, AND IN THE CIRCUMSTANCES, THE TARIFF RATE APPLICABLE FOR SUCH SERVICE MUST BE USED TO DETERMINE THE ALLOWABLE CHARGES ON THIS SHIPMENT. SINCE OUR AUDIT BASIS GAVE PROPER EFFECT TO THE TARIFF REQUIREMENTS, YOUR CLAIM FOR $736.71 MUST AGAIN BE DENIED.