B-165626, SEP 12, 1969

B-165626, SEP 12, 1969

PRECIS-UNAVAILABLE

TO UNITED VAN LINES, INC.:

WE REFER TO YOUR LETTER OF AUGUST 5, 1969, REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF MAY 22, 1969, B-165626, AFFIRMED JUNE 18, 1969, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $293.68 BY OUR SETTLEMENT OF NOVEMBER 5, 1968 (OUR CLAIM FILE TK-879558, YOUR BILL 164- 115-66-A).

YOUR CLAIM WAS FOR ADDITIONAL FREIGHT CHARGES FOR EXCLUSIVE USE OF VEHICLE SERVICE ON A SHIPMENT OF 65 BOXES OF ELECTRONIC EQUIPMENT (SIGNAL MONITOR), FSH 6625AS02936, WEIGHING 13,733 POUNDS, WHICH MOVED FROM WARRENTON, VIRGINIA, TO LOWRY AIR FORCE BASE, COLORADO, UNDER BILL OF LADING C-710726 DATED MARCH 10, 1966, WHICH CONTAINS NOTATIONS, "'SPECIAL EXPEDITE' AND 'DDD' (DESIRED DELIVERY DATE) 14 MAR 66."

AS WAS STATED IN OUR DECISION OF MAY 22, 1969, RULE 5(C) OF SUPPLEMENT 8 TO HOUSEHOLD GOODS CARRIERS BUREAU AGENT TARIFF NO. 107-B, MF-I.C.C. NO. 121 AND APPENDIX A OF UNITED VAN LINES, INC., RATE TENDER 1352 AUTHORIZES A SHIPPER TO ORDER A VEHICLE OF SPECIFIC CUBIC CAPACITY FOR ITS EXCLUSIVE USE BUT PROVIDES THAT THE

"BILL OF LADING OR FREIGHT BILL TO BE MARKED OR STAMPED --- EXCLUSIVE USE OF A - - - CU. FT. VEHICLE ORDERED."

IN PRESENTING YOUR CLAIM, YOU RELY ON A GOVERNMENT BILL OF LADING CORRECTION NOTICE, DD FORM 1352, DATED SEPTEMBER 28, 1967, APPARENTLY PREPARED AT YOUR REQUEST - SOME 18 MONTHS AFTER COMPLETION OF THE SHIPMENT - BY THE TRANSPORTATION OFFICER AT VINT HILL FARMS STATION, WARRENTON, VIRGINIA, THE ORIGIN OF THE SHIPMENT. YOU NOW TAKE THE POSITION THAT IN DISALLOWING YOUR CLAIM THIS OFFICE HAS "DISCREDITED A STATEMENT OF FACT OF AN ADMINISTRATIVE OFFICER WITHOUT GIVING A SUFFICIENT REASON TO SUPPORT THE ACTION."

AT THE OUTSET, IT SHOULD BE STATED THAT THERE IS NOTHING CONTAINED IN OUR DECISION OF JULY 10, 1969, THAT WAS INTENDED TO IMPLY THAT THIS OFFICE QUESTIONED THE VERACITY OF ANY STATEMENT IN THE CORRECTION NOTICE PRESENTED WITH YOUR CLAIM. THE CLAIM WAS DISALLOWED BECAUSE, IN OUR VIEW, THE TARIFF AND SECTION 22 QUOTATION INVOLVED REQUIRE AS A CONDITION PRECEDENT TO ENTITLEMENT TO EXCLUSIVE USE CHARGES THAT THE BILL OF LADING BE ANNOTATED TO SHOW EXCLUSIVE USE OF VEHICLE WAS ORDERED BY THE SHIPPER AND WE CANNOT GIVE LEGAL EFFECT TO AN ADMINISTRATIVE CERTIFICATE MADE LONG AFTER THE SHIPMENT WAS COMPLETED TO ESTABLISH EXCLUSIVE USE OF VEHICLE WAS ORDERED THOUGH NOT REFELECTED IN THE SHIPPING DOCUMENTS AT THE TIME THEY WERE ISSUED.

THE INTERSTATE COMMERCE COMMISSION, IN GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603 (1951), CITING THE WELL-ESTABLISHED PRINCIPLE THAT RULES IN A TARIFF CANNOT BE WAIVED (DAVIS V. HENDERSON, 266 U.S. 92 (1924); NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD OF N.J., 216 I.C.C. 105 (1936)), HELD THAT THE OMISSION OF A REQUIRED BILL OF LADING ENDORSEMENT WAS A DEFECT FATAL TO THE APPLICATION OF TRANSPORTATION CHARGES BASED ON AN EXCLUSIVE USE OF VEHICLE RULE EVEN THOUGH EXCLUSIVE USE OF VEHICLE SERVICE ACTUALLY WAS REQUESTED AND FURNISHED. SEE, ALSO, SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CAR. CASES 710 (1953); CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 276. IN THESE CIRCUMSTANCES, THE OMISSION OF THE REQUIRED BILL OF LADING ANNOTATION, A DEFECT WHICH IS NOT CURED BY LATER STATEMENTS OF SHIPPERS' INTENTIONS, SUCH AS IS CONTAINED IN THE CORRECTION NOTICE SUBMITTED BY YOU, DEFEATS YOUR CLAIM THAT CHARGES FOR THE EXCLUSIVE USE OF A VEHICLE ARE APPLICABLE TO THIS SHIPMENT.

THE PRINCIPLE PROHIBITING THE WAIVER OF TARIFF RULES IS BASED ON SECTION 217(B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317(B), WHICH PROVIDES THAT, EXCEPT FOR TRANSPORTATION FURNISHED FREE OR AT REDUCED RATES UNDER SECTION 22 OF THE ACT, 49 U.S.C. 22, "NO COMMON CARRIER BY MOTOR VEHICLE SHALL CHARGE OR DEMAND OR COLLECT OR RECEIVE A GREATER OR LESS OR DIFFERENT COMPENSATION FOR TRANSPORTATION OR FOR ANY SERVICE IN CONNECTION THEREWITH BETWEEN THE POINTS ENUMERATED IN SUCH (ITS) TARIFF THAN THE RATES, FARES AND CHARGES SPECIFIED IN THE TARIFFS IN EFFECT AT THE TIME." THUS, UNLESS AUTHORIZED UNDER SECTION 22 OF THE ACT, ANY DEVIATION FROM A CARRIER'S PUBLISHED TARIFF IS PROHIBITED BECAUSE IT WOULD EFFECTIVELY DEPRIVE SHIPPERS OF THE EQUALITY OF TREATMENT DEMANDED BY SECTION 217(B). SEE DAVIS V. CORNWELL, 264 U.S. 560 (1924).

IT IS OUR VIEW THAT A CORRECTION NOTICE ISSUED LONG AFTER THE COMPLETION OF THE TRANSPORTATION CANNOT ACCOMPLISH SOMETHING THAT THE LAW DOES NOT PERMIT. SEE 45 COMP. GEN. 384.

THE CONTENTS OF YOUR LETTER OF AUGUST 5, 1969, HAVE BEEN THOROUGHLY CONSIDERED AND THERE IS NOTHING CONTAINED THEREIN WHICH WOULD WARRANT ANY CHANGE IN THE CONCLUSION REACHED IN OUR DECISION OF MAY 22, 1969, WHICH IS AGAIN ADHERED TO. ..END :