B-141507, APR. 6, 1960

B-141507: Apr 6, 1960

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TO PACIFIC INTERMOUNTAIN EXPRESS: REFERENCE IS MADE TO THE REQUEST IN YOUR LETTER OF DECEMBER 11. THE RECORD HERE SHOWS THAT THIS SHIPMENT WAS TENDERED FOR TRANSPORTATION VIA THE CLIPPER CARLOADING COMPANY WITH ELLIOTT BROTHERS TRUCKING COMPANY ACTING AS PICKUP AGENT AT THE POINT OF ORIGIN. IT WAS DETERMINED THAT IN VIEW OF THE CIRCUMSTANCES THE GOVERNMENT WAS NOT OBLIGATED TO PAY AN AMOUNT IN EXCESS OF THESE CHARGES WHICH WERE AVAILABLE BY THE USE OF THE RATES NAMED IN FREIGHT FORWARDERS TARIFF BUREAU TARIFFS 1-A AND 2-B. THE AMOUNT WAS WITHHELD FROM OTHER MONIES PAYABLE TO YOUR COMPANY. IT WILL BE OBSERVED. THAT THE BILL OF LADING WAS ISSUED TO "CLIPPER CARLOADING CO. IT WAS UNDER A DUTY TO DIRECT THE SHIPPER'S ATTENTION TO SUCH FACT.

B-141507, APR. 6, 1960

TO PACIFIC INTERMOUNTAIN EXPRESS:

REFERENCE IS MADE TO THE REQUEST IN YOUR LETTER OF DECEMBER 11, 1959, FOR A REVIEW OF THE SETTLEMENT (TK-676-856) WHICH DISALLOWED YOUR CLAIM, PER BILL O/C) 8-2412, FOR $47.11 IN ADDITIONAL FREIGHT CHARGES ON THE 1,432 POUNDS OF ALUMINUM ARTICLES, NOIBN, TRANSPORTED FROM DOVER AIR FORCE BASE, DELAWARE, TO PLANEHAVEN, CALIFORNIA, UNDER BILL OF LADING AF-5954779 (COPY ENCLOSED), DATED MAY 2, 1956.

THE RECORD HERE SHOWS THAT THIS SHIPMENT WAS TENDERED FOR TRANSPORTATION VIA THE CLIPPER CARLOADING COMPANY WITH ELLIOTT BROTHERS TRUCKING COMPANY ACTING AS PICKUP AGENT AT THE POINT OF ORIGIN. THE RECORD ALSO SHOWS THAT THE CLIPPER CARLOADING COMPANY, WHICH THE BILL OF LADING INDICATES MADE THE DELIVERY, LATER TRANSMITTED THE BILL OF LADING WITH A WAIVER OF THE FREIGHT CHARGES TO YOUR COMPANY, ASSERTING IN THE COVERING LETTER THAT THE BILL OF LADING HAD BEEN ACCOMPLISHED IN ITS FAVOR IN ERROR. IN THE AUDIT OF THE FREIGHT CHARGES OF $211.67 ASSESSED BY YOUR COMPANY, HOWEVER, IT WAS DETERMINED THAT IN VIEW OF THE CIRCUMSTANCES THE GOVERNMENT WAS NOT OBLIGATED TO PAY AN AMOUNT IN EXCESS OF THESE CHARGES WHICH WERE AVAILABLE BY THE USE OF THE RATES NAMED IN FREIGHT FORWARDERS TARIFF BUREAU TARIFFS 1-A AND 2-B, AND UPON THE FAILURE OF YOUR COMPANY TO MAKE REFUND OF THE OVERPAYMENT OF $47.11, THE AMOUNT WAS WITHHELD FROM OTHER MONIES PAYABLE TO YOUR COMPANY.

