B-142705, JUL. 28, 1960

B-142705, JUL. 28, 1960

TO MILLER MOTOR EXPRESS, INC.:

IN YOUR LETTER OF APRIL 20, 1960, CONCERNING YOUR O/C CLAIM NO. 15778, YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE DATED MARCH 9, 1960, OUR FILE NO. TK-678988, ON WHICH WE DISALLOWED YOUR CLAIM, ON SUPPLEMENTAL BILL NO. 27777, FOR $61.21, ALLEGEDLY THE ADDITIONAL FREIGHT CHARGES DUE FOR EXCLUSIVE USE OF VEHICLE SERVICE IN CONNECTION WITH TRANSPORTATION SERVICE FURNISHED THE DEPARTMENT OF THE AIR FORCE ON A SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING NO. AF-9765056, IN MAY 1959. YOU ALSO DECLINED TO REFUND AN OVERCHARGE OF $114.74, FOUND ON YOUR BILL NO. 27738 IN OUR AUDIT OF THE FREIGHT CHARGES ORIGINALLY CLAIMED AND COLLECTED BY YOU ON THIS SHIPMENT.

BILL OF LADING NO. AF-9765056, PREPARED AT ORLANDO AIR FORCE BASE, FLORIDA, COVERED A SHIPMENT OF 16,161 POUNDS OF PERSONAL EFFECTS AND PROFESSIONAL EQUIPMENT WHICH, ON MAY 4, 1959, WAS TENDERED TO THE GREAT SOUTHERN TRUCKING COMPANY FOR TRANSPORTATION FROM ORLANDO AIR FORCE BASE, TO BROOKLYN, NEW YORK, FOR EXPORT. ASIDE FROM THE NORMAL ENTRIES, TYPEWRITTEN ANNOTATIONS ON THE BILL OF LADING INDICATE THAT "SHIPMENT MUST ARRIVE 7 MAY 1959," AT BROOKLYN, THAT "SEAL B 322200" WAS APPLIED TO THE TRUCK ORDERED FOR THE SHIPMENT; AND THAT THE TARIFF AUTHORITY FOR THE SHIPMENT WAS "SMCRC 504 TRUCKLOAD MIN. 12,000.' THE MEMORANDUM COPY OF THE CARRIER'S FREIGHT BILL REFLECTS THAT THE SHIPMENT ARRIVED AT DESTINATION ON MAY 7TH. IT IS NOTED, HOWEVER, THAT THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING SHOWS MAY 12TH AS THE DATE OF DELIVERY.

FOR THIS TRANSPORTATION SERVICE, YOU COLLECTED FREIGHT CHARGES OF $651.29, ON YOUR BILL NO. 27728, DATED JUNE 8, 1959, APPARENTLY BASED ON A RATE APPLICABLE TO TRUCKLOAD SERVICE. ON JUNE 16, 1959, YOU FILED A CLAIM FOR $61.21, ON SUPPLEMENTAL BILL NO. 27777, SUPPORTING IT WITH A PHOTOSTATIC COPY OF A LETTER DATED MAY 22, 1959, TO THE GREAT SOUTHERN TRUCKING COMPANY, IN WHICH CAPTAIN WILEY, WHO HAD PREPARED THE BILL OF LADING, WROTE THAT " "EXCLUSIVE USE OF VEHICLE" WAS AUTHORIZED ON THE SHIPMENT * * * TO MEET THE DEADLINE DATE," BUT THAT A NOTATION TO THAT EFFECT WAS NOT SHOWN ON THE BILL OF LADING.

THE EXCLUSIVE-USE CHARGE BASIS UPON WHICH YOUR CLAIM IS STATED IS SHOWN IN ITEM 10020-E, SUPPLEMENT 161 TO SOUTHERN MOTOR CARRIERS RATE CONFERENCE FREIGHT TARIFF NO. 504, MF-I.C.C. NO. 614. WHEN A VEHICLE IS USED EXCLUSIVELY FOR THE TRANSPORTATION OF A SHIPMENT THE ITEM PROVIDES FOR THE ASSESSMENT OF A MINIMUM CHARGE COMPUTED AT THE CLASS 100 RATE FOR 15,000 POUNDS. IT ALSO PROVIDES, IN PARAGRAPH (B), THAT "EACH BILL OF LADING AND FREIGHT BILL COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS: "EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER.'" BILL OF LADING NO. AF-9765056 IS NOT SO MARKED OR STAMPED.

