B-152282, JAN. 9, 1964

B-152282, JAN. 9, 1964

TO NAVAJO FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 9 (ACKNOWLEDGED AUGUST 20) AND NOVEMBER 8, 1963, REQUESTING THAT WE PAY YOUR CLAIM 03286 (OUR TK- 749229) FOR $133.22 ADDITIONAL FREIGHT CHARGES OR, IN THE ALTERNATIVE, FURNISH YOU REFERENCE TO ANY LEGAL AUTHORITY FOR THE DISALLOWANCE OF YOUR CLAIM. YOU, IN EFFECT, REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE OF APRIL 18, 1963, WHICH DISALLOWED YOUR CLAIM FOR $133.22 ADDITIONAL CHARGES ON YOUR SUPPLEMENTAL BILL NO. GE-199-661 A.

THE RECORD SHOWS THAT A SHIPMENT OF TURBINES COMBINED WITH GENERATORS, WEIGHING 28,960 POUNDS, WAS TRANSPORTED FROM MARE ISLAND, CALIFORNIA, TO FITCHBURG, MASSACHUSETTS, UNDER GOVERNMENT BILL OF LADING A-1324703, DATED MARCH 21, 1961. THE ROUTING BLOCK OF THE BILL OF LADING SHOWS ,GENERAL EXPRESSWAYS" AND THE BLOCK FOR THE NAME OF THE ORIGIN TRANSPORTATION COMPANY SHOWS ,NAVAJO FREIGHT LINES," WHILE IN THE BLOCK DESIGNATED "SIGNATURE OF AGENT" THERE IS THE HANDWRITTEN SIGNATURE "C-LINES" PER "GS.' THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BOTTOM OF THE BILL OF LADING SHOWS THAT NAVAJO FREIGHT LINES MADE DELIVERY ON MARCH 27, 1961. A COPY OF THE DESTINATION FREIGHT BILL SHOWS ROUTING VIA "NFL CHCO GEX BYD,"AND ALTHOUGH THE BILL OF LADING SHOWS THAT YOUR COMPANY MADE DELIVERY, THE TRANSPORTATION CHARGES WERE WAIVED TO GENERAL EXPRESSWAYS. THE FREIGHT BILL ALSO INDICATES THAT A PAYMENT OF $74.30 WAS MADE TO THE ORIGIN CARRIER, PRESUMABLY C-LINES.

FOR THIS SERVICE YOUR ORIGINALLY CLAIMED AND WERE PAID $1,615.97, COMPUTED ON THE BASIS OF A JOINT THROUGH CLASS 45 RATE OF $5.58 PER 100 CLASS 45 RATE OF $5.12 PER 100 POUNDS--- AUTHORIZED BY ITEM 300 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION I.C.C. NO. 10 AND PUBLISHED IN TRANSCONTINENTAL FREIGHT BUREAU TARIFF NO. 1015, MF-I.C.C. NO. 1579, AS MAXIME--- WAS APPLICABLE AND WOULD PRODUCE LOWER CHARGES. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERCHARGE OF $133.22, WHICH YOU PROTESTED BY LETTER OF APRIL 30, 1963, STATING THAT THE SHIPMENT WAS ORIGINATED BY C-LINE EXPRESS, WHICH CARRIER WAS NOT A PARTY TO ITEM 300 OF RMMTB QUOTATION I.C.C. NO. 10. UPON INVESTIGATION, THE DEPUTY TRANSPORTATION OFFICER, MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, ADVISED IN LETTER OF JUNE 19, 1962, THAT THE SHIPMENT WAS TENDERED TO C- LINE EXPRESS, WHICH WAS ACTING AS AGENT FOR NAVAJO FREIGHT LINES. A COPY OF THIS LETTER WAS FURNISHED YOU WITH A REQUEST FOR REFUND OF THE OVERCHARGE, AND UPON YOUR FAILURE TO REFUND THE OVERCHARGE WE EFFECTED COLLECTION BY DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOU. YOU PRESENTED SUPPLEMENTAL BILL NO. GE-199-661-A (GENERAL EXPRESSWAYS, INC., VOUCHER) RECLAIMING THE AMOUNT OF THE OVERCHARGE AND OUR OFFICE DISALLOWED YOUR BILL IN OUR SETTLEMENT CERTIFICATE OF APRIL 18, 1963. YOU OBJECT TO THE SETTLEMENT ON THE GROUND THAT IT IS NOT POSSIBLE FOR C-LINE EXPRESS TO OPERATE AS YOUR AGENT BECAUSE BOTH YOUR COMPANY AND C-LINE ARE CERTIFICATED REGULAR ROUTE CARRIERS, AND THERE IS NO AUTHORITY

"FOR ONE DULY CERTIFICATED REGULAR ROUTE CARRIER TO OPERATE AS THE AGENT OF ANOTHER DULY AUTHORIZED CERTIFICATED REGULAR ROUTE CARRIER IN DEFIANCE OF THE INTERSTATE COMMERCE COMMISSION REGULATIONS THAT THE RATES AND CHARGES APPLICABLE VIA C-LINE EXPRESS JOINTLY WITH NAVAJO FREIGHT LINES, INC. ARE TO BE APPLIED TO THIS MOVEMENT.'

