B-140131, MAR. 28, 1960

B-140131, MAR. 28, 1960

TO BELL TRANSPORTATION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1959, WHICH IS IN EFFECT A REQUEST FOR REVIEW OF OUR SETTLEMENT DISALLOWING YOUR CLAIM, PER SUPPLEMENTAL BILL A-03525-B, FOR $149.80 ADDITIONAL TRANSPORTATION CHARGES ARISING OUT OF A SHIPMENT OF ONE POWER TRIP HAMMER WHICH MOVED FROM WARNER ROBINS, GEORGIA, TO ARDMORE AIR FORCE BASE, OKLAHOMA, UNDER GOVERNMENT BILL OF LADING AF-8212142, DURING JUNE 1958.

FOR THESE SERVICES YOU ORIGINALLY CLAIMED AND WERE PAID $246.67, COMPUTED ON THE BASIS OF AN ALABAMA PERMIT CHARGE OF $3.07, PLUS A RATE OF $3.48 PER 100 POUNDS APPLIED TO A MINIMUM WEIGHT OF 7,000 POUNDS, COVERING THE ARTICLE INVOLVED FOR DISTANCES BETWEEN 961 AND 970 MILES. THIS RATE IS NAMED IN ITEM 300 OF BELL TRANSPORTATION COMPANY LOCAL MOTOR FREIGHT COMMODITY TARIFF NO. 4, MF-I.C.C.NO. 54, AND OIL FIELD HAULERS ASSOCIATION, INC., MILEAGE GUIDE NO. 2, MF I.C.C.NO. 13. YOU NOW SEEK PAYMENT OF AN ADDITIONAL $149.80, COMPUTED ON THE BASIS OF THE ALABAMA PERMIT CHARGE OF $3.07, PLUS THE COMMODITY DISTANCE RATE FOR 961 TO 970 MILES OF $2.41 PER 100 POUNDS APPLIED TO A MINIMUM WEIGHT OF 14,000 POUNDS, ON THE AUTHORITY OF THE EXCLUSIVE USE-OF-VEHICLE PROVISIONS CONTAINED IN ITEM 145 OF YOUR TARIFF NO. 4.

THIS SHIPMENT, BECAUSE OF OVERSIZE DIMENSIONS, MOVED THROUGH ALABAMA UNDER SPECIAL AUTHORITY OBTAINED BY YOU FROM THE PERMIT SECTION OF THE STATE HIGHWAY DEPARTMENT, WHICH AUTHORITY WAS IN THE FORM OF A TELEGRAM READING AS FOLLOWS:

"YOU AUTHORIZED MOVE MACHINE OVER STATE HIGHWAYS FROM GEORGIA LINE TO MISSISSIPPI LINE HEIGHT 13 FT. 10 IN. YOU RESPONSIBLE ANY DAMAGES TO STATE OR YOURSELF PERMIT GOOD 30 DAYS NOT GOOD SATURDAYS SUNDAYS DAYLIGHT MOVE.'

YOU CLAIM THAT THIS SPECIAL PERMIT REQUIRED EXCLUSIVE-USE-OF-VEHICLE SERVICE SUCH AS ENUMERATED IN ITEM 145 OF YOUR TARIFF, WHICH PROVIDES IN PERTINENT PART THAT:

"WHERE EXCLUSIVE USE OF A SINGLE VEHICLE FOR TRANSPORTATION OF A SHIPMENT WEIGHING MORE THAN FIFTEEN HUNDRED POUNDS, IS:

(B) IN ACCORDANCE WITH PROVISIONS OF A SPECIAL PERMIT REQUIRED BY ANY GOVERNMENTAL AGENCY, STATE OR MUNICIPAL REGULATORY BODY, OBTAINED, CHARGE FOR SUCH EXCLUSIVE USE SHALL BE BASED ON APPLICABLE COMMODITY RATE AT ACTUAL WEIGHT, SUBJECT:

(1) WHERE EQUIPMENT OTHER THAN LOWBOY EQUIPMENT IS OBTAINED, TO MINIMUM WEIGHT OF 14,000 POUNDS PER TRUCK USED;

* * * * * * * EACH BILL OF LADING TO BE MARKED OR STAMPED:

"EXCLUSIVE USE OF VEHICLE REQUIRED BY SPECIAL PERMIT," * * *"

ALTHOUGH YOU ADMIT THAT THE BILL OF LADING ANNOTATION REQUIRED BY ITEM 145 OF YOUR TARIFF WAS OMITTED FROM THE INVOLVED BILL OF LADING, YOU STILL CONTEND THAT EXCLUSIVE-USE CHARGES ARE APPLICABLE BECAUSE THE SHIPMENT WAS A SPECIAL PERMIT LOAD REQUIRING MORE EXPENSIVE HANDLING DUE TO RESTRICTIONS PLACED UPON THE HOURS OF MOVEMENT AND THE EXTRA DEGREE OF CARE REQUIRED IN HANDLING THE OVERSIZE SHIPMENT. YOU FURTHER STATE THAT IT WAS NEVER INTENDED THAT FAILURE TO COMPLY WITH THE PHRASE PROVIDING FOR NOTATION OF BILLS OF LADING WOULD PRECLUDE APPLICATION OF THE ITEM, ESPECIALLY WHERE GOVERNMENT EMPLOYEES MAKE OUT THE BILLS OF LADING.

