B-138736, MAY 18, 1959, 38 COMP. GEN. 768

B-138736: May 18, 1959

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TRANSPORTATION - RATES - RELEASED VALUE QUOTATIONS - ACCEPTANCE RELEASED VALUATION QUOTATIONS WHICH ARE OFFERED BY COMMON CARRIERS TO THE UNITED STATES FOR TRANSPORTATION SERVICES UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT. THE LATTER IS BASED UPON THE CONCLUSION OF ILLEGALITY OF SUCH TENDERS REACHED BY YOUR OFFICE OF THE GENERAL COUNSEL AND EXPRESSED IN A MEMORANDUM DATED NOVEMBER 9. THAT STEPS WERE TAKEN TO COMPLY WITH THIS DIRECTIVE. THAT AGREED VALUATIONS OF INTERNAL COMBUSTION ENGINES ARE NOT DECLARED IN WRITING ON THE COVERING BILLS OF LADING. THE CONCLUSION OF ILLEGALITY REACHED BY YOUR OFFICE OF THE GENERAL COUNSEL WAS PREDICATED UPON TWO PREMISES: (1) THAT SECTION 20 (11) OF THE INTERSTATE COMMERCE ACT.

B-138736, MAY 18, 1959, 38 COMP. GEN. 768

TRANSPORTATION - RATES - RELEASED VALUE QUOTATIONS - ACCEPTANCE RELEASED VALUATION QUOTATIONS WHICH ARE OFFERED BY COMMON CARRIERS TO THE UNITED STATES FOR TRANSPORTATION SERVICES UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, AND WHICH REQUIRE THE AGREED OR RELEASED VALUATION TO BE DECLARED ON THE BILLS OF LADING IN A SPECIFIED FORM AS A CONDITION FOR THE REDUCED RATE OFFER, MAY NOT BE REGARDED AS HAVING BEEN ACCEPTED BY THE GOVERNMENT BY THE MERE EXISTENCE OF A PROVISION ON THE BACK OF THE BILL OF LADING CONCERNING RELEASED VALUATION SHIPMENTS IN THE ABSENCE OF THE REQUIRED STATEMENT IN THE SPECIFIED FORM. 38 COMP. GEN. 257, OVERRULED.

TO THE SECRETARY OF DEFENSE, MAY 18, 1959:

THE LEGALITY OF TENDERS BY COMMON CARRIERS, PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, OF REDUCED RATES CONDITIONED UPON LIMITED LIABILITY HAS BEEN CONSIDERED HERE AT THE REQUEST OF THE DEPARTMENT OF THE AIR FORCE AND THE MILITARY TRAFFIC MANAGEMENT AGENCY, MADE AT A CONFERENCE HELD HERE JANUARY 22, 1959.

THE PROBLEM OF THE LEGALITY OF THESE TENDERS, PRESENTED IN CONNECTION WITH SHIPMENTS OF INTERNAL COMBUSTION ENGINES, RADIAL CYLINDER OR JET PROPULSION TYPE, MADE BY THE MILITARY DEPARTMENTS, AROSE FROM THE APPARENT INCONSISTENCY OF AN ASSUMPTION OF LEGALITY OF SUCH A TENDER IMPLIED IN OUR DECISION OF OCTOBER 1, 1958, B-135792, 38 COMP. GEN. 257, WITH THE POLICY OF YOUR DEPARTMENT. THE LATTER IS BASED UPON THE CONCLUSION OF ILLEGALITY OF SUCH TENDERS REACHED BY YOUR OFFICE OF THE GENERAL COUNSEL AND EXPRESSED IN A MEMORANDUM DATED NOVEMBER 9, 1954, TO THE DIRECTOR OF TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF DEFENSE. WE UNDERSTAND THAT THE ASSISTANT SECRETARY OF DEFENSE FOR SUPPLY AND LOGISTICS, ON JANUARY 31, 1955, DIRECTED THE MILITARY DEPARTMENTS TO ASSURE THAT RELEASED RATE SECTION 22 QUOTATIONS BE PROCESSED IN CONFORMITY WITH THE OPINION OF THE OFFICE OF THE GENERAL COUNSEL, THAT STEPS WERE TAKEN TO COMPLY WITH THIS DIRECTIVE, AND THAT AGREED VALUATIONS OF INTERNAL COMBUSTION ENGINES ARE NOT DECLARED IN WRITING ON THE COVERING BILLS OF LADING.

