B-142903, DEC. 12, 1961

B-142903, DEC. 12, 1961

TO T.I.M.E., INC.:

WE REFER TO YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT CERTIFICATE OF APRIL 27, 1960 (OUR CLAIM NO. TK-668182), DISALLOWING YOUR CLAIM; STATED ON SUPPLEMENTAL BILL NO. OC-701-4, FOR $384.50, AS TO WHICH WE LATER SOUGHT ADDITIONAL INFORMATION FROM THE DEPARTMENT OF THE AIR FORCE. THE AMOUNT CLAIMED REPRESENTS THE ADDITIONAL TRANSPORTATION CHARGES ALLEGEDLY DUE ON A TRUCKLOAD SHIPMENT OF A COMMODITY DESCRIBED ON GOVERNMENT BILL OF LADING NO. WX-8661998 AS "4 CANS ENGINES INTERNAL COMBUSTION NOIBN" AND RECEIVED BY THE LA GRANGE AND BC TRUCK LINES, THE ORIGIN CARRIER, FOR TRANSPORTATION FROM WARNER ROBINS, GEORGIA, TO EL PASO, TEXAS, DURING JANUARY 1952.

THE BILL OF LADING CONTAINS THIS NOTATION:

"RELEASED AT FULL VALUATION, LOWEST RATING PER ITEM 61244 NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 10 APPLICABLE

"CARRIER RESPONSIBLE FOR FULL VALUE OF ENGINES AT $197,308.00 TOTAL COST.'

IN OUR SETTLEMENT CERTIFICATE REFERENCE WAS MADE TO BENTON RAPID EXPRESS V. UNITED STATES, 171 F.SUPP. 868 (1959), AND YOU WERE INFORMED THAT THE BILL OF LADING NOTATION WAS CONSIDERED TO REFLECT AN AGREEMENT OF THE PARTIES, PERMISSIBLE UNDER SECTION 22 OF THE INTERSTATE COMMERCE COMMISSION ACT, 49 U.S.C. 22, THAT THE RATE TO BE CHARGED WAS LESS THAN THAT OTHERWISE APPLICABLE BY TARIFF. THE RATE USED IN OUR SETTLEMENT IS APPLICABLE TO TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES RELEASED AT LOWEST VALUE; HOWEVER, IN YOUR REQUEST FOR REVIEW, YOU CONTEND THAT A HIGHER RATE, APPLICABLE ON TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES RELEASED AT FULL VALUE, IS APPLICABLE TO THIS SHIPMENT BECAUSE YOU HAVE NO RECORD OF ANY SECTION 22-TYPE QUOTATION OFFERING THE GOVERNMENT THE LOWER RATE BASIS.

IN THE BENTON RAPID EXPRESS CASE, WHICH INVOLVED SHIPMENTS OF INTERNAL COMBUSTION ENGINES MOVING DURING THE YEARS 1949 THROUGH 1951, FROM WARNER ROBINS, GEORGIA, ON GOVERNMENT BILLS OF LADING CONTAINING NOTATIONS SUBSTANTIALLY SIMILAR TO THE NOTATION ON BILL OF LADING NO. WX-8661998, THE COURT OF CLAIMS FOUND 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, MATERIEL, 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, INCLUDING THE LA GRANGE AND BC TRUCK LINES, 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 MOTOR CARRIERS WITHOUT FORMAL REDUCED RATE TENDERS ON FILE WITH THE GOVERNMENT TO PARTICIPATE IN BUSINESS WHICH OTHERWISE WOULD HAVE MOVED VIA OTHER CARRIERS, PARTICULARLY THE RAILROADS.

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, IN EITHER SITUATION, SHIPMENTS WERE TO BE TRANSPORTED AT THE LOWEST RELEASED VALUATION.

THE BASIS USED IN DISALLOWING YOUR CLAIM IN OUR SETTLEMENT OF APRIL 27, 1960, IS CONSISTENT WITH THE HOLDING IN THE BENTON RAPID EXPRESS CASE AND, ACCORDINGLY, IT IS SUSTAINED.