B-144420, B-143633, FEB. 5, 1962

B-144420, B-143633, FEB. 5, 1962

TO BROWN EXPRESS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1961, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THE DECISIONS OF FEBRUARY 10, 1961, B- 144420, AND MARCH 23, 1961, B-143633. THESE DECISIONS SUSTAINED THE DISALLOWANCE OF YOUR CLAIMS ON BILLS NOS. 7911-B (BILL OF LADING N- 33940098), 7911-C (BILL OF LADING N-33940130), AND 7146-A (BILL OF LADING AF-8167549), FOR ADDITIONAL FREIGHT CHARGES ON TEXAS INTRASTATE SHIPMENTS OF INTERNAL COMBUSTION RADIAL CYLINDER AIRCRAFT ENGINES WHICH MOVED UNDER GOVERNMENT BILLS OF LADING WHICH BORE EITHER THE NOTATION ,RELEASED VALUATION NOT EXC $2.50 PER LB.' OR "RELEASED AT HIGHEST VALUE APPLICABLE TO LOWEST CLASSIFICATION RATING.'

YOU ALSO REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM ON BILLS NUMBERED 7993-B FOR $37.33 AND 7866-A FOR $20.80 FOR ADDITIONAL FREIGHT CHARGES ON OTHER SHIPMENTS WHICH MOVED UNDER CIRCUMSTANCES SIMILAR TO THOSE WHICH WERE THE SUBJECT OF OUR DECISIONS OF FEBRUARY 10, 1961, B 144420, AND MARCH 23, 1961, B-143633.

IN OUR PREVIOUS DECISIONS WE STATED THAT OUR INTERPRETATION OF THE PERTINENT TARIFF PROVISION WAS IN ACCORD WITH THE RULING OF THE INTERSTATE COMMERCE COMMISSION IN UPJOHN COMPANY V. PENNSYLVANIA R. CO., 306 I.C.C. 325, WHERE IT IS STATED THAT FROM A TRANSPORTATION STANDPOINT THE RELEASED AND THE UNRELEASED VALUE CLASSIFICATION RATINGS SHOULD BE CONSIDERED AS TWO SEPARATE AND DISTINCT ITEMS, AND THAT THE COMMODITY RATE, NOT SUBJECT TO A RELEASED VALUE PROVISION, SUPERSEDED ONLY THE CLASSIFICATION RATING WHICH WAS NOT SUBJECT TO A RELEASED VALUE PROVISION. ITEM 4790 OF SOUTHWESTERN MOTOR FREIGHT BUREAU TARIFF NO. 25-F, MF-I.C.C. NO. 274- R.C.T. NO. 29, WHICH YOU CONTEND IS FOR APPLICATION, DOES NOT COVER RELEASED SHIPMENTS. THEREFORE, SINCE THE SUBJECT SHIPMENTS WERE RELEASED, WE APPLIED THE RELEASED RATINGS AUTHORIZED IN ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 14, MF-I.C.C. NO. 1-R.C.T. NO. 7, IN COMPUTING THE APPLICABLE CHARGES.

YOU STATE THAT "THE DECISIONS OF THE INTERSTATE COMMERCE COMMISSION MAY NOT BE USED AS A YARDSTICK IN THE DETERMINATION OF ISSUES INVOLVING INTRASTATE TRAFFIC.' YOU SUPPORT YOUR CONTENTION THAT THE UNRELEASED RATINGS IN ITEM 4790 OF TARIFF 25-F ARE FOR APPLICATION, WITH A COPY OF A LETTER FROM C. R. MCNAMEE, DIRECTOR, RATE DIVISION, RAILROAD COMMISSION OF TEXAS. MR. MCNAMEE STATES THAT THE RULING IN THE UPJOHN CASE HAS NO BEARING ON INTRASTATE TRAFFIC AND THAT THE RATINGS IN ITEM 4790 ARE NOT SPECIFICALLY RESTRICTED TO APPLY ONLY WHEN NO RELEASED VALUATION HAS BEEN DECLARED BY THE SHIPPER AND WOULD, THEREFORE, APPLY WHETHER OR NOT ANY VALUATION IS DECLARED.

THE INTERPRETATION BY MR. MCNAMEE REPRESENTS A NEGATIVE APPROACH TO THE MATTER, APPLYING THE DOCTRINE THAT "SILENCE GIVES CONSENT.' ON THE OTHER HAND, SINCE THE RELEASED AND THE UNRELEASED RATINGS ARE PUBLISHED IN SEPARATE ITEMS IN THE CLASSIFICATION AND ONLY UNRELEASED RATINGS ARE PUBLISHED IN ITEM 4790 OF TARIFF 25-F, A MORE LOGICAL APPROACH TO THE ACCOMPLISHMENT OF THE RESULT URGED BY MR. MCNAME--- IF THE CARRIERS DESIRED SUCH RESULT--- WOULD BE ONE REQUIRING AN AFFIRMATIVE PROVISION IN ITEM 4790 THAT SUCH UNRELEASED RATING WOULD BE DEEMED TO REMOVE BOTH THE RELEASED AND THE UNRELEASED RATINGS FROM THE CLASSIFICATION. THE RULE APPLIED BY MR. MCNAMEE, THAT BECAUSE THE RATINGS IN ITEM 4790 WERE "NOT SPECIFICALLY RESTRICTED TO APPLY ONLY WHEN NO RELEASED VALUATION HAD BEEN DECLARED" THEY WOULD APPLY "WHETHER OR NOT ANY VALUATION IS DECLARED," WOULD BE INAPPLICABLE AND, BY ANALOGY, PROHIBITED BY THE RULE IN CONTRACT LAW THAT SILENCE WILL NOT AMOUNT TO THE ACCEPTANCE OF AN OFFER UNLESS IT IS EXPRESSLY SO AGREED. ANDERSON V. GEORGETOWN COLLEGE, 286 S.W.2D 78, 79 (1955); AHERN V. SOUTH BUFFALO RY.CO., 104 N.E.2D 625 (1949); COHEN V. JOHNSON, 91 F.SUPP. 231 (1950).

