B-139232, JUL. 23, 1959

B-139232: Jul 23, 1959

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TO THE MAINE CENTRAL RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF MARCH 27 AND JUNE 15. EACH OF WHICH WAS RECEIPTED BY THE INITIAL CARRIER'S AGENT ON AUGUST 28. WAS ISSUED BY THE TRANSPORTATION OFFICER AT FORT CAMPBELL. THAT ALL OF THEM WERE PRESENTED TO THE INITIAL CARRIER FOR EXECUTION AT THE SAME TIME. THE RECORD SHOWS FURTHER THAT ALL OF THE TRANSPORTED MATERIALS WERE LOADED IN CAR DL AND W 36629 BY THE SHIPPER ON AUGUST 28. THAT THE ENTIRE SHIPMENT WAS CONSIGNED TO THE ONE CONSIGNEE. WHERE THE MATERIALS WERE UNLOADED BY THE CONSIGNEE. YOUR ORIGINAL BILLING ON THIS SHIPMENT (A-451-10/56) WAS IN THE AMOUNT OF $1. YOU WERE PAID $1. YOUR SUPPLEMENTAL CLAIM FOR PAYMENT UPON THE BASIS OF LESS-THAN CARLOAD RATES IS BASED ESSENTIALLY UPON THE PREMISE THAT SINCE FIVE SEPARATE BILLS OF LADING WERE INVOLVED.

B-139232, JUL. 23, 1959

TO THE MAINE CENTRAL RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 27 AND JUNE 15, 1959, AR 10 AND AR-11, RESPECTIVELY, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 18, 1958, WHICH DISALLOWED YOUR CLAIM FOR $327.53 ADDITIONAL FREIGHT, PER YOUR BILLS NOS. A-451-A 2/58 AND A-451-B 10/56 SUPP. 3/59, IN CONNECTION WITH THE TRANSPORTATION OF MISCELLANEOUS ITEMS OF SUPPLY FROM FORT CAMPBELL, EDGOTEN, KENTUCKY, TO DOW AIR FORCE BASE, BANGOR, MAINE, UNDER GOVERNMENT BILLS OF LADING NOS. WY-6194431, WY- 6194461, WY-6194425, WY-6194463 AND WY-6194462, EACH OF WHICH WAS RECEIPTED BY THE INITIAL CARRIER'S AGENT ON AUGUST 28, 1956.

OUR RECORDS SHOW THAT EACH OF THE BILLS OF LADING CITED, EXCEPT FOR WY- 6194425, DATED AUGUST 23, 1956, WAS ISSUED BY THE TRANSPORTATION OFFICER AT FORT CAMPBELL, KENTUCKY, ON AUGUST 27, 1956, AND THAT ALL OF THEM WERE PRESENTED TO THE INITIAL CARRIER FOR EXECUTION AT THE SAME TIME, AUGUST 28, 1956. THE RECORD SHOWS FURTHER THAT ALL OF THE TRANSPORTED MATERIALS WERE LOADED IN CAR DL AND W 36629 BY THE SHIPPER ON AUGUST 28, 1956, AND THAT THE ENTIRE SHIPMENT WAS CONSIGNED TO THE ONE CONSIGNEE, DOW AIR FORCE BASE, BANGOR, MAINE. THUS, THE SHIPMENT MOVED, WITHOUT BREAKING BULK, FROM ORIGIN TO DESTINATION, WHERE THE MATERIALS WERE UNLOADED BY THE CONSIGNEE.

YOUR ORIGINAL BILLING ON THIS SHIPMENT (A-451-10/56) WAS IN THE AMOUNT OF $1,099.98, CORRECTLY COMPUTED UPON THE BASIS OF THE CARLOAD RATINGS AND MIXED CARLOAD MINIMUM WEIGHT ON A PORTION OF THE SHIPMENT AS PROVIDED UNDER RULE 10 OF THE UNIFORM FREIGHT CLASSIFICATION NO. 3, PLUS CERTAIN LESS-THAN-CARLOAD RATINGS AS APPLIED TO ACTUAL WEIGHTS ON THE REMAINDER. IN NOVEMBER 1956, YOU WERE PAID $1,099.98 UPON THE BASIS OF YOUR ORIGINAL BILLING.

BY YOUR BILL NO. A-451-A 2/58, YOU CLAIMED $327.53 ADDITIONAL FREIGHT BASED UPON COMPUTATIONS SET FORTH IN AN ACCOMPANYING STATEMENT, SHOWING A TOTAL TRANSPORTATION CHARGE FOR THIS SHIPMENT OF $1,427.51, IN LIEU OF THE SUM OF $1,099.98 ORIGINALLY CLAIMED AND PAID. YOUR SUPPLEMENTAL CLAIM FOR PAYMENT UPON THE BASIS OF LESS-THAN CARLOAD RATES IS BASED ESSENTIALLY UPON THE PREMISE THAT SINCE FIVE SEPARATE BILLS OF LADING WERE INVOLVED, THE PRESENT MOVEMENT DID NOT CONSTITUTE A REGULAR CARLOAD SHIPMENT AS TO WHICH THE CARLOAD RATES ON THE TRANSPORTED COMMODITIES WOULD APPLY.