THE INTERSTATE COMMERCE COMMISSION, IN GUS BLASS COMPANY V. POWELLBROS. TRUCK LINE, 53 M.C.C. 603, CITING THE WELL-ESTABLISHED PRINCIPLE THAT THE RULES IN A TARIFF CANNOT BE WAIVED (DAVIS V. HENDERSON, 266 U.S. 92; NATURAL PRODUCTS REFINING CO., V. CENTRAL RAILROAD CO. OF N.J., 216 I.C.C. 105), HELD THAT THE OMISSION OF A REQUIRED BILL OF LADING ENDORSEMENT WAS A DEFECT FATAL TO THE APPLICATION OF TRANSPORTATION CHARGES BASED ON AN EXCLUSIVE-USE OF VEHICLE RULE EVEN THOUGH EXCLUSIVE USE OF VEHICLE SERVICE ACTUALLY WAS REQUESTED AND FURNISHED. SEE, ALSO, SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CARRIERS CASES 710. IN THESE CIRCUMSTANCES, AND BECAUSE THE RECORD DOES NOT INDICATE THAT THE BILL OF LADING WAS UNAVAILABLE FOR ENDORSING AT THE TIME THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER, THE OMISSION OF THE REQUIRED BILL OF LADING ANNOTATION, A DEFECT WHICH IS NOT CURED BY LATER STATEMENTS OF SHIPPERS' INTENTIONS, DEFEATS YOUR CLAIM FOR EXCLUSIVE-USE SERVICE. FURTHERMORE, THE TARIFF AUTHORITY SHOWN ON THE BILL OF LADING INDICATES THAT AT THE TIME OF SHIPMENT TRUCKLOAD SERVICE WAS INTENDED. THIS IS CORROBORATED BY THE FACT THAT ORIGINALLY YOU BILLED FOR THIS SERVICE ON THE TRUCKLOAD BASIS.

IN YOUR LETTER REQUESTING REVIEW YOU STATE THAT IT IS A WIDELY ACCEPTED AND LONG STANDING PRACTICE OF THE GOVERNMENT TO ISSUE ITS OWN BILLS OF LADING AND THAT THEREFORE IT IS UNREASONABLE TO HOLD CARRIERS LIABLE FOR THE FAILURE TO HAVE THE PROPER NOTATIONS ENDORSED UPON THE BILLS OF LADING. IT SEEMS TO BE THE ACCEPTED PRACTICE OF LARGE BUSINESS ENTERPRISE, AS WELL AS OF THE GOVERNMENT, TO PREPARE THEIR OWN BILLS OF LADING. SEE DOMESTIC BILL OF LADING AND LIVESTOCK CONTRACTS, 172 I.C.C. 362, 364; EMERGENCY FREIGHT CHARGES, 1935, 208 I.C.C. 4, 51. THAT FACT, HOWEVER, DOES NOT RELIEVE THE MOTOR CARRIERS FROM THE DUTY IMPOSED ON THEM BY SECTIONS 20 (11) AND 219 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11) AND 319, OF ISSUING, AS DISTINGUISHED FROM PREPARING, APPROPRIATE BILLS OF LADING. WHEN BILLS OF LADING ARE PREPARED BY SHIPPERS, MOTOR CARRIERS HAVE THE OBLIGATION OF REFRAINING FROM EXECUTING THOSE WHICH LAWFULLY CANNOT BE COMPLIED WITH OR WHICH CONTAIN CONFLICTING PROVISIONS. SEE EXPOSITION COTTON MILLS V. SOUTHERN RY.CO., 234 I.C.C. 441, 442; SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY R.CO., 274 I.C.C. 245, 247. WHILE GOVERNMENT BILLS OF LADING ARE ESPECIALLY DESIGNED FOR USE BY THE GOVERNMENT, THERE IS NOTHING ON THEM WHICH RELIEVES CARRIERS, OR THE GOVERNMENT FROM OBSERVING THE CONDITIONS IMPOSED BY EXCLUSIVE USE OR SIMILAR RULES IN A TARIFF, EXCEPT AS TO DEPARTURES OR WAIVERS PROPERLY MADE THE SUBJECT OF AGREEMENT UNDER SECTIONS 22 AND 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 AND 317 (B). MOREOVER, ASIDE FROM THE FAILURE TO PROPERLY ANNOTATE THE BILL OF LADING, TARIFF ITEM 10020-E REQUIRES THAT THE FREIGHT BILL ALSO BE NOTED THAT EXCLUSIVE USE WAS ORDERED BY SHIPPER. THE MEMORANDUM COPY OF YOUR FREIGHT BILL NO. F992949, DATED MAY 7, 1949, DOES NOT CONTAIN SUCH A NOTATION.