THE EXISTENCE OF AN AGENCY RELATIONSHIP IS A QUESTION OF FACT, AND THE BURDEN OF PROVING THE AGENCY IS UPON THE PARTY WHO ASSERTS IT. BOGUE ELECTRIC MANUFACTURING CO. V. COCONUT GROVE BANK, 629 F. 2D 1, 4 (1959); GOSNEY V. METROPOLITAN LIFE INSURANCE CO., 114 F. 20 649, 653 (1940); TROIETTO V. C. H. HAMMOND CO., 110 F. 2D 135, 137 (1940); MCDONALD V. STONE, 86A 2D 624, 626 (1952); MILLER V. DITTMAIER, 290 P. 2D 765, 768 (1955). THE EVIDENCE OF RECORD SEEMS TO PROVE THE EXISTENCE OF AN AGENCY RELATIONSHIP BETWEEN YOUR COMPANY AND C-LINE EXPRESS. THE BILL OF LADING NOTATIONS BEAR THIS OUT AS WELL AS THE LETTER OF SEPTEMBER 3, 1963, SIGNED BY MR. THOMAS H. DOWD, WESTERN REGIONAL MANAGER, GOVERNMENT TRAFFIC, OF YOUR COMPANY AND ADDRESSED TO SUPPLY OFFICER, MARE ISLAND NAVAL SHIPYARD, WHICH STATES:

"PLEASE BE ADVISED THAT WE HAVE AUTHORIZED C-LINE EXPRESS TO ACT AS OUR AGENT FOR PICK-UP AND DELIVERY AT YOUR ACTIVITY.' THIS STATEMENT IS FURTHER EXPLAINED BY LETTER OF OCTOBER 29, 1963, SIGNED BY MR. LAWRENCE A. WILLIAMS, SALES REPRESENTATIVE, GOVERNMENT TRAFFIC, OF YOUR COMPANY WHO STATES, IN PART,

"I REGRET THAT I AM UNABLE TO DETERMINE HOW FAR BACK MR. DOWD USED C-LINE AS OUR AGENT BUT FEEL THAT IT IS SAFE TO ASSUME IT WAS AS FAR BACK AS 1961 AND PERHAPS EVEN FARTHER.'

ALL CONFIRM THE EXISTENCE OF AN AGENCY RELATIONSHIP.

IT IS APPARENTLY YOUR CONTENTION THAT INTERSTATE COMMERCE COMMISSION REGULATIONS PRECLUDE ONE CERTIFICATED REGULAR ROUTE CARRIER FROM OPERATING AS THE AGENT OF ANOTHER AUTHORIZED CERTIFICATED CARRIER. WE HAVE BEEN UNABLE TO FIND ANY SUCH PROHIBITION; ON THE CONTRARY THERE APPEAR MANY CIRCUMSTANCES WHERE SUCH PRACTICE EXISTS. SEE, FOR INSTANCE, ADVANCE TRANSPORTATION CO. V. ALLARD, 305 I.C.C. 751, 753 (1959), IN WHICH THE COMMISSION REFERRED TO ONE COMMON CARRIER BY MOTOR VEHICLE PERFORMING PICK -UP AND DELIVERY SERVICE FOR ANOTHER COMMON CARRIER BY MOTOR VEHICLE. CARRIER HAS A RIGHT TO PERFORM ANY TRANSPORTATION SERVICE THAT IS REQUIRED OF IT, BUT MAY ELECT TO HIRE THE INDUSTRY OR SOME ONE ELSE TO PERFORM THAT DUTY. EDGE MOOR IRON CO. V. DIRECTOR GENERAL, 61 I.C.C. 537, 539 (1921). WHATEVER TRANSPORTATION SERVICE OR FACILITY THE LAW REQUIRES THE CARRIERS TO SUPPLY THEY HAVE THE RIGHT TO FURNISH. ATCHISON, T. AND S.F. RY.CO. V. UNITED STATES, 232 U.S. 199 (1914). A CARRIER MAY, HOWEVER, EMPLOY AN AGENT TO PERFORM TRANSPORTATION SERVICE FOR IT. UNITED STATES V. FRUIT GROWERS EXPRESS CO., 279 U.S. 363 (1929). SEE ALSO PROPRIETY OF OPERATING PRACTICES--- TERMINAL SERVICES, 209 I.C.C. 11, 20 (1935).

