B-182073, OCT 29, 1974, 54 COMP GEN 308

B-182073, OCT 29, 1974, 54 COMP GEN 308

TRANSPORTATION - DEMURRAGE - DETENTION CHARGES - WEEKEND AND HOLIDAY TRAVEL WEEKEND OR HOLIDAY VEHICLE DETENTION CHARGES FOR OVERDIMENSIONAL SHIPMENTS ARE PROPER ONLY WHEN THE CARRIER HAS A VALID HIGHWAY PERMIT FOR THE DAY PRECEDING AND THE DAY FOLLOWING THE SATURDAY, SUNDAY OR HOLIDAY. EXPENSES INCURRED THROUGH THE USE OF A TRANSCEIVER TO OBTAIN STATE HIGHWAY PERMITS ARE PROPERLY REIMBURSABLE, BUT ONLY WHERE PROVEN.

IN THE MATTER OF ULTRA SPECIAL EXPRESS, OCTOBER 29, 1974:

ULTRA SPECIAL EXPRESS (ULTRA) REQUESTS REVIEW OF THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION (TCD) IN DISALLOWING $389.95 OF ITS CLAIM FOR $2,563.03 ON SETTLEMENT CERTIFICATE ISSUED FEBRUARY 4, 1974. OUR CLAIM NUMBER IS TK-969565.

UNDER GOVERNMENT BILL OF LADING NO. H-4524626, DATED NOVEMBER 2, 1973, COVERING THE TRANSPORTATION OF AN OVERDIMENSIONAL FORK LIFT TRUCK FROM BAYONNE, NEW JERSEY, TO HAVRE DE GRACE, MARYLAND, $300 IN VEHICLE DETENTION CHARGES AND $36.25 OF THE CHARGES FOR THE PROCUREMENT OF SPECIAL HIGHWAY PERMITS WERE DISALLOWED. THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS PICKED UP BY THE CARRIER ON FRIDAY, NOVEMBER 2, 1973, AND THAT IT WAS DELIVERED ON NOVEMBER 13, 1973. THE CARRIER CONTENDS THAT THE DETENTION CHARGES ARE DUE BECAUSE IT WAS NOT POSSIBLE TO PICK UP THE SHIPMENT, OBTAIN THE PERMITS, AND DELIVER THE SHIPMENT ON THE SAME DAY. WEEKEND OR HOLIDAY TRAVEL OF OVERDIMENSIONAL SHIPMENTS THROUGH THE STATES INVOLVED HERE IS NOT LEGAL. DELIVERY WAS DELAYED UNTIL NOVEMBER 13, 1973, PURPORTEDLY AT THE CONVENIENCE OF THE CONSIGNEE, BUT THE PERMITS SHOW THAT MOVEMENT ACTUALLY TOOK PLACE ON NOVEMBER 12-13, 1973.

UNDER ITEM 1580 OF THE HEAVY AND SPECIALIZED CARRIERS TARIFF BUREAU TARIFF 100-F, MF-I.C.C. 36 (TARIFF 100-F), INCORPORATED BY REFERENCE INTO THE CARRIER'S SECTION 22 TENDER I.C.C. NO. 3, IT IS THE RESPONSIBILITY OF THE CARRIER TO OBTAIN THE NECESSARY PERMITS WHEN REQUESTED TO DO SO BY THE SHIPPER. WHEN A SHIPMENT IS BEING TRANSPORTED UNDER SPECIAL PERMITS, ITEMS 1450 AND 1680 OF TARIFF 100-F PROVIDE THAT THE CARRIER IS ENTITLED TO DETENTION CHARGES FOR ANY WEEKEND OR HOLIDAY OCCURRING WHILE THE SHIPMENT IS EN ROUTE.

WE HAVE HELD THAT FOR A SHIPMENT TO QUALIFY FOR THESE CHARGES, THE CARRIER MUST PROVE THAT THE SHIPMENT WAS PERMITTED TO MOVE BOTH BEFORE AND AFTER THE WEEKEND OR HOLIDAY PERIOD FOR WHICH DETENTION CHARGES ARE CLAIMED. B-180733, AUGUST 5, 1974. HERE UNDER THE TERMS OF THE PERMITS SUPPLIED BY THE CARRIER, NO TRANSPORTATION WAS POSSIBLE UNTIL NOVEMBER 12, 1973. THEREFORE, SINCE NO TRANSPORTATION WAS PERMITTED ON NOVEMBER 2 AND 5, 1973, NO DETENTION CHARGES ARE PAYABLE FOR THE WEEKEND OF NOVEMBER 3-4, 1973, AND THE ACTION OF TCD IN DISALLOWING THESE CHARGES IS SUSTAINED.

ITEM 1580 OF TARIFF 100-F GOVERNS PERMITS, LICENSES, BRIDGE, FERRY, HIGHWAY, OR TUNNEL CHARGES, PROVIDING IN PART:

(C) THE CARRIER WILL ADVANCE ALL EXPENSE (INCLUDING TELEPHONE AND TELEGRAPH TOLLS) NECESSARY TO SECURE SUCH LICENSES OR PERMITS, OR WILL PAY AS INCURRED, ALL BRIDGE, FERRY, HIGHWAY, TUNNEL OR OTHER PUBLIC CHARGES OF LIKE NATURE, WHICH ARE INCURRED IN THE HANDLING OF ANY SUCH SHIPMENT BUT ALL SUCH EXPENSE OR CHARGES, PLUS A TEN (10) DOLLAR SERVICE OR MESSENGER CHARGE FOR EACH SUCH PERMIT PROCURED, SHALL BE IN ADDITION TO OTHER CHARGES PROVIDED IN THIS TARIFF, AND SHALL BE COLLECTED FROM THE SHIPPER OR CONSIGNEE. EVIDENCE OF THE PAYMENT OF SUCH CHARGES SHALL BE FURNISHED TO SHIPPER UPON REQUEST.