FROM OUR READING OF THE PERMIT ISSUED BY THE ALABAMA STATE HIGHWAY DEPARTMENT WE DO NOT UNDERSTAND THAT ITS PROVISIONS REQUIRED EXCLUSIVE USE -OF-VEHICLE SERVICE. THE WORDS "EXCLUSIVE USE" ARE NOT CONTAINED IN THE PERMIT, NOR CAN THE REQUIREMENT OF EXCLUSIVE-USE-OF-VEHICLE SERVICE BE INFERRED FROM ITS PROVISIONS. BUT, EVEN ASSUMING THAT EXCLUSIVE-USE-OF- VEHICLE SERVICE WAS REQUIRED BY THE PROVISIONS OF THE PERMIT, YOUR CLAIM STILL IS NOT PROPERLY ALLOWABLE IN THE LIGHT OF PERTINENT DECISIONS RENDERED BY THE INTERSTATE COMMERCE COMMISSION. IN GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603--- A CASE INVOLVING THE APPLICABILITY OF EXCLUSIVE-USE CHARGES WHEREIN IT WAS FOUND THAT EXCLUSIVE -USE-OF-VEHICLE SERVICE WAS ACTUALLY ORDERED AND PERFORMED ALTHOUGH NO SUCH NOTATION WAS PLACED UPON THE BILL OF LADING AS REQUIRED BY TARIFF--- THE COMMISSION ANSWERED A CONTENTION SIMILAR TO YOURS BY SAYING THAT:

"IT APPEARS THAT DEFENDANT'S (CARRIER-S) POSITION IS THAT ITS FAILURE PROPERLY TO ENDORSE THE BILL OF LADING AND FREIGHT BILL DOES NOT RENDER INAPPLICABLE THE PROVISIONS OF THE RULE GOVERNING THE CHARGES TO BE ASSESSED, AND THAT THE REQUIREMENT FOR SUCH ENDORSEMENT IS SIMPLY A MATTER OF FORM, THE ABSENCE OF WHICH DOES NOT AFFECT THE REMAINING PROVISIONS OF THE RULE. WE THINK NOT. IT IS WELL SETTLED THAT A RULE CONTAINED IN A TARIFF IS A PART OF THE TARIFF, AND CANNOT BE WAIVED. SEE BIENVILLE WAREHOUSES CORP., INC. V. ILLINOIS CENTRAL R.CO., 208 I.C.C. 583 AND NATURAL PRODUCTS REFINING CO. V. CENTRAL R.CO. OF N.J., 216 I.C.C. 105, BOTH CITING DAVIS V. HENDERSON 266 U.S. 92.'

SIMILAR REASONING WAS USED BY THE COMMISSION IN SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., NO. MCC-1410, 9 FEDERAL CARRIER CASES 710, WHEREIN IT WAS HELD THAT, EXCLUSIVE-USE CHARGES WERE INAPPLICABLE BECAUSE OF THE LACK OF STRICT COMPLIANCE WITH THE TARIFF ANNOTATION REQUIREMENTS EVEN THOUGH THE SHIPPER ACTUALLY PLACED THE NOTATION "EXCLUSIVE USE OF TRUCK--- J. P. JOYCE (SIGNED)" ON THE BILL OF LADING. THIS DECISION IS IN ACCORDANCE WITH THE PRINCIPLE THAT THE BILL OF LADING IS THE CARRIER'S DOCUMENT AND THAT THE RESPONSIBILITY FOR ITS PROPER EXECUTION RESTS WITH THE CARRIER, NOTWITHSTANDING THAT THE SHIPPER VOLUNTARILY ASSUMES THE BURDEN OF ITS PREPARATION. SEE 49 U.S.C. 20 (11) AND 319. RECOGNITION OF SUCH PRINCIPLE IS REFLECTED IN ITEM 40 OF YOUR TARIFF NO. 4 RELATING TO THE PROPER ISSUANCE OF BILLS OF LADING BY YOUR AGENTS.

ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM FOR $149.80 WAS PROPER, AND IT IS SUSTAINED.