B-141366, MAR. 10, 1960

B-141366, MAR. 10, 1960

TO HENNIS FREIGHT LINES, INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24, 1959, YOUR CLAIM NO. OC-1429-6-58, HENNIS PRO NOS. 1-572726 AND 1-572785, IN WHICH YOU REQUEST REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES IN THE AMOUNT OF $333.65 ALLEGED TO BE DUE FOR THE EXCLUSIVE USE OF THE VEHICLES IN CONNECTION WITH TWO MIXED TRUCKLOAD SHIPMENTS OF VARIOUS COMMODITIES, WEIGHING 17,911 POUNDS AND 21,443 POUNDS, FROM MARION, OHIO, TO FORT BRAGG, NORTH CAROLINA, UNDER GOVERNMENT BILLS OF LADING WY-7171924 AND WY-717913, RESPECTIVELY, DURING NOVEMBER 1956.

BY OUR CERTIFICATE OF SETTLEMENT, DATED NOVEMBER 9, 1959, YOUR CLAIM FOR THE PREMIUM CHARGES PROVIDED IN CENTRAL AND SOUTHERN MOTOR FREIGHT TARIFF ASSOCIATION, INC., AGENT'S TARIFF NO. 100-A, MF I.C.C.NO. 140 FOR THE EXCLUSIVE USE OF THE VEHICLES WAS DISALLOWED FOR THE REASON THAT NEITHER BILL OF LADING WAS MARKED OR STAMPED WITH THE NOTATION REQUIRED BY THE TARIFF. AT THE TIME THESE SHIPMENTS MOVED ITEM NO. 50-A OF THE TARIFF PROVIDED:

"EXCLUSIVE USE OF A VEHICLE OR VEHICLES, MAY BE UTILIZED BY A SHIPPER FOR THE TRANSPORTATION OF A SHIPMENT, SUBJECT TO THE FOLLOWING PROVISIONS:

"B. EACH BILL OF LADING COVERING THE SHIPMENT MUST BE ENDORSED BY SHIPPER AS FOLLOWS:

"EXCLUSIVE USE OF VEHICLE (OR VEHICLES) ORDERED BY SHIPPER.'"

IN ADDITION ARMY REGULATION NO. SR-55-155-1, EFFECTIVE APRIL 7, 1954, PROVIDED, IN REGARD TO EXCLUSIVE USE, AS FOLLOWS:

"90. EXCLUSIVE VEHICLE SERVICE. WHEN EXCLUSIVE USE OF VEHICLE IS REQUESTED OF MOTOR CARRIERS, THE BILL OF LADING MUST BE INDORSED "EXCLUSIVE USE OF VEHICLE REQUESTED BY THE GOVERNMENT," IN ORDER TO AUTHORIZE AND FACILITATE PAYMENT FOR SUCH SERVICE BY THE DISBURSING OFFICER. THE ISSUING OFFICER (OR OTHER SHIPPER IN HIS BEHALF) WILL ALSO PLACE ON SUCH BILL OF LADING THE FOLLOWING BLANK CERTIFICATE: "I CERTIFY THAT EXCLUSIVE VEHICLE SERVICE WAS FURNISHED FROM ------------- ---------- ----------TO-----------------------------------, ------------ ------------ -------------------------------, -------------- (AGENT OF DESTINATION CARRIER) (DATE). IF EXCLUSIVE VEHICLE SERVICE IS REQUESTED AFTER THE SHIPMENT HAS BEEN PICKED UP AND THE BILL OF LADING IS NOT AVAILABLE FOR PROPER ANNOTATION, WRITTEN CONFIRMATION OF SUCH REQUEST WILL BE FURNISHED THE ORIGINATING CARRIER. THIS CONFIRMATION WILL CONTAIN THE SAME INDORSEMENTS AS WOULD HAVE APPEARED ON THE BILL OF LADING.'

BOTH PUBLISHED TARIFFS AND ADMINISTRATIVE REGULATIONS HAVE THE FORCE OF LAW. PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, 542; PENNSYLVANIA R.CO. V. INTERNATIONAL COAL CO., 230 U.S; 184, 197; ATLANTIC COAST LINE R.CO. V. ATLANTIC BRIDGE CO., 57 F.2D 654, 655; AND LICHTEN V. EASTERN AIR LINES, 87 FED.SUPP. 691. HOWEVER, NEITHER BILL OF LADING BORE ANY NOTATION CONCERNING EXCLUSIVE USE.

IN SUPPORT OF YOUR REQUEST FOR REVIEW, YOU SUBMIT A COPY OF A LETTER, DATED SEPTEMBER 3, 1958, FROM THE MARION ENGINEER DEPOT, U.S. ARMY, MARION, OHIO, SIGNED BY ONE OLIVER E. BUSH, DESIGNATED AS "T.A. FOR T.O., " WHICH STATES, IN PERTINENT PART, CONCERNING THE SUBJECT BILLS OF LADING, HAT: "EXCLUSIVE USE OF TRAILER WAS REQUESTED, BUT DUE TO ERROR IN BILLING, NOTATION WAS NOT MADE ON BILLS OF LADING," AND YOU ARGUE THAT SUCH STATEMENT SHOULD BE ACCEPTED AS EVIDENCE THAT THE SERVICE WAS REQUESTED. THE TARIFF, HOWEVER, REQUIRES THAT THE NOTATION BE PLACED ON THE BILLS OF LADING IN A SPECIFIED FORM AS A CONDITION PRECEDENT TO PERFORMANCE OF THE SERVICE, OR COLLECTION OF THE CHARGES. SUCH PROVISIONS ARE PART OF THE TARIFF AND CANNOT BE WAIVED. GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603; SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, C., 9 FEDERAL CARRIERS CASES, 710. THIS IS NOT A QUESTION OF EVIDENCE THAT THE SERVICE WAS AUTHORIZED BUT OF COMPLIANCE WITH THE TARIFF REQUIREMENTS WITHOUT WHICH THE CHARGES ARE NOT AUTHORIZED.

MOREOVER, THE WRITTEN STATEMENT BY THE ADMINISTRATIVE OFFICE MADE NEARLY TWO YEARS AFTER THE SERVICE WAS PERFORMED DOES NOT SATISFY THAT PORTION OF THE ADMINISTRATIVE REGULATION WHICH REQUIRES A NOTATION THAT EXCLUSIVE SERVICE WAS IN FACT RENDERED, SHOWING THE POINTS BETWEEN WHICH SUCH SERVICE WAS PERFORMED. IN THE CIRCUMSTANCES, OUR OFFICE WOULD NOT BE WARRANTED IN AUTHORIZING PAYMENT OF THE PREMIUM CHARGES CLAIMED.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM APPEARS TO BE CORRECT, AND IS SUSTAINED.