THE CARRIER ORIGINALLY BILLED $104.75 UNDER THIS ITEM AND WAS ALLOWED $68.50. THE REMAINDER OF THE CHARGES, $36.25, WAS DISALLOWED AS UNNECESSARY AND UNPROVED.

THE DISPUTED PART OF THE CHARGES INVOLVES THE COSTS OF REQUESTING AND RECEIVING THE PERMITS. ULTRA STATES THAT, IN ORDER TO OBTAIN EACH PERMIT, IT WAS NECESSARY TO CALL THE APPROPRIATE STATE AGENCY TO APPLY FOR THE PERMIT AND, SUBSEQUENTLY, TO RECEIVE BY SOME MEANS THE PERMIT ITSELF. FACILITATE RECEIPT OF PERMITS, ULTRA RENTED A TRANSCEIVER ON A PER USE BASIS, CONTENDING THAT THIS METHOD IS THE MOST PRACTICAL, EXPEDITIOUS, AND LEAST COSTLY.

UNDER TARIFF 100-F, ULTRA IS ENTITLED ONLY TO THOSE CHARGES WHICH ARE "NECESSARY." THE EXISTENCE OF OTHER CHEAPER METHODS OF RECEIVING PERMITS DOES NOT MEAN THAT ULTRA'S USE OF A TRANSCEIVER IS UNNECESSARY. UNDER THE TERMS OF THE TARIFF, AND WITHIN A BROAD RANGE, THE SELECTION OF A METHOD OF OBTAINING PERMITS IS AT THE CARRIER'S DISCRETION. BASED ON THE PRESENT RECORD, WE CANNOT SAY THAT THE USE OF THE TRANSCEIVER IS UNNECESSARY NOR DO WE BELIEVE THAT THE TRANSCEIVER CHARGES ARE UNREASONABLE. THEREFORE, ULTRA IS ENTITLED TO THOSE TRANSCEIVER CHARGES FOR WHICH IT CAN FURNISH PROOF.

FURTHER, IT DOES NOT APPEAR THAT THE 10-DOLLAR SERVICE CHARGE PROVIDED BY ITEM 1580 IS DESIGNED TO COVER TRANSCEIVER EXPENSES. THE CARRIER IS CLEARLY ENTITLED TO ALL PROVABLE EXPENSES NECESSARY TO SECURE PERMITS AND THE 10-DOLLAR SERVICE CHARGE IS IN ADDITION TO THOSE EXPENSES. WE PRESUME THAT THE CHARGE WAS IMPOSED TO COVER OVERHEAD AND UNALLOCABLE COSTS.

ON THIS SHIPMENT, THE CARRIER HAS PROVIDED PERMITS FROM NEW JERSEY, DELAWARE, AND MARYLAND. THE NEW JERSEY PERMIT IS IDENTIFIED AS RECEIVED OVER ULTRA'S TRANSCEIVER AND, ACCORDINGLY, THE CHARGES OF $9.45 FOR THE TRANSCEIVER AND $2.20 FOR TELEPHONE CALLS ARE PROPER, IF OTHERWISE CORRECT.

HOWEVER, THE TWO REMAINING PERMITS WERE APPARENTLY NOT RECEIVED OVER ULTRA'S TRANSCEIVER. THE METHOD BY WHICH THESE PERMITS WERE OBTAINED IS UNCERTAIN AND THE EXPENSE INCURRED IS UNPROVED. THEREFORE, AND ON THE BASIS OF THE PRESENT RECORD, THE TRANSCEIVER CHARGES FOR THESE PERMITS WERE PROPERLY DISALLOWED.

THE REMAINDER OF THE DISPUTED CHARGES UNDER THIS CLAIM AROSE UNDER GOVERNMENT BILL OF LADING NO. H-1666576, DATED NOVEMBER 13, 1973, WHICH COVERED THE TRANSPORTATION OF AN OVERDIMENSIONAL MOTOR FREIGHT VEHICLE FROM ATLANTIC HIGHLAND, NEW JERSEY, TO NORFOLK, VIRGINIA. PERMIT CHARGES OF $53.70 WERE DISALLOWED BY TCD ON THE SAME GROUNDS AS STATED ABOVE. FIND THAT OF THE AMOUNT CLAIMED, ULTRA IS DUE NO MORE THAN $11.65 FOR ITS EXPENSES IN OBTAINING THE NEW JERSEY PERMIT. THE MARYLAND AND VIRGINIA PERMITS WERE NOT RECEIVED ON ULTRA'S TRANSCEIVER AND NO COPY OF THE DELAWARE PERMIT HAS BEEN PROVIDED. THEREFORE, THE CHARGES FOR THESE THREE PERMITS WERE PROPERLY DISALLOWED AS UNPROVED.

WE NOTE THAT THE PREVIOUS SETTLEMENT ALLOWED ULTRA $5 MORE THAN WAS CLAIMED FOR TOLL CHARGES UNDER GOVERNMENT BILL OF LADING NO. H 4524627. IN REVISING THE CERTIFICATE TO REFLECT THE CHARGES ALLOWED BY THIS DECISION, THE TOLL CHARGE ALSO SHOULD BE ADJUSTED.