YOU URGE, SUPPORTED BY A COPY OF A LETTER FROM THE ELLIOTT BROTHERS TRUCKING COMPANY, THAT THIS SHIPMENT ACTUALLY MOVED IN MOTOR CARRIER FREIGHT SERVICE BECAUSE THE ELLIOTT BROTHER TRUCKING COMPANY DID NOT PERFORM PICKUP SERVICE FOR THE CLIPPER CARLOADING COMPANY AND SHOULD NOT, THEREFORE, BE CONSIDERED AS ACTING AS AN AGENT FOR THAT COMPANY. IT WILL BE OBSERVED, HOWEVER, THAT THE BILL OF LADING WAS ISSUED TO "CLIPPER CARLOADING CO. (P/G) AGT - ELLIOTT BROS. TRKG. O.)" AND BEARS THE SIGNATURE OF "RICHARD BETTER PER ELLIOTT" AS RECEIVING AGENT OF THE CLIPPER CARLOADING COMPANY. IF, AS YOU CONTEND, THE ELLIOTT BROTHERS TRUCKING COMPANY DID NOT UNDERTAKE TO PERFORM PICKUP SERVICES FOR THE FREIGHT FORWARDER, IT WAS UNDER A DUTY TO DIRECT THE SHIPPER'S ATTENTION TO SUCH FACT, AND TO HAVE REFUSED TO ACCEPT THE SHIPMENT UNLESS AND UNTIL THE ROUTING SHOWN ON THE BILL OF LADING WAS CHANGED. THE INTERSTATE COMMERCE COMMISSION HAS REPEATEDLY FOUND THAT AN OBLIGATION RESTS ON A CARRIER'S AGENTS TO REFRAIN FROM EXECUTING BILLS OF LADING WHICH ARE IMPOSSIBLE OF PERFORMANCE. EXPOSITION COTTON MILLS V. SOUTHERN RY. CO., 234 I.C.C. 441, 442. MOREOVER, THE COMMISSION HAS ALSO FOUND THAT THE SUBSTITUTION OF ONE FORM OF TRANSPORTATION FOR ANOTHER AT THE CARRIER'S OPTION, WHERE THE SHIPPER OTHERWISE DIRECTS, CONSTITUTES A BREACH OF THE CONTRACT OF CARRIAGE IN CONTRAVENTION OF SECTION 20/11) AND 219 OF THE INTERSTATE COMMERCE ACT. SUBSTITUTED FREIGHT SERVICE, 232 I.C.C. 683, 691. SEE ALSO BENNETT V. MISSOURI PACIFIC RY. CO., 164 F. 1084 AND REYNOLDS EX. V. ADAMS EXPRESS CO., 90 S.E. 510.

REGARDING YOUR SUGGESTION THAT THE GOVERNMENT SHOULD LOOK TO THE ORIGIN CARRIER, RATHER THAN TO YOUR COMPANY, FOR REPAYMENT OF THE EXCESS CHARGES, IT IS OBSERVED THAT THE CHARGES BILLED ARE SUPPORTED BY THE BILL OF LADING WHICH WAS FORWARDED TO YOUR COMPANY TOGETHER WITH A WAIVER OF THE FREIGHT CHARGES BY THE CLIPPER CARLOADING COMPANY. THUS, AT THE TIME THE CHARGES WERE COMPUTED, YOUR COMPANY HAD IN ITS POSSESSION INFORMATION WHICH CLEARLY INDICATED THAT THE TYPE SERVICE REQUESTED BY THE SHIPPER HAD NOT BEEN FURNISHED, AND COULD HAVE MADE INQUIRY AS TO THE REASON FOR THE VARIANCE BETWEEN THE FREIGHT SERVICE REQUESTED AND FURNISHED. IN THE ABSENCE OF ANY KNOWN CONCURRENCE BY THE SHIPPER IN THE CHANGE IN THE TYPE OF SERVICE UNDER WHICH THE SHIPMENT SHOULD MOVE, IT WOULD SEEM THAT YOUR COMPANY WAS OBLIGATED TO BILL FOR THE TYPE SERVICE REQUESTED AND TO HAVE MADE AN ADJUSTMENT IN THE EARNINGS REMITTED TO THE CARRIER RESPONSIBLE FOR THE BREACH IN CONTRACT.

ACCORDINGLY, AND SINCE UNDER THE PROVISIONS OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, THE RIGHT IS RESERVED TO THE GOVERNMENT TO RECOVER, FROM THE BILLING CARRIER, AMOUNTS OVERPAID, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.