THE CONCLUSION OF ILLEGALITY REACHED BY YOUR OFFICE OF THE GENERAL COUNSEL WAS PREDICATED UPON TWO PREMISES: (1) THAT SECTION 20 (11) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11), WHICH PROHIBITS CARRIERS FROM MAINTAINING RATES OR CHARGES BASED UPON LIMITATIONS OF LIABILITY UNLESS AUTHORIZED OR REQUIRED BY THE INTERSTATE COMMERCE COMMISSION, OPERATES TO PRECLUDE GRANTING AND ACCEPTANCE OF THE TENDER, UNDER SECTION 22 OF THE ACT, OF REDUCED RATES CONDITIONED UPON LIMITED LIABILITY ABSENT A PRIOR AUTHORIZATION THEREFOR FROM THE COMMISSION AND (2) THAT SECTION 22 CONTEMPLATES A PRE-EXISTING TARIFF RATE OR CHARGE FROM WHICH A REDUCTION IN WHOLE OR IN PART MAY BE OFFERED THE UNITED STATES, AND THAT THEREFORE IN INSTANCES WHERE CARRIERS DO NOT MAINTAIN RELEASED RATES IN PUBLISHED TARIFFS (AND RAIL CARRIERS DO NOT MAINTAIN RELEASED RATES OR RATINGS ON INTERNAL COMBUSTION ENGINES), THERE IS NO RATE FROM WHICH A REDUCTION MAY VALIDLY BE OFFERED AND ACCEPTED UNDER SECTION 22.

