B-144521, MAY 3, 1961

B-144521, MAY 3, 1961

TO LEE WAY MOTOR FREIGHT, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1960, ACKNOWLEDGED NOVEMBER 29, 1960, REQUESTING REVIEW OF THE SETTLEMENT ACTION IN CLAIM NO. TK-701579, DATED OCTOBER 21, 1960, WHICH DISALLOWED YOUR BILL NO. 9 7-17- M, IN THE AMOUNT OF $1,243.80, ADDITIONAL FREIGHT CHARGES ON TWO SHIPMENTS OF HIGH EXPLOSIVES MOVING FROM WEST BURLINGTON, IOWA, TO SAVANNA, OKLAHOMA. YOUR SUPPLEMENTAL BILL IS BASED ON THE EXCLUSIVE USE OF VEHICLE PROVISIONS OF MIDDLEWEST MOTOR FREIGHT BUREAU TARIFF NO. 35-B, AND SOUTHWESTERN MOTOR FREIGHT BUREAU TARIFF NO. 301-C.

GOVERNMENT BILL OF LADING AT-150388 DATED JUNE 3, 1959, WAS ISSUED TO COVER THE TRANSPORTATION OF ONE TRUCKLOAD OF "HIGH EXPLOSIVES, NOI," WEIGHING 11,725 POUNDS, FROM IOWA ORDNANCE PLANT, WEST BURLINGTON, IOWA, TO NAVAL AMMUNITION DEPOT, MCALESTER, OKLAHOMA. BILL OF LADING AT-150406, DATED JUNE 30, 1959, COVERED TWO TRUCKLOADS OF HIGH EXPLOSIVES, WEIGHING 8,845 AND 8,655 POUNDS, MOVING FROM THE IOWA ORDNANCE PLANT, WEST BURLINGTON, IOWA, TO THE NAVAL AMMUNITION DEPOT, MCALESTER, OKLAHOMA. BOTH SHIPMENTS WERE MADE BY THE ATOMIC ENERGY COMMISSION, IOWA ORDNANCE PLANT. EACH BILL OF LADING WAS ANNOTATED, "EXCLUSIVE USE OF TRAILER REQUIRED," AND EACH WAS ROUTED,"WATSON TO KANSAS CITY, LEEWAY TO TULSA, AMERICAN TRANSFER TO DESTINATION.' AMERICAN TRANSFER AND STORAGE CO., THE DELIVERING CARRIER OF EACH SHIPMENT, EXECUTED A WAIVER OF PAYMENT OF THE FREIGHT CHARGES IN FAVOR OF LEE WAY MOTOR FREIGHT. FOR THESE SERVICES YOU BILLED AND WERE PAID $452 ON BILL OF LADING AT-150388, AND $904 ON BILL OF LADING AT-150406, IN THE SEPTEMBER 1959 ACCOUNTS OF LT.COL. GEORGE M. SECKINGER, ARMY DISBURSING OFFICER. THE CHARGES WERE COMPUTED AT A TRUCKLOAD RATE OF $2.26 PER 100 POUNDS, AND A TRUCKLOAD MINIMUM WEIGHT OF 20,000 POUNDS. THESE CHARGES ARE PUBLISHED IN WATSON BROS. TRANSPORTATION CO., INC., SECTION 22 TENDER NO. 1000. YOUR PRESENT CLAIM FOR ADDITIONAL CHARGES IS IN SUBSTANCE PREMISED UPON THE FACT THAT THERE IS NO "EXCLUSIVE USE OF VEHICLE" PROVISION IN TENDER NO. 1000, SO THAT IT WOULD BE INAPPLICABLE ON THESE SHIPMENTS.

YOUR COMPANY IN CONJUNCTION WITH OTHER PARTICIPATING CARRIERS OFFERED TO THE GOVERNMENT PURSUANT TO SECTIONS 22 AND 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 AND 317 (B), REDUCED TRUCKLOAD AND VOLUME RATES ON AMMUNITION AND EXPLOSIVES BETWEEN CERTAIN NAMED POINTS VIA CERTAIN ROUTES. WHILE THERE IS NO PROVISION IN TENDER 1000 SPECIFICALLY COVERING EXCLUSIVE USE OF VEHICLE, THERE IS NOTHING IN THE TENDER EXPRESSLY CONDITIONING THE ACCEPTANCE BY THE CARRIER OF SHIPMENTS OF EXPLOSIVES REQUIRING THE EXCLUSIVE USE OF CARRIERS' EQUIPMENT UPON THE APPLICATION OF CHARGES IN TARIFF NOT REFERRED TO IN THE RATE TENDER. THE TRANSPORTATION OF DANGEROUS EXPLOSIVES IS A SPECIALIZED SERVICE REQUIRING SPECIAL AUTHORIZATION FROM THE INTERSTATE COMMERCE COMMISSION, OWING TO THE INHERENTLY DANGEROUS CHARACTERISTICS OF THE COMMODITY. IT IS NOTED THAT TENDER NO. 1000 WAS SUBJECT TO THE CONDITIONS IMPOSED IN MOTOR CARRIERS EXPLOSIVE AND DANGEROUS ARTICLES TARIFF NO. 7, MF-I.C.C. NO. 2. ONE OF THE BASIC REASONS FOR WHICH EXCLUSIVE USE OF VEHICLE SERVICE IS DESIGNED IS TO MEET THE REQUIREMENTS OF SHIPPERS WHOSE PROPERTY REQUIRES SEGREGATION OR SEPARATION FROM OTHER FREIGHT, AND IT SEEMS CERTAIN, FROM THE VERY NATURE OF THE SERVICE REQUIRED IN THIS INSTANCE, THAT TENDER NO. 1000 WAS OFFERED TO THE GOVERNMENT WITH THE FULL KNOWLEDGE ON THE PART OF THE CARRIERS THAT THE TRANSPORTATION OF EXPLOSIVES WOULD REQUIRE EXCLUSIVE USE OF VEHICLE SERVICE. THAT THIS TYPE OF SERVICE WAS CONTEMPLATED IS EVIDENCED BY THE FACT THAT ITEM 4 OF THE TENDER READS: "TRAILER INTERCHANGE: THRU TRAILER SERVICE.' THE TERM ,THRU TRAILER SERVICE" CLEARLY SHOWS THAT THE CARRIERS WHICH ARE PARTIES TO THE TENDER DID NOT CONTEMPLATE THAT OTHER THAN THROUGH (ORIGIN TO DESTINATION) SERVICE WOULD BE FURNISHED AT THE RATES NAMED IN THE TENDER. MOREOVER, AT THE TIME THESE SHIPMENTS WERE ACCEPTED BY THE CARRIERS IT WAS APPARENTLY UNDERSTOOD BY ALL PARTIES TO THE TRANSACTION THAT THE LOWER RATES PROVIDED IN THE TENDER WOULD APPLY IN LIEU OF THE HIGHER TARIFF RATES AS EVIDENCED BY THE FACT THAT YOUR COMPANY BILLED IN ACCORDANCE WITH THE QUOTATION TERMS.

ACCORDINGLY, THERE IS NO BASIS WHICH WOULD WARRANT ANY MODIFICATION OF OUR SETTLEMENT ACTION AND IT IS SUSTAINED.