B-129884, MAY 6, 1957

B-129884: May 6, 1957

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CAROLINA FREIGHT CARRIERS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23. BILL OF LADING AF-2515151 WAS ISSUED AUGUST 26. THE GOODS WERE DESCRIBED ON THE BILL OF LADING AS "5 EA. WHEN THE PAYMENT VOUCHER WAS REACHED IN THE AUDIT HERE. THE CHARGES WERE COMPUTED AT THE CLASS-85 RATE OF $3.23 PER 100 POUNDS APPLICABLE TO THE PUMPS ACTUALLY TRANSPORTED. YOU WERE REQUESTED TO REFUND THE RESULTING OVERPAYMENT OF $16.87. YOUR PROTEST TO THE GOVERNMENT'S CLAIM IS GROUNDED GENERALLY UPON OUR TRANSPORTATION DIVISION'S FAILURE TO APPRISE YOU OF ANY CHANGES IN COMMODITY DESCRIPTIONS RESULTING IN UNDERCHARGES. EXTENDS TO THE ASCERTAINMENT THAT APPROPRIATED FUNDS HAVE BEEN EXPENDED ONLY IN FURTHERANCE OF THE PURPOSES FOR WHICH THEY WERE APPROPRIATED.

B-129884, MAY 6, 1957

TO FELIX E. MENDEL, JR., AUDITOR--- CLAIMS, CAROLINA FREIGHT CARRIERS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1956, FILE OUR CLAIM 056-380, OUR PRO. 371155, CONCERNING OUR TRANSPORTATION DIVISION'S AUDIT OF GOVERNMENT BILL OF LADING AF-2515151.

BILL OF LADING AF-2515151 WAS ISSUED AUGUST 26, 1953, BY THE COMMERCIAL TRAFFIC OFFICE, EASTERN AIR PROCUREMENT DISTRICT, 655 MADISON AVENUE, NEW YORK, NEW YORK, TO COVER A SHIPMENT AUTHORIZED UNDER CONTRACT NO. AF 09/603/-15882 FROM ACCESSORY OVERHAUL INDUSTRIES, INC., RICHMOND HILL, LONG ISLAND, TO THE TRANSPORTATION OFFICER, WARNER ROBINS AIR FORCE BASE, GEORGIA. THE GOODS WERE DESCRIBED ON THE BILL OF LADING AS "5 EA. WOODEN BOXES," ACTUAL WEIGHT 3,750 POUNDS. FOR THIS SERVICE, YOU BILLED AND COLLECTED $149.63, COMPUTED AT THE CLASS 100 RATE OF $3.80 PER 100 POUNDS, PLUS 19 CENTS PER 100 POUNDS FOR PICK-UP SERVICE. ON OCTOBER 8, 1953, THE NEW YORK COMMERCIAL TRAFFIC BRANCH, TRANSPORTATION DIVISION, U.S. ARMY, ISSUED A CORRECTION NOTICE FOR BILL OF LADING AF-2515151, CONTRACT NO. AF 09/603/-15882, SHOWING THE PROPER DESCRIPTION OF THE ARTICLES SHIPPED, ACCORDING TO THE JOINT ARMY AND AIR FORCE COMMERCIAL TRAFFIC BULLETIN NO. 21, TO BE "PUMPS, HAND, NOIBN, STEEL SHEET AND CAST COMB.' WHEN THE PAYMENT VOUCHER WAS REACHED IN THE AUDIT HERE, THE CHARGES WERE COMPUTED AT THE CLASS-85 RATE OF $3.23 PER 100 POUNDS APPLICABLE TO THE PUMPS ACTUALLY TRANSPORTED, PLUS PICK-UP OF 31 CENTS PER 100 POUNDS, AND YOU WERE REQUESTED TO REFUND THE RESULTING OVERPAYMENT OF $16.87.

YOUR PROTEST TO THE GOVERNMENT'S CLAIM IS GROUNDED GENERALLY UPON OUR TRANSPORTATION DIVISION'S FAILURE TO APPRISE YOU OF ANY CHANGES IN COMMODITY DESCRIPTIONS RESULTING IN UNDERCHARGES, WHICH YOU BELIEVE MAY APPEAR IN THE COURSE OF ITS AUDIT, AND PARTICULARLY UPON (1) THE RECITAL IN THE BILL OF LADING ACKNOWLEDGING THE CARRIER'S RECEIPT OF THE GOODS SUBJECT TO THE QUALIFICATION ,/CONTENTS AND VALUE UNKNOWN); " AND (2) THE IMPOSSIBILITY OF MAKING AN INSPECTION IN 1956, UPON RECEIPT OF THE NOTICE OF OVERPAYMENT, TO SATISFY YOURSELF OF THE TRUE NATURE OF THE ARTICLES SHIPPED IN 1953.