SECTION 22 OF THE INTERSTATE COMMERCE ACT CODIFIED THE ANTECEDENT COMMON LAW RIGHT OF CARRIERS TO GRANT PREFERENTIAL TREATMENT TO CERTAIN CLASSES IN CERTAIN CASES; IT CONFERRED NO RIGHT ON CARRIER, SHIPPER, OR TRAVELER. NASHVILLE, CHATTANOOGA AND ST. LOUIS V. TENNESSEE, 262 U.S. 318. SECTION 20 (11) WAS NOT IN THE ORIGINAL ACT OF 1887, AS WAS SECTION 22; IT WAS ADDED BY THE CARMACK AMENDMENT OF 1906 AND THE CUMMINS AMENDMENTS OF 1915 AND 1916. CUMULATIVELY, THOSE AMENDMENTS MADE A RADICAL DEPARTURE FROM THE COMMON LAW WHICH HELD COMMON CARRIERS TO THE STRICTEST ACCOUNTABILITY AS INSURERS OF THE GOODS CARRIED AND FROM THE COMMON LAW RULE PERMITTING CARRIERS TO LIMIT THEIR LIABILITY BY CONTRACT WITH THE SHIPPER ( CHICAGO, BURLINGTON AND QUINCY RAILWAY COMPANY V. MILLER, 226 U.S. 513; ADAMS EXPRESS COMPANY V. CRONINGER, ID. 491). HOWEVER, WE BELIEVE THE EFFECT OF SUCH AMENDMENTS SHOULD NOT BE EXTENDED BEYOND THE PLAIN MEANING OF THE LANGUAGE EMPLOYED AND THE EVIDENT PURPOSE. REIDER V. THOMPSON, 339 U.S. 113, REHEARING DENIED, ID. 936. THE INTERSTATE COMMERCE COMMISSION MADE AN EXHAUSTIVE STUDY OF SECTION 20 (11) IN 1915 IN THE CUMMINS AMENDMENT, 33 I.C.C. 682, HOLDING THAT THE LEGISLATIVE INTENT THEREIN WAS TO CHANGE ONLY THAT PART OF THE ACT KNOWN AS THE CARMACK AMENDMENT AND THAT THE AMENDMENT SHOULD BE CONSTRUED SO AS TO GIVE FULL FORCE TO ITS CLEAR PURPOSE "WITHOUT IMPAIRING THE EFFECT OF ANY OTHER PROVISION OF THE ACT., " PAGE 692. THIS WOULD SEEM TO BE EQUALLY TRUE OF THE SECOND CUMMINS AMENDMENT, WHICH MODIFIED THE ABSOLUTE PROHIBITION OF ITS PREDECESSOR AGAINST RATES CONDITIONED UPON LIMITED LIABILITY SO AS TO PERMIT THEM WHERE AUTHORIZED OR REQUIRED BY THE INTERSTATE COMMERCE COMMISSION. THE EFFECT OF SECTION 22 IS TO EXCLUDE FROM THE OPERATION OF THE ACT THE CARRIAGE, STORAGE AND HANDLING OF PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES. UNITED STATES V. WELLS FARGO, 161 F. 606, 617, AFFIRMED ON OTHER GROUNDS, AMERICAN EXPRESS COMPANY V. UNITED STATES, 212 U.S. 522. THE INTERSTATE COMMERCE COMMISSION CAN NEITHER BIND THE UNITED STATES TO TARIFF RATES, ILLINOIS CENTRAL RAILROAD COMPANY V. UNITED STATES, 58 C.1CLS. 182, NOR COMPEL CARRIERS TO GRANT REDUCED RATES UNDER SECTION 22, UNITED STATES V. UNION PACIFIC RAILROAD COMPANY, 28 I.C.C. 518; IT HAS LIMITED JURISDICTION OVER RATES PROMULGATED UNDER SECTION 22 AS IN THE CASE OF AN ILLEGAL PREFERENCE OR DISCRIMINATION, NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY COMPANY V. TENNESSEE, ABOVE. THUS THE INTERSTATE COMMERCE COMMISSION APPARENTLY CANNOT REQUIRE CARRIERS TO OFFER REDUCED RATES, CONDITIONED UPON LIMITED LIABILITY, PURSUANT TO SECTION 22, NOR WOULD ITS AUTHORIZATION OF SUCH RATES HAVE ANY PRACTICAL LEGAL EFFECT UPON THEIR VALIDITY. FUNDAMENTALLY, SECTION 22 SEEMS TO OPERATE TO EXEMPT FROM THE RATE REGULATION OF THE ACT TRANSPORTATION FOR THE UNITED STATES. SEE PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES, (1958) 355 U.S. 534, FOOTNOTE 10, PAGE 543, WHERE IT WAS STATED THAT "SECTION 22 OF INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED, 49 U.S.C. 22, EXEMPTS TRANSPORTATION FOR THE UNITED STATES FROM THE RATE PROVISIONS OF THAT ACT.' IN THE ABSENCE OF LANGUAGE CLEARLY INDICATING THAT CONGRESS INTENDED SO TO LIMIT THE GOVERNMENT'S FREEDOM TO CONTRACT FOR ITS TRANSPORTATION SERVICES, WE BELIEVE THIS EXEMPTION OUGHT NOT TO BE DETERMINED ADMINISTRATIVELY TO BE AFFECTED BY THE PROVISO IN SECTION 20 (11) LIMITING RELEASED VALUATION RATES AND RATINGS TO THOSE AUTHORIZED OR REQUIRED BY THE INTERSTATE COMMERCE COMMISSION.