WHERE A MOTOR CARRIER PERFORMS A PICK-UP AND DELIVERY SERVICE FOR ANOTHER COMMON CARRIER BY MOTOR VEHICLE BY PARTICIPATING IN TARIFFS OF THE LATTER AS AN ORIGINATING OR DELIVERING CARRIER, THE PICK-UP AND DELIVERY OPERATIONS ARE THOSE OF A COMMON CARRIER, FOR WHICH ADDITIONAL AUTHORITY AS A CONTRACT CARRIER IS NOT REQUIRED. HOWEVER, THE TARIFF RATES MUST BE OBSERVED BY THE CARRIER PERFORMING THE PICK UP AND DELIVERY SERVICE. H.P. GIBBS CONTRACT CARRIER APPLICATION, 10 M.C.C. 625 (1938). ANOTHER INSTANCE WHERE A CERTIFICATED COMMON CARRIER ACTS AS AGENT FOR ANOTHER IS WHERE A MOTOR COMMON CARRIER SERVES A PARTICULAR POINT WITH ITS OWN VEHICLES, AND PICK-UP AND DELIVERY SERVICE AT THAT POINT IS PERFORMED BY ANOTHER CARRIER, ACTING AS ITS AGENT. SUCH A SITUATION HAS BEEN RECOGNIZED BY THE COMMISSION IN A CASE WHERE IT HAS HELD THAT THIS METHOD OF OPERATION DOES NOT DIVEST THE LINE-HAUL CARRIER OF ITS "GRANDFATHER'S RIGHTS.' WALTZ TRANSPORTATION, INC., COMMON CARRIER APPLICATION, 10 M.C.C. 30, 32 (1938). ALSO, A COMMON CARRIER DOES NOT CEASE TO BE SUCH MERELY BECAUSE THE SERVICES WHICH IT RENDERS TO THE PUBLIC ARE PERFORMED AS AN AGENT OF ANOTHER. UNITED STATES V. BROOKLYN EASTERN DISTRICT TERMINAL, 249 U.S. 296 1919); UNION STOCK YARD AND TRANSIT CO. V. UNITED STATES, 308 U.S. 213 (1939); STATUS OF ALLEGHENY AND SOUTH SIDE RY.CO., 277 I.C.C. 119, 121 (1950).

THE BILL OF LADING UNDER WHICH THE SHIPMENT WAS TENDERED SHOWS IN THE BLOCK ENTITLED "TARIFF OR SPECIAL RATE AUTHORITIES" THE NOTATION "TARIFF RATES NUMBER 10, ITEM 300 AND TCFE-1015-MINIMUM 21000 NUMBER T/L.' THIS NOTATION REFERS TO ROCKY MOUNTAIN MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION I.C.C. NO. 10, A TENDER WHICH OFFERS REDUCED RATES TO THE GOVERNMENT UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT. 49 U.S.C. 22. THE OVERCHARGE OF $133.22 IS BASED UPON THIS QUOTATION. ITEM 300 OF QUOTATION I.C.C. NO. 10 SHOWS THAT ITS PROVISIONS APPLY ON SHIPMENTS MOVING FROM STATIONS IN CALIFORNIA WHICH ARE SHOWN IN RMTD WITH SERVICE BY THE CARRIERS NAMED IN NOTE A BELOW. NOTE A PROVIDES THAT "THE RATES PROVIDED FOR IN THIS ITEM ARE APPLICABLE ONLY OVER THE LINES OF THE FOLLOWING CARRIERS" AND NAVAJO FREIGHT LINES, INC., IS SHOWN AS CARRIER NO. N180 IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANSCONTINENTAL TERRITORIAL DIRECTORY NO. 20-C, MF-I.C.C. NO. 123. MOREOVER, C-LINE EXPRESS IS SHOWN AS CARRIER NO. C212 IN RMTD. SINCE NAVAJO FREIGHT LINES IS SHOWN IN NOTE A OF ITEM 300 OF QUOTATION NO. 10-C AND ALSO IN RMTD IT APPEARS THAT SUCH RATES ARE FOR APPLICATION. QUOTATION NO. 10-C CONTAINS NO OTHER PROVISIONS PERTINENT THAT WOULD RESTRICT THE APPLICATION OF THE RATES QUOTED THEREIN. SINCE NAVAJO FREIGHT LINES WAS ACTING THROUGH ITS AGENT, C LINE EXPRESS, THERE APPEARS NO REQUIREMENT THAT C-LINE EXPRESS BE SHOWN IN NOTE A OF ITEM 300. THIS IS TRUE SINCE THE ACT OF THE AGENT WITHIN THE SCOPE OF HIS AUTHORITY IS THE ACT OF HIS PRINCIPAL. DIETRICH V. U.S. SHIPBUILDING BOARD EMERGENCY FLEET CORP., 9 F. 2D 733 (1925).

ACCORDINGLY, IN VIEW OF THE REDUCED RATES OFFERED BY QUOTATION NO. 10--- SUCH QUOTATION BEING APPLICABLE FOR ACCOUNT OF YOUR COMPANY-- PURSUANT TO 49 U.S.C. 22, THE DISALLOWANCE OF YOUR CLAIM FOR $133.22 IS SUSTAINED.