UNDER THE BUDGET AND ACCOUNTING ACT OF 1921, AS AMENDED, 31 U.S.C. 65 ET SEQ., AND THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, THE PRIMARY RESPONSIBILITY OF OUR TRANSPORTATION DIVISION, IN ITS AUDIT AND SETTLEMENT OF CARRIER'S ACCOUNTS FOR TRANSPORTATION SERVICES FURNISHED THE UNITED STATES, EXTENDS TO THE ASCERTAINMENT THAT APPROPRIATED FUNDS HAVE BEEN EXPENDED ONLY IN FURTHERANCE OF THE PURPOSES FOR WHICH THEY WERE APPROPRIATED, AND TO THE PROTECTION OF THE GOVERNMENT FROM THE PAYMENT OF CHARGES IN EXCESS OF THOSE LEGALLY DUE. AS TO THE MATTER OF UNDERCHARGES, THE BURDEN APPEARS TO BE PLACED UPON THE CARRIER BY PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 217 (B), TO COLLECT THE TARIFF RATES LEGALLY APPLICABLE TO THE GOODS ACTUALLY SHIPPED. SEE ALSO PYRAMID NAT-L. VAN LINES V. GOETZE, 65 A.2D 595. ALSO, WHEN ASSERTED FOR PAYMENT, UNDERCHARGES CONSTITUTE CLAIMS AGAINST THE GOVERNMENT AND THE CRIMINAL CODE, 18 U.S.C. 283, PROHIBITS THE PROSECUTION OR SUPPORT OF SUCH CLAIMS BY GOVERNMENT OFFICIALS OR EMPLOYEES. FOR THESE COMPELLING REASONS, AS WELL AS FOR PRACTICAL CONSIDERATIONS SUCH AS THE NEGOTIATION OF SPECIAL AGREEMENTS OR CONCESSIONS BETWEEN THE CARRIERS AND THE SHIPPING AGENCIES OF WHICH OUR TRANSPORTATION DIVISION MAY NOT HAVE BEEN INFORMED, NO EFFORTS HAVE BEEN MADE, OR CAN BE MADE, TO DISCOVER AND INFORM CARRIERS OF SUSPECTED UNDERCHARGES.

THE RECORD IN THIS CASE IS SILENT AS TO WHETHER THE DESCRIPTION OF THE GOODS WAS ENTERED ON THE BILL OF LADING BY THE SHIPPER, BY THE CARRIER PURSUANT TO INFORMATION FROM THE SHIPPER, OR BY THE CARRIER AS A RESULT OF VISUAL INSPECTION. IN ANY CASE, A BILLED WEIGHT OF 3,750 POUNDS FOR 5 WOODEN BOXES--- 750 POUNDS PER BOX--- WAS SUFFICIENT TO PUT THE CARRIER ON NOTICE THAT THE BILL OF LADING DESCRIPTION WAS INCOMPLETE AND THAT THE FULFILLMENT OF THE CARRIER'S DUTY UNDER SECTION 217/B) OF THE ACT WOULD REQUIRE A MORE DETAILED DESCRIPTION OF THE GOODS. REGARDLESS OF THE RECITAL IN THE BILL OF LADING RECEIPT AND THE FAILURE TO EXERCISE YOUR RIGHT OF INSPECTION, IT IS WELL ESTABLISHED THAT THE PRESUMPTION OF THE CORRECTNESS OF THE BILL OF LADING DESCRIPTION IS NOT CONCLUSIVE, BELL COMPANY V. ANN ARBOR RAILROAD COMPANY, 174 I.C.C. 300, 301, AND THAT THE IMPORTANT FACT IS WHAT ACTUALLY MOVED, NOT WHAT WAS BILLED, PENN FACING MILLS COMPANY V. ANN ARBOR RAILROAD, 182 I.C.C. 614, 615; FREIGHT TRANSPORTATION ENGINEERS, INC. V. SOUTHERN TIES TRUCKING COMPANY, 48 M.C.C. 372, 373; FEDDERS-QUIGAN CORPORATION, ET AL. V. LONG TRANSP. CO., 64 M.C.C. 581, 586; NEW YORK CENTRAL R. CO. V. GOLDBERG, 250 U.S. 85.

YOU INQUIRED IN YOUR LETTER OF NOVEMBER 23 WHY THESE PUMPS WERE SHIPPED IN WOODEN BOXES SINCE THEY WERE NOT FOR EXPORT AND THE GOVERNING CLASSIFICATION IMPOSED NO SUCH REQUIREMENT. CONTRACT NO. AF09 (603/-15882 CALLED FOR CERTAIN REPAIRS AND RECONDITIONING OF VARIOUS EQUIPMENT, INCLUDING THESE PUMP ASSEMBLIES, AFTER WHICH THEY WERE TO BE PREPARED FOR LONG-TERM STORAGE BY SEALING IN MOISTURE IMPERVIOUS METAL CONTAINERS ENCLOSED IN EXTERIOR CONTAINERS SUCH AS WOODEN BOXES. THE FACT THAT YOUR BILL FOR THESE TRANSPORTATION CHARGES WAS SUBMITTED ON THE BASIS OF THE CLASS-100 RATE, ALTHOUGH THE RATING APPLICABLE TO "WOODEN BOXES, NEW EMPTY, SET UP," IS CLASS 200 AND THAT APPLICABLE TO "WOODEN BOXES, OLD, NOI," IS CLASS 125 (SEE ITEM 13275 1/2, SUPPLEMENT 8, MOTOR CARRIERS' TARIFF ASSOCIATION BUREAU EXCEPTIONS TARIFF NO. 76-B, MF-I.C.C. NO. 348 AND ITEM 13280, NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-1), SUGGESTS THAT YOUR REPRESENTATIVES WERE AWARE THAT THIS SHIPMENT DID NOT CONSIST SOLELY OF "WOODEN BOXES.'

IN VIEW OF THE FOREGOING, THE AUDIT ACTION TAKEN BY OUR TRANSPORTATION DIVISION WAS PROPER AND IS SUSTAINED. THE OVERPAYMENT OF $16.87 SHOULD BE REFUNDED PROMPTLY.