B-147576, JUN. 1, 1962

B-147576, JUN. 1, 1962

TO M.R. AND R. TRUCKING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1961, REQUESTING REVIEW OF THE SETTLEMENT ACTION DISALLOWING YOUR CLAIM ON BILL NO. SUP.- 35610-60 FOR $119.39 ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A SHIPMENT OF INTERNAL COMBUSTION ENGINES, NOI, OPPOSED CYLINDER TYPE FOR AIRCRAFT, FROM SAN ANTONIO,TEXAS, TO MARIANNA, FLORIDA, UNDER GOVERNMENT BILL OF LADING AF 554761 DURING JANUARY 1960.

FOR THIS SERVICE, YOU CLAIMED AND WERE PAID $183.60, COMPUTED APPARENTLY ON THE BASIS OF A CLASS 100 EXCEPTIONS RATING NAMED IN ITEM 61243 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF 515-D FOR LESS TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES, RADIAL CYLINDER OR JET PROPULSION TYPE, UNRELEASED AS TO VALUE. IN AUDITING YOUR BILL FOR THIS SHIPMENT WE FOUND THAT THE GOVERNMENT HAD BEEN OVERCHARGED $27.58, BASED UPON A CLASS 85 RATING NAMED IN ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION A-4 FOR LESS-TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES, NOI, RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND. YOU PROTESTED OUR NOTICE OF OVERCHARGE (FORM 1003) STATED ON THIS BASIS, CONTENDING THAT AN UNDERCHARGE RATHER THAN AN OVERCHARGE EXISTED, AND SUBMITTED A SUPPLEMENTAL BILL FOR $91.81, COMPUTED ON THE BASIS OF A CLASS 150 RATING NAMED IN ITEM 61247 OF NATIONAL MOTOR FREIGHT CLASSIFICATION A- 4 FOR LESS-TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES, NOI, UNRELEASED AS TO VALUE. THEREAFTER, YOUR CLAIM WAS DISALLOWED AND A DEDUCTION OF $27.58 WAS MADE FROM AMOUNTS OTHERWISE DUE YOU PURSUANT TO 49 U.S.C. 66. IN YOUR PRESENT LETTER YOU ASSERT THAT THE GOVERNMENT DID NOT COMPLY WITH THE ANNOTATION REQUIREMENT OF ITEM 61245 OF NATIONAL MOTOR FREIGHT CLASSIFICATION A-4 AND, THEREFORE, IS NOT ENTITLED TO THE CLASS 85 RATING NAMED FOR SHIPMENTS RELEASED TO VALUE NOT EXCEEDING $2.50 PER POUND.

ITEM 61245 REQUIRES THAT THERE BE ENTERED ON THE SHIPPING ORDER AND BILL OF LADING A STATEMENT IN THE FOLLOWING FORM:

"* * * THE AGREED OR DECLARED VALUE OF THE PROPERTY IS HEREBY SPECIFICALLY STATED BY THE SHIPPER TO BE NOT EXCEEDING .... PER POUND FOR EACH ARTICLE. * * *"

THE FACE OF THE SUBJECT BILL OF LADING WAS ANNOTATED "RELEASED AT THE MAXIMUM VALUE APPLICABLE TO THE LOWEST PUBLISHED RATE" AND THE BACK PROVIDED IN CONDITION NO. 5 THAT "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.'

WE AGREE THAT THE CASE OF UPJOHN COMPANY V. PENNSYLVANIA RAILROAD COMPANY, 306 I.C.C. 325--- CONCERNING WHETHER UNRELEASED EXCEPTIONS RATINGS REMOVED FROM THE CLASSIFICATION RELEASED RATINGS NAMED FOR THE SAME ARTICLE--- IS NOT IN POINT SINCE THE EXCEPTIONS TARIFF HERE INVOLVED DOES NOT PROVIDE RATINGS APPLICABLE TO INTERNAL COMBUSTION ENGINES, OPPOSED CYLINDER TYPE. HOWEVER, WE DO NOT AGREE THAT THE ANNOTATION REQUIREMENT IN ITEM 61245 HAS NOT BEEN MET. THE SUBJECT BILL OF LADING WAS ANNOTATED ON ITS FACE "RELEASED AT THE MAXIMUM VALUE APPLICABLE TO THE LOWEST PUBLISHED RATE WHICH WOULD APPLY UNDER THE CLASSIFICATION TO THIS PARTICULAR SHIPMENT WAS $2.50 PER POUND. THE UNITED STATES COURT OF CLAIMS HAS RECENTLY HELD (CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, CT.CL.NO. 431-60, DECIDED MAY 9, 1962) THAT NOTATIONS ON BILLS OF LADING NEED NOT BE IN THE EXACT FORM OF THE NOTATION REQUIRED BY THE TARIFF, BUT THAT SUBSTANTIAL COMPLIANCE WITH THE TARIFF RULE IS ALL THAT IS NECESSARY. THUS, THE COURT STATED AT PAGE 5 OF ITS DECISION---

"IT IS TRUE THAT THE TARIFF RULE EXPRESSLY PROVIDES WHAT LANGUAGE IS TO BE ENDORSED ON THE BILL OF LADING IN ORDER TO REQUEST THE EXCLUSIVE USE OF A CARRIER'S VEHICLE, BUT WE DO NOT THINK IT WAS INTENDED THEREBY THAT ALL OTHER LANGUAGE ADEQUATE TO MAKE THE SAME REQUEST WAS TO BE EXCLUDED. WAS NOT INTENDED THAT FORM RATHER THAN SUBSTANCE WOULD GOVERN THE TRANSACTION. IF THERE APPEARS ON THE BILL OF LADING SOME WRITTEN NOTATION, WHICH REASONABLY APPRISES THE CARRIER THAT THE SHIPPER IS REQUESTING THE EXCLUSIVE USE OF ITS VEHICLE, WE THINK THIS IS SUFFICIENT COMPLIANCE WITH THE REQUIREMENT FOR MAKING THE EXCLUSIVE USE RATES APPLICABLE.'

