B-135792, OCTOBER 1, 1958, 38 COMP. GEN. 257
Highlights
TRANSPORTATION - RATES - VALUE DETERMINATIONS - BILL OF LADING THE ACCEPTANCE BY A CARRIER OF A SHIPMENT OF INTERNAL COMBUSTION ENGINES UNDER A GOVERNMENT BILL OF LADING WHICH PROVIDES THAT THE SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION UNDER WHICH THE LOWEST RATE IS AVAILABLE PRECLUDES THE CARRIER FROM CLAIMING A HIGHER RATE APPLICABLE TO SHIPMENTS WHEN RELEASED VALUATION HAS BEEN AGREED TO IN WRITING AND THE GOVERNMENT MAY NOT BE DENIED THE LOWER RATE ON THE BASIS THAT THE BILL OF LADING DID NOT COMPLY WITH THE FORM PRESCRIBED. 1958: REFERENCE IS MADE TO YOUR LETTER OF MARCH 10. THE CHARGES INITIALLY CLAIMED BY AND PAID TO YOU FOR THESE SERVICES ARE THOSE COMPUTED ON THE BASIS OF RATES PROVIDED IN PACIFIC COAST TARIFF BUREAU U.S.
B-135792, OCTOBER 1, 1958, 38 COMP. GEN. 257
TRANSPORTATION - RATES - VALUE DETERMINATIONS - BILL OF LADING THE ACCEPTANCE BY A CARRIER OF A SHIPMENT OF INTERNAL COMBUSTION ENGINES UNDER A GOVERNMENT BILL OF LADING WHICH PROVIDES THAT THE SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION UNDER WHICH THE LOWEST RATE IS AVAILABLE PRECLUDES THE CARRIER FROM CLAIMING A HIGHER RATE APPLICABLE TO SHIPMENTS WHEN RELEASED VALUATION HAS BEEN AGREED TO IN WRITING AND THE GOVERNMENT MAY NOT BE DENIED THE LOWER RATE ON THE BASIS THAT THE BILL OF LADING DID NOT COMPLY WITH THE FORM PRESCRIBED. OVERRULED BY 38 COMP. GEN. 768.
TO THE DELTA LINES, INC., OCTOBER 1, 1958:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 10, 1958, CONCERNING A SERIES OF OVERCHARGE CLAIMS ASSERTED AGAINST YOUR COMPANY BY THIS OFFICE INVOLVING THE TRANSPORTATION, INTRASTATE, IN CALIFORNIA, OF INTERNAL COMBUSTION ENGINES FOR ACCOUNT OF THE UNITED STATES. COLLECTION OF THESE OVERCHARGE CLAIMS HAS BEEN HELD IN ABEYANCE PENDING OUR DECISION IN THE MATTER.
THE CHARGES INITIALLY CLAIMED BY AND PAID TO YOU FOR THESE SERVICES ARE THOSE COMPUTED ON THE BASIS OF RATES PROVIDED IN PACIFIC COAST TARIFF BUREAU U.S. GOVERNMENT RATE QUOTATION NO. 2. THE RATES ARE APPLICABLE TO SHIPMENTS OF INTERNAL COMBUSTION ENGINES WHEN NO RELEASED VALUATION HAS BEEN DECLARED OR AGREED TO IN WRITING BY THE SHIPPER. THE RATES USED IN THE AUDIT HERE TO DETERMINE THE ALLOWABLE CHARGES FOR THESE SERVICES ARE THOSE PROVIDED IN THE QUOTATION FOR INTERNAL COMBUSTION ENGINES RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND.
THE SHIPMENTS MOVED UNDER GOVERNMENT BILLS OF LADING WHICH PROVIDED ON THE BACK THEREOF, IN PERTINENT PART, AS FOLLOWS:
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. THERE IS NOTHING ON THE FACE OF THE BILLS OF LADING INVOLVED TO INDICATE THAT THE SHIPMENTS WERE RELEASED AT OTHER THAN THE LOWEST VALUATION; CONSEQUENTLY, IT IS CLEAR THAT THE UNITED STATES, AS PART OF ITS AGREEMENT WITH THE CARRIER, HAS FURNISHED A RELEASED VALUATION IN WRITING TO THE CARRIER, AND THAT THE CARRIER BY ACCEPTING THE BILLS OF LADING AGREES TO ACCEPT THE LOWEST RATE AVAILABLE COMMENSURATE WITH SUCH RELEASED VALUATION.
NOTWITHSTANDING THE MUTUAL AGREEMENT AND UNDERSTANDING AS EXPRESSED BY THE BILL OF LADING TERMS SET FORTH ABOVE, IT IS YOUR CONTENTION THAT THE RELEASED RATE PROVIDED IN THE QUOTATION IS NOT AVAILABLE TO THE UNITED STATES BECAUSE THE RELEASE WAS NOT MADE IN THE FORM PRESCRIBED IN THE QUOTATION.
IN GLICKFELD V. HOWARD VAN LINES, 213 F.2D 723, A SHIPMENT WAS MADE UNDER A BILL OF LADING WHICH WAS NOT IN THE FORM PROVIDED BY THE TARIFF WHICH ESTABLISHED RATES BASED ON RELEASED VALUATIONS. THERE THE COURT REFUSED TO VOID THE CONTRACT BECAUSE OF THE DEVIATION IN FORM AND HELD THE PARTIES TO THE TERMS OF THEIR SUBSTANTIVE AGREEMENT ON THE GROUND THAT DENIAL OF THE REDUCED RATE TO THE SHIPPER OR THE REQUIREMENT THAT THE CARRIER PAY THE FULL VALUE OF THE PROPERTY "WOULD BE THE ACME OF ADHERENCE TO FORM AND CONTRARY TO THE PLAINEST PRINCIPLES OF FAIR DEALING.'
IN AMERICAN RY. EXP. CO. V. LINDENBERG, 260 U.S.C. 584, IT WAS STATED:
HAVING ACCEPTED THE BENEFIT OF THE LOWER RATE DEPENDENT UPON THE SPECIFIED VALUATION, THE RESPONDENT (SHIPPER) IS ESTOPPED FROM ASSERTING A HIGHER VALUE. TO ALLOW HIM TO DO SO WOULD BE TO VIOLATE THE PLAINEST PRINCIPLES OF FAIR DEALING.
IT WOULD SEEM THAT THE REVERSE OF THAT PRINCIPLE IS ALSO TRUE; A CARRIER HAVING ACCEPTED THE BENEFIT OF A RELEASED VALUATION IS ESTOPPED FROM ASSERTING A HIGHER RATE.
IF ANY OF THESE SHIPMENT HAD BEEN DAMAGED IN TRANSIT, THE PROVISIONS OF CONDITION 5 IN THE BILL OF LADING WOULD CLEARLY HAVE PRECLUDED THE UNITED STATES FROM RECOVERING DAMAGES IN EXCESS OF $2.50 PER POUND. HAVING ACCEPTED THE BENEFIT OF THIS LIMITATION OF LIABILITY, IT SEEMS CLEAR THAT YOU CANNOT, AFTER THE SHIPMENTS HAVE MOVED, LAWFULLY DENY THE UNITED STATES THE BENEFIT OF THE LOWER RATE FOR WHICH THE RELEASED VALUATION WAS GIVEN. THE AMOUNTS STATED IN OUR NOTICES OF OVERPAYMENT, FORMS 1003, DO NOT APPEAR TO BE IN ERROR OTHERWISE, AND SHOULD BE PROMPTLY REFUNDED IN ORDER TO OBVIATE THE NECESSITY FOR COLLECTION BY SETOFF OR OTHER MEANS.