B-144330, JUL. 5, 1961

B-144330, JUL. 5, 1961

TO DEALERS TRANSIT, INC.:

IN YOUR LETTER OF MARCH 1, 1961, YOU REQUEST RECONSIDERATION OF OUR DECISION OF FEBRUARY 14, 1961, B-144330, IN WHICH WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR EXCESS VALUATION CHARGES ON BILLS OF LADING NOS. WY-7268457, WY-8156441 AND WY-8156442. YOUR CLAIM IS BASED UPON ITEM 240 OF NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION, AGENT, TARIFF NO. 83- D, MF-I.C.C. NO. 344, WHICH PROVIDES FOR AN EXCESS VALUATION CHARGE OF 15 CENTS FOR EACH $100 OF VALUATION IN EXCESS OF $20,000 TO THE EXTENT THAT IT APPLIES FOR THE MOVEMENT OF SPECIFICALLY DESCRIBED ITEMS. THE THREE BILLS OF LADING MENTIONED ABOVE COVERED SHIPMENTS OF CONTAINERS, OXYGEN AND NITROGEN, SEMI-TRAILER MOUNTED HOFMAN LABS. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT "SEMI TRAILERS" WERE NOT NAMED AMONG THE COMMODITIES DESCRIBED IN ITEM 240.

IN YOUR REQUEST FOR RECONSIDERATION YOU PROTEST THE CONCLUSION THAT SEMI- TRAILERS ARE NOT LISTED, ARGUING THAT "SEMI-TRAILERS" ARE EMBRACED WITHIN THE TERM "TRAILERS," WHICH ARE EXPRESSLY SET FORTH IN ITEM 240. SINCE TRAILERS AND SEMI-TRAILERS WERE SEPARATELY DESIGNATED ON THE TITLE PAGE OF THE TARIFF, IT WAS CONSIDERED THAT THEY WERE TO BE TREATED SEPARATELY FOR PURPOSES OF THE SUBJECT TARIFF, NOTWITHSTANDING THAT THE GENERAL RULE MIGHT BE TO THE CONTRARY. ON RECONSIDERATION, HOWEVER, WE NOTE THAT THE DESIGNATION OF COMMODITIES ON THE TITLE PAGE IS EXPRESSLY MADE SUBJECT TO THE DESCRIPTION OF COMMODITIES COVERED IN ITEM 10, AND SINCE ITEM 10 DOES NOT LIST "SEMI-TRAILERS" SEPARATELY FROM "TRAILERS," IT IS CLEAR THAT THE TERM "TRAILERS" IS INTENDED TO EMBRACE "SEMI-TRAILERS," AS ALLEGED. ALSO, IT IS NOTED THAT THE COURTS HAVE HELD THAT IN ORDINARY SPEECH THE WORK "TRAILER" COVERS BOTH "TRAILERS" AND "SEMI-TRAILERS.' MARYLAND CASUALTY CO. V. CROSS, 112 F.2D 58, 60. ACCORDINGLY, OUR DECISION OF FEBRUARY 14, 1961, TO THE EXTENT THAT IT HELD OTHERWISE, IS REVERSED.

ITEM 240 OF THE TARIFF FURTHER PROVIDES:

"COMMODITY RATES IN THIS TARIFF * * * WILL BE APPLICABLE ONLY WHEN THE VALUE DECLARED BY THE SHIPPER IN WRITING, OR AGREED UPON IN WRITING, AS THE RELEASED VALUE OF THE PROPERTY IS AS OLLOWS:

TABLE

"RELEASED RATES ORDER NO. MC-369

RELEASED VALUATION

RELEASED TO A VALUE NOT EXCEEDING BASE TRANSPORTATION RATE.

TWENTY THOUSAND DOLLARS ($20,000)

FOR EACH VEHICLE IN THE SHIPMENT.

RELEASED TO A VALUE EXCEEDING BASE TRANSPORTATION RATE PLUS

TWENTY THOUSAND DOLLARS ($20,000) AN (SIC) EXCESS VALUE CHARGE

FOR EACH VEHICLE IN THE SHIPMENT. OF FIFTEEN CENTS (15 CENTS) FOR

EACH ONE HUNDRED DOLLARS ($100)

OR FRACTION THEREOF BY WHICH

THE DECLARED VALUE OF THE

ENTIRE SHIPMENT EXCEEDS TWENTY

THOUSAND DOLLARS ($20,000)

PER VEHICLE.