THERE DOES NOT SEEM TO BE ANYTHING IN THE LANGUAGE OF SECTION 22, BY ITSELF OR WHEN CONSTRUED WITH THE REST OF THE ACT, WHICH CIRCUMSCRIBES THE EXEMPTION SO THAT IT RUNS ONLY TO THE LEVEL OF RATES, AT LEAST TO THE EXTENT OF REQUIRING THAT TARIFF RATES OR CHARGES FOR THE CONTEMPLATED SERVICES PREEXIST THE PROPOSED SECTION 22 RATES OR CHARGES. SEE, IN THIS CONNECTION, LOUISVILLE AND NASHVILLE RAILROAD COMPANY V. UNITED STATES, 106 F.1SUPP. 999, 1007, 1008, AFFIRMED 221 F.2D 698, 703, IN WHICH A SOMEWHAT SIMILAR ARGUMENT, MADE BY THE GOVERNMENT, WAS REJECTED, ALTHOUGH THE DECISION TURNED ON ANOTHER POINT. FREQUENTLY CARRIERS HAVE OFFERED AND THE GOVERNMENT HAS ACCEPTED AND USED SECTION 22 QUOTATIONS PROVIDING CHARGES FOR SERVICES NOT AVAILABLE TO THE PUBLIC IN TARIFFS, (E.G., THE VARIOUS SECTION 22 QUOTATIONS AUTHORIZING ON GOVERNMENT TRAFFIC TRANSIT PRIVILEGES WHICH ARE NOT AVAILABLE TO THE PUBLIC). OTHER QUOTATIONS HAVE BEEN MADE, ACCEPTED AND USED WHICH PROVIDED HIGHER RATES THAN THOSE AVAILABLE TO THE PUBLIC BECAUSE THEY INCLUDED SERVICES ADDITIONAL TO THOSE OFFERED THE PUBLIC UNDER THE TARIFF RATES. SEE CHESAPEAKE AND OHIO RAILWAY COMPANY V. UNITED STATES, 161 F.1SUPP. 403, WHEREIN THE COURT OF CLAIMS HELD APPLICABLE TO THE SHIPMENTS THERE INVOLVED A SECTION 22 QUOTATION PROVIDING A STOP-OFF CHARGE AT THE OYSTER POINT BACKUP DEPOT RATHER THAN THE LOWER CHARGE PROVIDED IN THE CARRIER'S SWITCHING TARIFF ON THE GROUND THAT THE TARIFF DID NOT CONTEMPLATE THE METHOD OF HANDLING CARS WHICH THE GOVERNMENT HAD EMPLOYED WITH RESPECT TO ITS SHIPMENTS. ALSO, SEE BENJAMIN MOTOR EXPRESS, INC. V. UNITED STATES, 147 F.1SUPP. 15, AFFIRMED 251 F.2D 547, WHERE THE COURT REJECTED THE MOTOR CARRIER'S ATTEMPT TO REPUDIATE ITS OFFER TO TRANSPORT AT RAIL RATES GOVERNMENT SHIPMENTS MOVING BETWEEN THE NAVAL AMMUNITION DEPOT, HINGHAM, MASSACHUSETTS, AND THE NAVAL RESERVATION AT PRICE'S NECK, RHODE ISLAND, ON THE GROUND, AMONG OTHERS, THAT ITS SERVICE EXCEEDED THAT PROVIDED BY RAIL CARRIERS UNDER RAIL RATES.

FROM THE FOREGOING, IT WOULD SEEM THAT SECTION 22 OF THE ACT OPERATES TO LEAVE UNREGULATED RATES AND CHARGES FOR TRANSPORTATION SERVICES FURNISHED THE UNITED STATES, SUBJECT ONLY TO THE POWER OF THE INTERSTATE COMMERCE COMMISSION TO PRESCRIBE REASONABLE RATES AND CHARGES WHICH, WHEN SO PRESCRIBED, SERVE AS THE MAXIMA THAT CARRIERS MAY DEMAND FROM THE GOVERNMENT ( UNITED STATES V. ALABAMA AND VICKSBURG RAILWAY COMPANY, 40 I.C.C. 405, 406) AND TO THE RESTRICTION THAT THE UNREGULATED RATE OR CHARGE MUST NOT RESULT IN AN ILLEGAL PREFERENCE OR DISCRIMINATION ( NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY COMPANY V. TENNESSEE, ABOVE). IN THIS SITUATION, IN THE ABSENCE OF A CONCLUSIVE JUDICIAL DETERMINATION TO THE CONTRARY, WE BELIEVE THE INTEREST OF THE GOVERNMENT WOULD BEST BE SERVED BY USING WHERE ADVANTAGEOUS, CARRIER'S TENDERS OF REDUCED RATES CONDITIONED UPON LIMITED LIABILITY.