MR. MCNAMEE'S LETTER APPARENTLY REPRESENTS MERELY HIS INFORMAL OPINION, MADE IN RESPONSE TO A QUESTION PRESENTED BY YOU. IT DOES NOT APPEAR THAT THE QUESTION WAS CONSIDERED BY THE FULL BOARD OF THE RAILROAD COMMISSION OF TEXAS IN A FORMAL PROCEEDING. NEITHER WAS THERE ARGUMENT BY PARTIES, AT LEAST THERE WAS NONE REPRESENTING THE VIEW TAKEN BY THIS OFFICE. THEREFORE IT IS BELIEVED THAT THE HOLDING OF THE INTERSTATE COMMERCE COMMISSION IN THE UPJOHN CASE WOULD BE OF GREATER WEIGHT IN THE DETERMINATION OF THE ISSUE, REPRESENTING AS IT DOES THE DECISION OF A DULY CONSTITUTED COMPETENT BODY OF EXPERTS RENDERED AT A FORMAL PROCEEDING, AT WHICH THE FACTS AND ARGUMENTS IN CONNECTION WITH A SIMILAR SITUATION WERE CONSIDERED.

OUR OFFICE, IN THE DISCHARGE OF THE DUTY IMPOSED UPON IT BY THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, IS GOVERNED IN THE AUDIT OF TRANSPORTATION ACCOUNTS BY DULY FILED AND PUBLISHED TARIFF RATES OR SPECIAL QUOTATIONS, WHERE APPLICABLE. IN THE PRESENT CASE IT IT IS OUR DUTY TO DECIDE WHICH OF THE CONTESTED RATINGS IS APPLICABLE IN THE COMPUTATION OF THE FREIGHT CHARGES. WE HAVE DETERMINED THAT THE APPLICABLE RATING IS THE RELEASED CLASSIFICATION RATING AND NOT THE UNRELEASED COMMODITY OR EXCEPTIONS RATING, AND HAVE CITED THE RULING IN THE UPJOHN CASE AND OTHERS AS BEING PERSUASIVE IN SUPPORT OF OUR DETERMINATION AS TO WHICH RATING IS APPLICABLE. MOREOVER, IN ANY CASE INVOLVING CLAIMS OF DOUBTFUL VALIDITY THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE REQUIRED TO RESOLVE THE DOUBT IN FAVOR OF THE GOVERNMENT. IN CHARLES V. UNITED STATES, 19 CT.CL. 316, 319, THE COURT SAID:

"WHEN, IN THE COURSE OF THE EXAMINATION OF ACCOUNTS IN THE DEPARTMENTS, SUSPICIONS ARE AROUSED OR DOUBTS ARE ENTERTAINED AS TO THE VALIDITY OF THE DEMANDS OF CLAIMANTS, THE PARTIES MAY BE SENT TO THIS COURT TO PROVE THEIR CASES UNDER THE RULES AND FORMS OF LAW, UPON LEGAL AND COMPETENT EVIDENCE, OR THEIR DEMANDS MAY BE REJECTED ALTOGETHER, LEAVING THE CLAIMANTS TO PROSECUTE THEM HERE UPON THEIR VOLUNTARY PETITIONS, IF THEY SO DESIRE. THAT IS THE MAIN PROTECTION WHICH THE ACCOUNTING OFFICERS CAN SECURE FOR THEMSELVES AND FOR THE GOVERNMENT IN THE CASE OF CLAIMS OF DOUBTFUL LIABILITY IN FACT OR IN LAW * * *.'

SINCE IT IS OUR VIEW THAT THE CONCLUSION REACHED IN THE UPJOHN DECISION IS EQUALLY APPLICABLE IN THIS CASE AND PRECLUDES THE APPLICATION OF ITEM 4790 TO RELEASED VALUATION SHIPMENTS--- AND YOU HAVE FURNISHED NO COMPETENT EVIDENCE TO THE CONTRARY NOT PREVIOUSLY CONSIDERED--- WE PERCEIVE NO BASIS, ON THE PRESENT RECORD, FOR MODIFYING OUR PRIOR DECISIONS.

HOWEVER, THE RELEASED VALUATION ISSUE IS PENDING IN T.I.M.E., INC., V. UNITED STATES, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, CIVIL ACTION NOS. 2628, 2629, 2637 AND 2638, AND IN STRICKLAND TRANSPORTATION CO. V. UNITED STATES, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, CIVIL ACTION NO. 8662. IN THE EVENT THE FINAL JUDICIAL DECISION IN THESE CASES IS ADVERSE TO THE UNITED STATES AND YOU FEEL THAT, BASED UPON SUCH FINAL DECISIONS, YOUR CLAIMS ARE PROPERLY FOR ALLOWANCE, WE WILL, UPON YOUR REQUEST, RECONSIDER OUR CONCLUSION HEREIN.