B-129269, OCT. 26, 1956

B-129269, OCT. 26, 1956

TO U.S.A.C. TRANSPORT, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1955, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DATED NOVEMBER 9, 1954, IN CLAIM NO. TK- 510844 DISALLOWING YOUR SUPPLEMENTAL BILL NO. 2448-A FOR $1,082.65, REPRESENTING ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF THREE SHIPMENTS OF AIRPLANE PARTS WHICH MOVED UNDER GOVERNMENT BILLS OF LADING DURING 1949.

FOR THESE SERVICES, YOU CLAIMED AND WERE PAID A TOTAL OF $2,616.80. LATER, INCIDENT TO AN AUDIT OF THE PAYMENT VOUCHER BY OUR TRANSPORTATION DIVISION, THE ADMINISTRATIVE OFFICE WAS INFORMED THAT THE AUTHORITY FOR THE TRANSPORTATION CHARGES WAS NOT ON FILE WITH OUR OFFICE UNDER PUBLISHED TARIFF OR BY A SPECIAL QUOTATION SEPARATE FROM THAT APPEARING IN THE BILL OF LADING CONTRACT. THE ADMINISTRATIVE OFFICE WAS REQUESTED TO ADVISE US WHETHER OR NOT THE SHIPMENTS MOVED ON A SPECIAL QUOTATION BASIS, IT BEING OUR PURPOSE TO OBTAIN FOR OUR FILES, AND FOR PROPER AUDIT ANY FORMAL QUOTATION THAT THE CARRIER MIGHT HAVE SUBMITTED. SINCE THE ADMINISTRATIVE OFFICE HAD NO RECORD OF A SPECIAL AGREEMENT WITH YOU IT REQUESTED THE CARRIER TO FURNISH INFORMATION REGARDING THE RATES USED AND THE AUTHORITY FOR THE RATES. THE LETTERS IN REPLY, SIGNED BY "W. J. CAVANAUGH, VICE- PRESIDENT" STATED IN SUBSTANCE THAT ALTHOUGH THE TARIFF RATE WOULD HAVE BEEN HIGHER, THE CHARGES ASSESSED WERE IN LINE WITH YOUR POLICY OF NOT CHARGING THE FULL RATE FOR GOVERNMENTAL MOVEMENTS. BASED ON THAT INFORMATION, THE AUDIT OF THE PAYMENT VOUCHER WAS COMPLETED AND THE VOUCHER FORWARDED TO THE CLOSED FILE.

THEREAFTER, WE RECEIVED FOR SETTLEMENT YOUR SUPPLEMENTAL BILL NO. 2448-A FOR ADDITIONAL CHARGES TOTALING $1,082.45, ON THE THREE BILLS OF LADING INVOLVED, COMPUTED ON THE BASIS OF RATES PUBLISHED IN ITEM 35 OF AGENT BLOCKSOM'S TARIFF MF-I.C.C. NO. 9. YOUR BILL WAS DISALLOWED ON THE BASIS OF THE STATEMENTS CONTAINED IN THE LETTERS SIGNED BY MR. CAVANAUGH. YOUR REQUEST FOR REVIEW YOU ASSERT THAT WHILE THE GENERAL POLICY OF CARRIERS IS NOT TO CHARGE FULL TARIFF RATES ON GOVERNMENT SHIPMENTS, THIS POLICY ONLY PREVAILS IN SPECIFIC CASES WHERE SECTION 22 QUOTATIONS HAVE BEEN ISSUED AND ANY DIVERSION FROM THIS POLICY IS ONLY AUTHORIZED BY MR. MURRAY, PRESIDENT OF U.S.A.C. TRANSPORT, INC.

IT IS A WELL-ESTABLISHED RULE THAT THE ADMISSIONS AND REPRESENTATIONS OF THE OFFICERS OR AGENTS OF A CORPORATION, MADE DURING THE TRANSACTION OF BUSINESS ENTRUSTED TO THEM OR WITHIN ACTUAL OR APPARENT SCOPE OF THEIR AUTHORITY, ARE ADMISSIBLE IN EVIDENCE AGAINST THE CORPORATION. APPARENT AUTHORITY MAY BE INFERRED FROM THE NATURE OF THE POSITION THAT THE PRINCIPAL ALLOWS THE AGENT TO OCCUPY. SINCE YOUR CORPORATION PLACED MR. CAVANAUGH IN THE POSITION OF VICE PRESIDENT IT WOULD APPEAR THAT A PERSON OF ORDINARY PRUDENCE, NOT ON NOTICE OF ANY LIMITATION OF AUTHORITY, COULD PROPERLY INFER THAT AS VICE PRESIDENT MR. CAVANAUGH HAD AUTHORITY TO MAKE STATEMENTS AS TO THE CORPORATION'S POLICY CONCERNING THE CHARGES BILLED. SEE NORELLI V. MUTUAL SAVINGS FUND HARMONIA, 1 A.2D 440.

SECTION 217 (B) OF PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317 (B), MAKES APPLICABLE TO MOTOR COMMON CARRIERS THE PROVISIONS OF SECTION 22 OF PART I OF THE ACT WHICH PERMITS CARRIERS TO TRANSPORT PROPERTY "FREE OR AT REDUCED RATES FOR THE UNITED STATES.' NO PARTICULAR FORM OR PROCEDURE IS SET OUT IN THE LAW TO IMPLEMENT THE PROVISIONS OF SECTION 22. SEE IN THIS CONNECTION UNION PACIFIC R. CO. V. UNITED STATES, 132 F.SUPP. 230, AND INTERSTATE MOTOR FREIGHT SYSTEM EXTENSION--- PASSENGERS, 66 M.C.C. 547. IT WOULD APPEAR THAT THE NOTATIONS SHOWN ON THE BILLS OF LADING AS TO THE CHARGES TO BE BILLED, THE CERTIFICATION ON THE PAYMENT VOUCHERS BY THE CARRIER'S PRESIDENT THAT THE CHARGES WERE "CORRECT AND JUST," AND THE STATEMENTS MADE BY THE VICE PRESIDENT CONFIRMING THE FACT THAT THE CHARGES BILLED WERE NOT BASED ON TARIFF RATES BUT WERE CONSISTENT WITH THE CARRIER'S POLICY OF NOT CHARGING THE FULL (TARIFF) RATE ON GOVERNMENT SHIPMENTS, WOULD BE SUFFICIENT EVIDENCE OF YOUR INTENT AND OBLIGATION TO TRANSPORT THE PROPERTY AT SUCH CHARGES.

ACCORDINGLY, THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM ON SUPPLEMENTAL BILL NO. 2448-A APPEARS TO HAVE BEEN PROPER, AND IT IS SUSTAINED.