ALSO, THE INTERSTATE COMMERCE COMMISSION REACHED THE SAME CONCLUSION IN CLARK THREAD COMPANY, INC. V. PILOT FREIGHT CARRIER, INC., 62 M.C.C. 185, 189. ACCORDINGLY, WE BELIEVE THAT THE ANNOTATION WRITTEN ON THE FACE OF THE SUBJECT BILL OF LADING REASONABLY APPRISED YOUR COMPANY AND YOUR CONNECTIONS THAT THE GOVERNMENT WAS REQUESTING THE SHIPMENT TO BE RELEASED TO A VALUE NOT EXCEEDING $2.50 A POUND, AND THAT THIS WAS SUFFICIENT COMPLIANCE WITH THE CLASSIFICATION REQUIREMENT FOR MAKING THE LOWER RELEASED VALUE RATING APPLICABLE.

THE ANNOTATION CONTAINED ON THE SUBJECT BILL OF LADING DID NOT ORIGINATE, AS YOU SUGGEST, AS A PART OF SECTION 22 QUOTATIONS, WHEREBY THE CARRIER ACCEPTED LIABILITY FOR THE FULL ACTUAL VALUE OF THE SHIPMENT BUT CONCURRENTLY AGREED TO PROTECT THE LOWER RATING APPLICABLE TO A RELEASED VALUATION NOT EXCEEDING $2.50 A POUND. THE ANNOTATION EMPLOYED IN THAT TYPE OF SITUATION WAS SET OUT IN BENTON RAPID EXPRESS, INC. V. UNITED STATES, 145 CT.CL. 361, AND READS AS FOLLOWS:

"RELEASED AT FULL VALUATION. LOWEST RATING PER ITEM 61244, NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 10 APPLICABLE.'

RATHER, THE FORM OF ANNOTATION CONTAINED ON THE SUBJECT BILL OF LADING ORIGINATED IN MILITARY TRAFFIC MANAGEMENT REGULATION AFM 75-2, MARCH 1, 1958, PARAGRAPH 214146, WHICH PROVIDED:

"ALTHOUGH GENERAL CONDITION NO. 5 ON THE BACK OF THE GOVERNMENT BILL OF LADING PROVIDES THAT ....... 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, WHEN RATES ARE BASED UPON THE VALUE DECLARED, THE BILL OF LADING WILL BE ANNOTATED TO SHOW THAT THE SHIPMENT IS RELEASED AT THE MAXIMUM VALUE WHICH APPLIES TO THE LOWEST PUBLISHED RATE OR CLASSIFICATION RATING.'

IT IS APPARENT THAT THIS INSTRUCTION CONTEMPLATED THAT SHIPPING OFFICERS WOULD ANNOTATE BILLS OF LADING COVERING RELEASED VALUE SHIPMENTS WITH A RELEASED VALUE STATED IN A DOLLARS AND CENTS FIGURE. HOWEVER, OUR EXPERIENCE IN THE AUDIT OF BILLS OF LADING COVERING RELEASED VALUE SHIPMENTS MADE DURING THIS PERIOD HAS BEEN THAT SHIPPING OFFICERS IN MANY INSTANCES MISINTERPRETED THIS INSTRUCTION AND SIMPLY COPIED THE PHRASE "RELEASED AT THE MAXIMUM VALUE WHICH APPLIES TO THE LOWEST PUBLISHED RATE OR CLASSIFICATION RATING" ON TO THE BILL OF LADING. ON MARCH 7, 1960--- SHORTLY AFTER THE SUBJECT SHIPMENT MOVED-- THIS INSTRUCTION WAS CLARIFIED BY ADDING TO THE END OF THE PARAGRAPH THE PHRASE: "FOR EXAMPLE,"RELEASED VALUE NOT EXCEEDING 10 CENTS PER POUND.'"

IN VIEW OF THIS, WE FEEL THAT THE SETTLEMENT ACTION TAKEN ON YOUR CLAIM WAS CORRECT AND, ACCORDINGLY, IT IS SUSTAINED. HOWEVER, THE SUFFICIENCY OF SIMILAR RELEASED VALUE ANNOTATIONS CONTAINED ON GOVERNMENT BILLS OF LADING IS PRESENTLY AT ISSUE BEFORE THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS IN THE CASE OF STRICKLAND TRANSPORTATION COMPANY V. UNITED STATES, CIVIL NO. 8662. IN THE EVENT THAT A FINAL JUDICIAL DECISION IN THIS OR SIMILAR CASES IS ADVERSE TO THE UNITED STATES AND YOU THEN FEEL, BASED UPON SUCH FINAL DECISION, THAT YOUR CLAIM IS PROPERLY FOR ALLOWANCE, WE WILL, UPON YOUR TIMELY REQUEST, GIVE FURTHER CONSIDERATION TO THE MATTER.