YOU ALSO STATE THAT THE CONSIGNEE'S SIGNATURE ON THE BILL OF LADING CERTIFYING AS TO THE RECEIPT OF THE SHIPMENT PROVIDES SUFFICIENT PROOF THAT EXCLUSIVE-USE SERVICE WAS PERFORMED. THE CERTIFICATION TO WHICH YOU REFER MERELY RECITES WHAT PROPERTY WAS RECEIVED AT DESTINATION, THE CONDITION OF SUCH PROPERTY AND WHETHER DELIVERY WAS BY THE GOVERNMENT OR ITS AGENT. THIS CERTIFICATION DOES NOT INDICATE WHAT SERVICES WERE OR WERE NOT ACCORDED THE SHIPMENT.

FINALLY, YOU STATE THAT OUR DISALLOWANCE WAS CONTRARY TO SECTION 3065.10 OF OUR "GAO POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES" (5 GAO 3065.10) IN THAT "WHERE ACCESSORIAL OR SPECIAL SERVICES ARE ORDERED BUT WERE NOT FURNISHED, THE BILL OF LADING SHALL BE SO ANNOTATED" AND THAT SUCH A NOTATION WAS NOT INDICATED ON BILL NO. AF-9765056. IN THIS CASE THE QUESTION OF THAT NOTATION IS IRRELEVANT BECAUSE THE BILL OF LADING WAS NOT ANNOTATED TO INDICATE A REQUEST FOR EXCLUSIVE USE OF VEHICLE SERVICE.

AS SHOWN ON OUR STATEMENT OF EXCESS CHARGES DATED MARCH 16, 1960, WE FIND THAT THE APPLICABLE TRANSPORTATION CHARGES ON THIS SHIPMENT ARE $536.55, AND NOT $651.29, THE AMOUNT ORIGINALLY PAID TO YOU. OUR CHARGE BASIS IS DERIVED FROM A RATE OF $3.32 PER 100 POUNDS, WHICH IS PUBLISHED IN TARIFF NO. 504 TO APPLY ON TRUCKLOAD SHIPMENTS OF A COMMODITY DESCRIBED IN ITEM 77250 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF-I.C.C. NO. 1, AS "PERSONAL EFFECTS OF COMMISSIONED OR ENLISTED PERSONNEL OF THE UNITED STATES ARMY, AIR FORCE, NAVY OR MARINE CORPS, MOVING ON GOVERNMENT BILLS OF LADING," RELEASED AT THE LOWEST VALUATION, AND CARRYING A RATING OF CLASS 70 AND A MINIMUM WEIGHT OF 20,000 POUNDS. IN CONNECTION WITH THE RELEASED VALUATION OF THIS SHIPMENT, SEE CONDITION 5 ON THE BACK OF BILL OF LADING NO. AF-9765056.

OUR SETTLEMENT CERTIFICATE DATED MARCH 9, 1960, FILE NO. TK-678988, IS NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE, AND, ACCORDINGLY, IT IS SUSTAINED. THE $114.74, SHOWN AS OVERPAID ON OUR STATEMENT OF EXCESS CHARGES DATED MARCH 15, 1960, SHOULD BE PROMPTLY REFUNDED OR IT WILL BE COLLECTED WITHOUT FURTHER NOTICE TO YOU. SEE 49 U.S.C. 66.