B-139899, SEP. 20, 1960

B-139899: Sep 20, 1960

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TO GREAT SOUTHERN TRUCKING COMPANY: FURTHER REFERENCE IS MADE TO THE SEVERAL SHIPMENTS OF INTERNAL COMBUSTION ENGINES TRANSPORTED BY YOUR COMPANY FROM ROBINS AIR FORCE BASE. WHICH WERE THE SUBJECT OF OUR LETTER OF AUGUST 19. ADVISING THAT WE WERE DEVELOPING THE INFORMATION FOR MAKING REPLY TO YOUR LETTERS OF JUNE 9 AND 15. YOU ASSERT THAT THESE ENGINES WERE TENDERED FOR TRANSPORTATION AT RELEASED VALUATIONS IN EXCESS OF $5 PER POUND. THE ONLY LAWFUL BASIS FOR CLASSIFYING AND RATING THE SHIPMENTS IS THE COLUMN-70 RATING PUBLISHED IN ITEM 61250 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF E-3. IS THE SAME OR SIMILAR TO THAT CONSIDERED IN THE CASE OF BENTON RAPID EXPRESS. THE COURT NOTED THAT THE NOTATIONS WERE PLACED ON THE BILLS OF LADING PURSUANT TO AN ORDER DATED MARCH 4.

B-139899, SEP. 20, 1960

TO GREAT SOUTHERN TRUCKING COMPANY:

FURTHER REFERENCE IS MADE TO THE SEVERAL SHIPMENTS OF INTERNAL COMBUSTION ENGINES TRANSPORTED BY YOUR COMPANY FROM ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA, TO MACDILL AIR FORCE BASE AND MIAMI, FLORIDA, WHICH WERE THE SUBJECT OF OUR LETTER OF AUGUST 19, 1960, ADVISING THAT WE WERE DEVELOPING THE INFORMATION FOR MAKING REPLY TO YOUR LETTERS OF JUNE 9 AND 15, 1959.

IN TAKING ISSUE WITH THE BASES USED IN THE OVERPAYMENTS STATED AGAINST THE FREIGHT CHARGES ASSESSED BY YOUR COMPANY, YOU ASSERT THAT THESE ENGINES WERE TENDERED FOR TRANSPORTATION AT RELEASED VALUATIONS IN EXCESS OF $5 PER POUND, AND THAT IN THE ABSENCE OF REDUCED RATES PROFFERED BY YOUR COMPANY, THE ONLY LAWFUL BASIS FOR CLASSIFYING AND RATING THE SHIPMENTS IS THE COLUMN-70 RATING PUBLISHED IN ITEM 61250 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF E-3, MF-I.C.C. 483. THE WORDING SHOWN ON THE BILLS OF LADING COVERING THE SHIPMENTS INVOLVED, HOWEVER, IS THE SAME OR SIMILAR TO THAT CONSIDERED IN THE CASE OF BENTON RAPID EXPRESS, INCORPORATED V. THE UNITED STATES, CT.CL. NO. 217-54, DECIDED APRIL 8, 1959, IN WHICH THE COURT FOUND THAT THE LOWEST RELEASED VALUATION RATING HAD APPLICATION.

IN THE CASE CITED, THE COURT NOTED THAT THE NOTATIONS WERE PLACED ON THE BILLS OF LADING PURSUANT TO AN ORDER DATED MARCH 4, 1949, ISSUED BY THE CHIEF OF TRANSPORTATION DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF, WHICH READS AS FOLLOWS:

"REFERENCE SHIPMENTS OF AIRPLANE ENGINES VIA COMMERCIAL MOTOR FREIGHT. RELEASED VALUATION ITEMS NOT SUSPENDED BY INTERSTATE COMMERCE COMMISSION. MOTOR FREIGHT TRANSPORTATION OF INTERNAL COMBUSTION ENGINES NOW CONSIDERED PREMIUM TRANSPORTATION AND WILL NOT ORIGINALLY BE USED UNLESS CARRIER AGREES TO AND TRANSPORTATION OFFICERS INSERT FOLLOWING NOTATION ON BILLS OF LADING: ,RELEASED AT FULL VALUATION. LOWEST RATING PER ITEM 61244, SUPPLEMENT 21, NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 9, APPLICABLE.' WHEN INTERNAL COMBUSTION ENGINES MUST MOVE BY MOTOR FREIGHT AND CARRIER WILL NOT AGREE TO ABOVE NOTATION THE FOLLOWING NOTATION WILL BE PLACED ON BILLS OF LADING: "LOWEST RATE TO APPLY PER CONDITION NO. 5 OF THIS BILL OF LADING.'"

THESE INSTRUCTIONS WERE ISSUED AFTER CONFERENCES HELD WITH THE REPRESENTATIVES OF SEVERAL MOTOR CARRIERS WHO DESIRED TO REGAIN FOR THEIR COMPANIES A PART OF THE TRAFFIC DIVERTED TO RAIL TRANSPORTATION FOLLOWING THE AMENDMENT OF THE MOTOR CLASSIFICATION TO PROVIDE RELEASED VALUATION RATINGS WHICH RESULTED IN HIGHER CHARGES THAN THOSE AVAILABLE VIA RAIL TRANSPORTATION. THE BILL OF LADING ANNOTATION WAS DESIGNED FOR THE PURPOSE OF ENABLING CARRIERS WITHOUT FORMAL REDUCED RATE TENDERS ON FILE WITH THE GOVERNMENT ALSO TO PARTICIPATE IN BUSINESS WHICH OTHERWISE WOULD HAVE MOVED VIA OTHER CARRIERS.

UNDER THE ORDER, SHIPMENTS WERE NOT TO BE MADE VIA MOTOR CARRIER UNLESS THE LATTER AGREED TO PROTECT THE FULL VALUATION OF THE CARGO AND TO TRANSPORT THE SHIPMENT AT THE LOWEST RELEASED VALUATION RATING. IN THOSE RARE INSTANCES IN WHICH NEITHER RAIL TRANSPORTATION NOR REDUCED MOTOR CARRIER RATINGS WERE AVAILABLE, SHIPMENTS WERE STILL REQUIRED TO BE MADE AT THE LOWEST RELEASED VALUATION IN ACCORDANCE WITH CONDITION 5 OF THE GOVERNMENT BILL OF LADING. THUS, UNDER EITHER SITUATION SHIPMENTS WERE TO BE TRANSPORTED AT THE LOWEST RELEASED VALUATION.

REGARDING YOUR CONTENTION THAT RECOVERY OF THE OVERCHARGES ON THESE SHIPMENTS IS LIMITED BY THE DECISION IN UNITED STATES V. DE QUEEN AND EASTERN RAILROAD CO., YOUR ATTENTION IS INVITED TO THE REVERSAL ON APPEAL, REPORTED IN 271 F.2D 597, OF THE INITIAL HOLDING OF THE DISTRICT COURT.

SINCE THE BASES EMPLOYED IN THE COMPUTATION OF THE OVERPAYMENTS SEEM CONSISTENT WITH THE HOLDINGS IN THE COURT DECISIONS CITED, THE AUDIT ACTION TAKEN APPEARS CORRECT AND ANY UNCOLLECTED OVERPAID AMOUNTS WILL BE RECOVERED BY DEDUCTION OR BY OTHER MEANS, UNLESS PROMPTLY REFUNDED.