THE RELEASED VALUATION SECTION 22 QUOTATIONS WHICH HAVE COME TO OUR ATTENTION PROVIDE EITHER SPECIFIC RATES OR A BASIS FOR DETERMINING RATES ON INTERNAL COMBUSTION ENGINES OF THE RADIAL CYLINDER OR JET PROPULSION TYPE WHEN RELEASED TO SPECIFIED VALUATIONS. THE QUOTATIONS REQUIRE THAT THE AGREED OR RELEASED VALUATIONS BE DECLARED ON THE BILLS OF LADING IN A FORM WHICH IS SPECIFIED IN THE QUOTATION. SEE, FOR EXAMPLE, ITEM NO. 2 1/2, AMENDMENT NO. 1, TRAFFIC EXECUTIVE ASSOCIATION 1EASTERN RAILROAD QUOTATION NO. A-1169, ENTITLED " CERTIFICATION AS TO VALUATION" PROVIDING THAT THE RELEASED VALUATION SPECIFIED IN THE QUOTATION BE ENTERED ON THE SHIPPING ORDER AND THE BILL OF LADING AS FOLLOWS:

THE AGREED OR DECLARED VALUE OF THE PROPERTY IS HEREBY SPECIFICALLY STATED BY THE SHIPPER TO BE NOT EXCEEDING $2.50 PER POUND.

WE UNDERSTAND THAT THE DEPARTMENT OF THE NAVY, ON MAY 4, 1956, INFORMED THE OFFEROR OF THIS QUOTATION THAT ITS RATE TENDERS WERE UNACCEPTABLE SO LONG AS THEY CONTAINED LIMITATIONS AS TO VALUATIONS AND THAT ITEM NO. 2 1/2 AND REFERENCES IN ITEMS NOS. 1 AND 2 TO THE RELEASED VALUATION SHOULD BE ELIMINATED FROM QUOTATION NO. A-1169. SEE ALSO PACIFIC COAST TARIFF BUREAU U.S. GOVERNMENT RATE QUOTATION NO. 2, THE SUBJECT OF OUR DECISION B -135792, 38 COMP. GEN. 257, IN WHICH ITEM NO. 145 PROVIDES ONE UNRELEASED AND TWO RELEASED RATINGS ON RADIAL CYLINDER TYPE ENGINES. THE TWO RELEASED RATINGS ARE CONDITIONED UPON THE ENTRY OF THE VALUATION ON THE SHIPPING ORDER AND THE BILL OF LADING IN THIS 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.

DECISION B-135792 CONSIDERED SEVERAL SHIPMENTS OF THESE ENGINES, COVERED BY BILLS OF LADING WHICH DID NOT BEAR THE REQUIRED STATEMENT OF THE RELEASED VALUE, AND HELD THAT CONDITION 5 OF THE BILL OF LADING CONTRACT WAS SUFFICIENT TO SATISFY THE QUOTATION REQUIREMENT.

