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LTD.: REFERENCE IS MADE TO YOUR LETTER OF MAY 9. THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED FOR THE REASON THAT THE BILL OF LADING COVERING THE SHIPMENT DID NOT BEAR A NOTATION TO INDICATE THAT A REQUEST WAS MADE BY THE SHIPPER FOR EXCLUSIVE-USE SERVICE AS REQUIRED BY THE EXCLUSIVE-USE PROVISION IN THE APPLICABLE TARIFF. - "I CERTIFY THAT EXCLUSIVE VEHICLE SERVICE WAS FURNISHED FROM KELLY AFB. INDICATES THAT EXCLUSIVE-USE SERVICE WAS REQUESTED AND IS IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF PROVISION PRESCRIBING THE REQUIRED NOTATIONS TO APPEAR UPON THE BILL OF LADING. THERE IS THE REQUIREMENT THAT THE BILL OF LADING BE ANNOTATED IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF TO INDICATE THAT THE SHIPPER REQUESTED THE EXCLUSIVE-USE SERVICE.

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B-142865, JUL. 18, 1961

TO WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1961, REQUESTING RECONSIDERATION OF OUR DECISION OF FEBRUARY 8, 1961, B-142865, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM (G-01703) IN THE AMOUNT OF $512 ON BILL NO. 49-11-7-56 FOR EXCLUSIVE-USE CHARGES IN CONNECTION WITH TRANSPORTATION FURNISHED THE GOVERNMENT UNDER GOVERNMENT BILL OF LADING AF -4887399. THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED FOR THE REASON THAT THE BILL OF LADING COVERING THE SHIPMENT DID NOT BEAR A NOTATION TO INDICATE THAT A REQUEST WAS MADE BY THE SHIPPER FOR EXCLUSIVE-USE SERVICE AS REQUIRED BY THE EXCLUSIVE-USE PROVISION IN THE APPLICABLE TARIFF.

YOU CONTEND THAT THE NOTATION ON THE BILL OF LADING--- "I CERTIFY THAT EXCLUSIVE VEHICLE SERVICE WAS FURNISHED FROM KELLY AFB, SAN ANTONIO, TEXAS TO AIR NATIONAL GUARD BASE, RENO, EVADA"--- APPARENTLY INTENDED FOR SIGNATURE BY THE AGENT OF THE DESTINATION CARRIER BUT WHICH HE FAILED TO SIGN, INDICATES THAT EXCLUSIVE-USE SERVICE WAS REQUESTED AND IS IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF PROVISION PRESCRIBING THE REQUIRED NOTATIONS TO APPEAR UPON THE BILL OF LADING.

YOU APPEAR TO BE CONFUSING TWO SEPARATE AND DISTINCT REQUIREMENTS IN YOUR REQUEST FOR RECONSIDERATION. FIRST, THERE IS THE REQUIREMENT THAT THE BILL OF LADING BE ANNOTATED IN SUBSTANTIAL COMPLIANCE WITH THE TARIFF TO INDICATE THAT THE SHIPPER REQUESTED THE EXCLUSIVE-USE SERVICE; AND SECONDLY THERE IS THE REQUIREMENT THAT THERE BE SOME EVIDENCE THAT THE SERVICE WAS ACTUALLY RENDERED. THE NOTATION TO WHICH YOU REFER IF SIGNED WOULD BE SOME EVIDENCE THAT EXCLUSIVE-USE SERVICE WAS FURNISHED, HOWEVER, IT CLEARLY DOES NOT INDICATE SUCH SERVICE WAS REQUESTED. IN OTHER WORDS A SHIPPER MAY REQUEST THE SERVICE AND IT MAY OR MAY NOT BE FURNISHED OR THE SERVICE MAY BE FURNISHED WITHOUT THE SHIPPER REQUESTING THE SERVICE.

REDUCED TO ITS SIMPLEST TERMS, THE INITIAL AND CONNECTING CARRIERS BY THEIR TARIFFS OFFERED TWO TYPES OF SERVICE, ORDINARY SERVICE AND EXCLUSIVE USE OF VEHICLE SERVICE TAKING A HIGHER RATE. WHERE THE MORE COSTLY TYPE OF SERVICE WAS DESIRED, THE TARIFF PROVIDED THAT THE SHIPPER ENDORSE ON THE BILL OF LADING "EXCLUSIVE USE OF VEHICLE REQUESTED" AS EVIDENCE THAT THE HIGHER RATED SERVICE WAS DESIRED AND AUTHORIZED. IN THE ABSENCE OF SUCH A NOTATION ON THE BILL OF LADING ONLY THE ORDINARY SERVICE WAS AUTHORIZED OR PROPERLY COULD BE COLLECTED OR CHARGED FOR. SEE GUS BLASS COMPANY V. POWELL BROTHERS TRUCK LINES, 53 M.C.C. 603.

WE SEE NOTHING INCONSISTENT BETWEEN OUR DECISION OF FEBRUARY 8, 1961, B- 142865, AND THE EXCERPT FROM THE DIRECTOR OF OUR TRANSPORTATION DIVISION'S LETTER OF JANUARY 19, 1961, TO THE MANAGING DIRECTOR, MUNITIONS CARRIERS CONFERENCE, QUOTED BY YOU. MR. STOVALL'S LETTER STATES THAT BEFORE PREMIUM CHARGES FOR EXCLUSIVE USE OF VEHICLE MAY BE ALLOWED THERE MUST FIRST BE SUBSTANTIAL COMPLIANCE WITH THE EXCLUSIVE-USE ANNOTATIONS IN THE TARIFF. THE TARIFF HERE REQUIRED THAT THE BILL OF LADING BE ENDORSED BY THE SHIPPER "EXCLUSIVE USE OF VEHICLE REQUESTED.' THE BILL WAS NOT SO ANNOTATED NOR DOES THE UNSIGNED ANNOTATION TO THE EFFECT THAT EXCLUSIVE VEHICLE SERVICE WAS FURNISHED COMPLY SUBSTANTIALLY THEREWITH THERE BEING NOTHING IN THE WORDING OF SUCH CERTIFICATE TO SHOW EXCLUSIVE USE WAS DESIRED OR REQUESTED BY THE SHIPPER.

ACCORDINGLY, AND SINCE YOUR LETTER OF MAY 9, 1961, CONTAINS NOTHING TO WARRANT A REVERSAL OR MODIFICATION OF OUR DECISION OF FEBRUARY 8, 1961, IT IS AFFIRMED.

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