AS YOU WERE ADVISED IN OUR SETTLEMENT OF DECEMBER 18, 1958, RULE 14, SECTION 1 OF THE UNIFORM FREIGHT CLASSIFICATION EXPRESSLY PROVIDES THAT "ONLY ONE BILL OF LADING FROM ONE LOADING POINT AND ONE FREIGHT BILL (AS HERE) SHALL BE ISSUED FOR SUCH CL SHIPMENT.' IN ADDITION THERETO, THE INTERSTATE COMMERCE COMMISSION, AND THE COURTS AS WELL, HAVE RECOGNIZED THAT THE RESPONSIBILITY OF PREPARING AND ISSUING PROPERLY EXECUTED BILLS OF LADING RESTS PRIMARILY UPON THE CARRIER, AND NOT THE SHIPPER. NOT ONLY DOES THE RECORD HERE ESTABLISH THAT THE MATERIALS INVOLVED WERE SHIPPED FROM ONE STATION, IN ONE CAR, AND IN ONE CALENDAR DAY, TO ONE DESTINATION, BUT, ALSO, THAT THE FIVE BILLS OF LADING WERE PRESENTED TO THE CARRIER FOR EXECUTION AT THE SAME TIME. IN A SOMEWHAT PARALLEL SITUATION CONSIDERED IN THE CASE OF EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY COMPANY, 234 I.C.C. 441, AT PAGE 442, THE COMMISSION SAID:

"ALL THE FACTS AND CIRCUMSTANCES ATTENDING THE MAKING OF THESESHIPMENTS AND THE BILLS OF LADING ON THEIR FACE CONCLUSIVELY SHOW THAT THEY WERE CARLOAD SHIPMENTS. THE QUESTION PRESENTED HERE IS WHETHER THE FACT THAT MORE THAN ONE BILL OF LADING WAS ISSUED PREVENTS THE APPLICATION OF THE CARLOAD RATE. IF IT DOES, UNDER RULE 14 THE ISSUANCE OF MORE THAN ONE FREIGHT BILL WOULD ALSO HAVE THAT EFFECT. IT IS SIGNIFICANT THAT THE FIRST SENTENCE OF RULE 14 PROVIDES THAT CARLOAD RATES APPLY ONLY WHEN THE CONDITIONS THERE STATED ARE COMPLIED WITH, BUT THAT NO SUCH PROHIBITION IS CONTAINED IN THE SECOND SENTENCE, WHICH IS THE ONLY ONE WITH WHICH WE ARE HERE CONCERNED. THAT SENTENCE SAYS THAT ONLY ONE BILL OF LADING AND FREIGHT BILL "SHALL" BE ISSUED. CARRIERS ONLY CAN ISSUE FREIGHT BILLS, AND THE CARMACK AMENDMENT SPECIFICALLY REQUIRES THAT THEY ISSUE THROUGH BILLS OF LADING. THE DUTY OF ISSUING APPROPRIATE BILLS OF LADING RESTS ON THE CARRIERS, AND IT IS THEY WHO ARE PROHIBITED FROM ISSUING MORE THAN ONE BILL OF LADING ON A CARLOAD SHIPMENT BY RULE 14. * * *"

SEE ALSO, WILLINGHAM V. SELIGMAN, 179 F.2D 257.

IN THE CIRCUMSTANCES HERE PREVAILING, IT SEEMS CLEAR THAT CARLOAD SERVICE WAS IN FACT PERFORMED ON THIS SHIPMENT, AND THE MANNER OF BILLING, THEREFORE, MAY NOT BE USED TO WITHHOLD FROM THE SHIPPER THE RATE PUBLISHED FOR THE SERVICE RECEIVED BY HIM. SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY RAILWAY COMPANY, 274 I.C.C. 245, 247.

YOUR CONTENTION THAT THESE SHIPMENTS WERE TENDERED UNROUTED IS NOT UNDERSTOOD IN VIEW OF THE FACT THAT EACH BILL OF LADING BORE THE NOTATION "TC AND CHEAPEST CONN. PKG CAR IF AVAIL., " OR ITS EQUIVALENT. OTHERWISE, YOUR REFERENCE TO A QUOTATION FROM THE "TRAFFIC WORLD," AND THE CASES CITED BY YOU IN SUPPORT OF YOUR POSITION, ARE NOT DEEMED APPLICABLE TO THE FACTS IN THE INSTANT CASE.