QUOTATIONS MADE BY CARRIERS TO THE UNITED STATES PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT ARE OFFERS TO PERFORM TRANSPORTATION SERVICES AT NAMED RATINGS OR RATES SUBJECT TO THE TERMS AND CONDITIONS STIPULATED THEREIN. IT IS AN ELEMENTARY PRINCIPLE OF CONTRACT LAW THAT AN OFFER, TO BE ACCEPTED, MUST BE ACCEPTED IN THE PRECISE TERMS IN WHICH IT IS MADE. ANY MATERIAL VARIANCE CONSTITUTES A COUNTER OFFER WHICH REQUIRES ACCEPTANCE BY THE OFFEROR TO BECOME OPERATIVE. HARTMAN V. LAUCHLI, 194 F.2D 787, 797, CERTIORARI DENIED 343 U.S. 978; BURKS V. COLONIAL LIFE AND ACCIDENT INS. CO., 98 F.1SUPP. 140, 143, AFFIRMED 192 F.2D 643, CERTIORARI DENIED 343 U.S. 915. IN PARALLEL SITUATIONS INVOLVING TARIFFS DULY PUBLISHED AND FILED WITH THE INTERSTATE COMMERCE COMMISSION, THE TARIFF RATES HAVE BEEN HELD TO BE INAPPLICABLE BECAUSE OF THE GOVERNMENT'S FAILURE TO MEET THE TARIFF REQUIREMENTS ON WHICH THE RATES WERE CONDITIONED. BUSH V. UNITED STATES, 52 C.1CLS. 199; UNION PACIFIC R. CO. V. UNITED STATES, 132 F.1SUPP. 230; CHESAPEAKE AND OHIO RAILWAY COMPANY V. UNITED STATES, 161 F.1SUPP. 403.

THE CASE OF GLICKFELD V. HOWARD VAN LINES, 213 F.2D 723, WHEREIN THE COURT HELD THE PARTIES TO THEIR CONTRACT DESPITE A DEVIATION FROM THE FORM REQUIRED BY THE TARIFF IS DISTINGUISHABLE. IN THAT CASE, THE RELEASED VALUATION APPLICABLE TO THE HOUSEHOLD GOODS TO BE SHIPPED WAS SET OUT IN THE " ORDER FOR SERVICE" AND IN THE BILL OF LADING IN THE SUBSTANCE, BUT NOT IN THE PRECISE FORM, REQUIRED BY THE TARIFF, AND THE SHIPPER, AFTER DISCUSSING WITH THE CARRIER THE RELEASED RATE TO BE APPLIED, SIGNED THE RELEASED VALUATION CLAUSE IN THE " ORDER FOR SERVICE.' AFTER THE SHIPPER'S DEPARTURE, THE CARRIER PREPARED THE BILL OF LADING FROM THE " ORDER FOR SERVICE.' ALTHOUGH THE SHIPPER HAD RECEIVED THE BENEFIT OF THE LOWER RELEASED RATE, HE SOUGHT TO AVOID THE LIMITATION ON THE CARRIER'S LIABILITY AND TO RECOVER THE FULL VALUE OF THOSE GOODS WHICH WERE DAMAGED IN TRANSIT. THE COURT HELD THAT THE DEVIATION IN FORM WAS NOT SUFFICIENT TO VOID THE CONTRACT SINCE THE AGREED VALUATION WAS STATED ON BOTH THE " ORDER FOR SERVICE" AND THE BILL OF LADING, THE SHIPPER HAD SIGNED THE AGREED VALUATION ON THE " ORDER FOR SERVICE," AND HAD RECEIVED THE BENEFIT OF THE LOWER RATE. IN CIRCUMSTANCES SUCH AS THOSE OBTAINING WITH RESPECT TO QUOTATION NO. 2 AND NO. A-1169 WHERE, DESPITE CONDITION 5 OF THE GOVERNMENT BILL OF LADING, THE OFFERS OF REDUCED RATES WERE MADE CONDITIONED UPON THE NOTATION OF THE SHIPPER'S RELEASED VALUATION IN A SPECIFIED FORM ON THE BILL OF LADING, IT CANNOT REASONABLY BE HELD THAT THE INTENT OF THE OFFEROR IN MAKING THE CONDITION IS FULFILLED BY THE MERE EXISTENCE OF CONDITION 5. NEITHER CAN IT FAIRLY BE SAID THAT THE OFFERORS HAD RECEIVED THE BENEFIT OF THE LIMITATION OF LIABILITY AND ARE ESTOPPED FROM CLAIMING THE HIGHER RATE (CF. AMERICAN RAILWAY EXPRESS CO. V. LINDENBURG, 260 U.S. 584), SINCE, THE CONDITIONS OF THEIR OFFERS NOT HAVING BEEN COMPLIED WITH, THEY BILLED IN ACCORDANCE WITH THE PUBLISHED TARIFF RATES, THUS IMPLIEDLY ASSUMING THE LIABILITY ATTENDANT UPON THOSE RATES.

