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As of November 1983,14 petitioner's service explanation
stated:
Unless a greater value is declared in writing on the
pickup record, the shipper declares the released value
of each package or article not enclosed in a package,
to be $100. For each $100 or fraction thereof of value
per package or article not enclosed in a package, in
excess of $100, an additional charge, as stated on the
current rate chart, applies. Except if otherwise
directed by the shipper, the carrier will remit excess
valuation charges to National Union Fire Insurance
Company of Pittsburgh, PA as a premium for excess
valuation cargo insurance for the shipper's account and
on its behalf. When the carrier does so, claims for
loss of or damage to the shipper's property will be
filed with and settled by the carrier on behalf of the
insurance company. In the event that the insurance
company fails to pay any claim for loss of or damage to
the shipper's property under the terms of its policy,
the carrier will remain liable for loss or damage
within the limits declared and paid for. Shippers
Interest Policy IMB9310977 is available for inspection
at the office of the carrier. Claims not made within
nine months after receipt by the carrier of the
merchandise shall be deemed waived.
In December 1983, petitioner circulated to its shippers an
edition of its quarterly newsletter entitled "Roundups". Within
the December Roundups, petitioner informed its shippers that
14This service explanation was used throughout 1984.
Petitioner's service explanations, as revised in 1986 and 1988,
contained similar wording. These revisions both stated that
petitioner remained liable for loss or damage. However, the 1986
and 1988 revised service explanations state that petitioner "may"
remit EVC's to NUF as opposed to the "will remit" language in the
above excerpt. We note that the "may remit" language of the 1986
and 1988 revisions is the same language used in petitioner's
tariff. We also note that the "will remit" language in the
November 1983 service explanation could not have been effective
in 1983 since the NUF contract itself does not purport to apply
before January 1984.
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