"THAT THE BILL OF LADING AND THE SHIPPING ORDER ISSUED FOR ANY SHIPMENT ACCEPTED FOR TRANSPORTATION AT THE RELEASED RATES ESTABLISHED AND MAINTAINED UNDER THE AUTHORITY OF THIS ORDER SHALL HAVE PRINTED OR STAMPED IN BOLD-FACE TYPE ON THE FACE THEREOF, A STATEMENT READING SUBSTANTIALLY AS FOLLOWS:

"UNLESS A GREATER VALUE PER VEHICLE IS DECLARED ON THIS BILL OF LADING, THE SHIPPER HEREBY RELEASES THIS SHIPMENT TO A VALUE NOT EXCEEDING TWENTY THOUSAND DOLLARS ($20,000) FOR EACH VEHICLE TRANSPORTED.'

THE REVERSE OF THE STANDARD FORM GOVERNMENT BILL OF LADING, PROVIDES:

"IT IS MUTUALLY AGREED AND UNDERSTOOD BETWEEN THE UNITED STATES AND CARRIERS WHO ARE PARTIES TO THIS BILL OF LADING THAT---

"5. THIS SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INDICATED ON THE FACE HEREOF.'

THE FACE OF THE GOVERNMENT BILL OF LADING NO. WY-7268457 IS ANNOTATED AS FOLLOWS: "THE ACTUAL VALUE OF THE PROPERTY DESCRIBED HEREIN IS HEREBY SPECIFICALLY STATED BY THE SHIPPER TO BE NOT EXCEEDING $40,375.' BILLS OF LADING NOS. WY-8156441 AND WY-8156442 ARE SIMILARLY ANNOTATED BUT WITH AN "ACTUAL" VALUE STATED TO BE $161,500. ALTHOUGH DESIGNATED AS "ACTUAL" VALUE, AND NOT IN STRICT COMPLIANCE WITH THE FORM SPECIFIED IN ITEM 240, THESE NOTATIONS WERE APPARENTLY INTENDED TO MEET THE TARIFF REQUIREMENT, AND DO COMPLY SUBSTANTIALLY WITH THOSE PROVISIONS. SEE CLARK THREAD CO., INC. V. PILOT FREIGHT CARRIERS, INC., 62 M.C.C. 185, 189. ACCORDINGLY, YOUR CLAIM IS BEING RETURNED TO OUR TRANSPORTATION DIVISION FOR RECOMPUTATION AND ALLOWANCE IN THE AMOUNT FOUND PROPERLY DUE. YOU WILL RECEIVE NOTICE OF THE FINAL SETTLEMENT IN DUE COURSE.

IN ADDITION YOU AGAIN REQUEST:

"* * * A DIRECT REPLY TO THE QUESTION OF CARRIER'S RESPONSIBILITY FOR A UNIT VALUED IN EXCESS OF $20,000. WE HAVE BEEN ATTEMPTING, BUT WITH NO SUCCESS, TO OBTAIN FROM THE GENERAL ACCOUNTING OFFICE A STATEMENT AS TO THE DEGREE OF PROTECTION AFFORDED A CARRIER UNDER THE RELEASED RATE ORDER AND CONDITION 5 OF THE BILL OF LADING.'

IN YOUR PREVIOUS LETTERS OF OCTOBER 19 AND 31, 1960, YOU REQUESTED A "DEFINITIVE AND FINAL DECISION" ON THE HYPOTHETICAL QUESTION WHETHER IN THE EVENT OF A TOTAL LOSS TO A SHIPMENT VALUED IN EXCESS OF $20,000 THE GOVERNMENT WOULD FILE CLAIM FOR THE RELEASED VALUE OF $20,000 PURSUANT TO CONDITION 5 ON THE BACK OF THE GOVERNMENT BILL OF LADING OR FOR THE TOTAL VALUE. YOU STATE THAT THE FACT THAT OUR LETTER IGNORED THIS FEATURE HAS CAUSED YOU RENEWED CONCERN AND HAS PROMPTED YOU TO REITERATE THIS QUESTION "* * * WHICH HAS BEEN RAISED SO MANY TIMES BUT NEVER ANSWERED.'

THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED BY SECTION 8 OF THE DOCKERY ACT OF JULY 3, 1894, 28 STAT. 207, AS AMENDED BY THE BUDGET AND ACCOUNTING ACT OF 1921, 42 STAT. 24, 31 U.S.C. 74, AND BY SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, 31 U.S.C. 82D, TO RENDER ADVANCE DECISIONS TO HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS, AND TO DISBURSING AND CERTIFYING OFFICERS CONCERNING SPECIFIC PAYMENTS TO BE MADE ON VOUCHERS SUBMITTED FOR PAYMENT. OUR OFFICE IS FURTHER AUTHORIZED BY THE BUDGET AND ACCOUNTING ACT, 31 U.S.C. 71, TO RENDER DECISIONS TO CLAIMANTS CONCERNING THE VALIDITY OF THEIR CLAIMS. THERE IS NO PROVISION, HOWEVER, AUTHORIZING OUR OFFICE TO RENDER BINDING DECISIONS TO PRIVATE PARTIES ON HYPOTHETICAL QUESTIONS.

FURTHERMORE, THE DECISION IN ANY GIVEN CASE MUST DEPEND UPON THE PARTICULAR FACTS OF THAT CASE. CONSEQUENTLY, NO UNIVERSALLY APPLICABLE RULE COULD BE STATED. HOWEVER, PRIOR DECISIONS OF OUR OFFICE ON RELATED QUESTIONS MAY BE OF SOME ASSISTANCE TO YOU.

THE EFFECT OF A PROVISION SOMEWHAT SIMILAR TO THE PRESENT CONDITION 5 WAS THE SUBJECT OF A DECISION BY THE COMPTROLLER OF THE TREASURY, PUBLISHED IN 22 COMP. DEC. 107. IN THIS DECISION IT WAS HELD THAT SHIPMENTS ON A GOVERNMENT BILL OF LADING WITHOUT A VALUATION STATED ARE ENTITLED TO THE LOWEST RATE FOR THE CLASS OF ARTICLES SHIPPED. ON THE OTHER HAND, A DECISION OF THE COMPTROLLER GENERAL, REPORTED IN 32 COMP. GEN. 153 (B- 109273), INVOLVED THE LOSS IN TRANSIT OF AN ITEM, THE VALUE OF WHICH HAD BEEN ORALLY DECLARED AT $1,500. THIS VALUATION WAS NOTED ON THE CARRIER'S "RECORD OF GOVERNMENT SHIPMENT," FORM 1083, WHICH ALSO INDICATED AN EXCESS VALUATION CHARGE OF $1.43. THE DECLARATION OF VALUE WAS INADVERTENTLY OMITTED FROM THE BILL OF LADING AND THE CARRIER, THE RAILWAY EXPRESS AGENCY, DENIED LIABILITY FOR AN AMOUNT IN EXCESS OF THE RELEASED VALUATION OF $0.50 PER POUND. THE COMPTROLLER GENERAL HELD, HOWEVER, THAT THE CARRIER WAS LIABLE FOR THE DECLARED VALUE OF $1,500, SINCE THE CARRIER'S AGENT WAS PUT ON NOTICE THAT THE GOODS WERE VALUED AT THAT AMOUNT, AND HAD INSERTED ON THE CARRIER'S FORM AN ADDITIONAL CHARGE TO COVER THE EXCESS VALUE. ALSO SEE 38 COMP. GEN. 257 (B-135792), OVERRULED BY 38 COMP. GEN. 768 (B 138736), BOTH OF WHICH PERTAIN TO VALUATIONS ON SHIPMENTS TRANSPORTED UNDER SECTION 22QUOTATIONS. COPIES OF THE CITED COMPTROLLER GENERAL DECISIONS ARE ENCLOSED FOR YOUR CONVENIENCE.

IT IS HOPED THAT A STUDY OF THESE PRIOR DECISIONS WILL BE OF SOME ASSISTANCE IN CLARIFYING THE SITUATION FOR YOU.