IN ORDER TO TAKE ADVANTAGE OF THE RELEASED VALUATION RATES OFFERED IN THESE QUOTATIONS, IT IS INCUMBENT UPON THE GOVERNMENT SHIPPING OFFICERS TO PLACE OR CAUSE TO BE PLACED ON THE BILLS OF LADING THE REQUIRED STATEMENT AS TO THE RELEASED VALUATION. THIS IS TRUE EVEN THOUGH THE DUTY TO ISSUE BILLS OF LADING IS ON THE CARRIERS (SEE 49 U.S.C.A. 20 (11), 319; BOSTON AND MAINE R. CO. V. HOOKER, 233 U.S. 97; VALCO MFG. CO. V. C. RICKARD AND SONS, INC., 92 A.2D 501), SINCE THEY ARE NECESSARILY PREPARED AT THE SHIPPER'S DIRECTION. ALSO, SEE GOOD 1HOPKINS LUMBER CO. V. GREAT NORTHERN RAILWAY COMPANY, 51 I.C.C. 99; AMERICAN LICORICE COMPANY V. CHICAGO, M. AND ST. P. RY. O., 95 I.C.C. 525; AND EMBASSY DISTRIBUTING COMPANY, INC. V. WESTERN CARLOADING COMPANY, INC., 280 I.C.C. 229, IN WHICH THE SHIPPER WAS CHARGED WITH RESPONSIBILITY FOR THE INSERTION IN THE BILL OF LADING OF VARIOUS NOTATIONS REQUIRED BY TARIFF. BECAUSE OF THE FAILURE TO COMPLY WITH THE CONDITION ATTACHED TO THE RELEASED RATINGS IN ITEM 145 OF PACIFIC COAST TARIFF BUREAU U.S. GOVERNMENT RATE QUOTATION NO. 2, THE GOVERNMENT WAS NOT PROPERLY ENTITLED TO THE BENEFIT OF THOSE RELEASED RATINGS IN CONNECTION WITH BOTH THE SHIPMENTS CONSIDERED IN DECISION B 135792.

IN VIEW OF THE FOREGOING, OUR DECISION B-135792, 38 COMP. GEN. 257, IS OVERRULED. IN THE FUTURE, WHERE IT IS DETERMINED THAT IT WOULD BE ADVANTAGEOUS TO THE GOVERNMENT TO ACCEPT AND USE SECTION 22 QUOTATIONS, WHETHER MADE HERETOFORE OR HEREAFTER, OFFERING REDUCED RATES CONDITIONED UPON RELEASED VALUATIONS, WE SUGGEST THAT GOVERNMENT SHIPPING OFFICERS BE INSTRUCTED TO COMPLY WITH ANY REQUIREMENTS IN THE QUOTATIONS FOR DECLARING THE RELEASED VALUATION OF THE GOODS IN WRITING ON THE BILLS OF LADING SO THAT THE GOVERNMENT MAY HAVE THE ADVANTAGE OF THE LOWER RATES, UNLESS IN A PARTICULAR INSTANCE THE NEEDS OF THE GOVERNMENT ARE SUCH AS TO REQUIRE SHIPMENTS WITHOUT REGARD TO THE LOWER RATE BASED UPON THE RELEASED VALUATION. IT IS FURTHER SUGGESTED THAT IN NEGOTIATING SECTION 22 RATES BASED UPON RELEASED VALUATIONS, IT MAY BE FEASIBLE TO HAVE THE QUOTATIONS SO WORDED THAT THE SHIPMENTS TRAVEL AT THE RELEASED VALUES UNLESS OTHERWISE SPECIFIED BY THE GOVERNMENT SO AS TO OBVIATE THE NEED FOR INSERTING NOTATIONS ON NUMEROUS BILLS OF LADING.