B-145627, DEC. 8, 1961

B-145627: Dec 8, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 11. FOR THE SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES TOTALING $452.67. THE APPLICABLE CHARGES WERE FOUND TO BE $351.59. THAT AMOUNT WAS SUBSEQUENTLY DEDUCTED FROM PAYMENTS OTHERWISE DUE YOUR COMPANY. FROM WHICH THE RATE APPLIED IN THE AUDIT WAS DERIVED. CANCELLATION WAS ALLEGEDLY EFFECTED BY YOUR TENDER NO. 54. A COPY OF WHICH YOU SAY WAS RECEIVED BY THE INTERSTATE COMMERCE COMMISSION ON AUGUST 28. YOU SAY THAT ADDITIONAL COPIES OF THE CANCELLING TENDER WERE IN A ROUTINE MANNER LODGED WITH EACH GOVERNMENT AGENCY CONCERNED. WHILE WE HAVE VERIFIED THE FACT THAT A COPY OF THE TENDER NO. 54 IS ON FILE AT THE INTERSTATE COMMERCE COMMISSION.

B-145627, DEC. 8, 1961

TO POWELL TRANSPORTATION COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 11, 1961, SERIAL 15, IN WHICH YOU REQUESTED A REVIEW OF THE SETTLEMENT DISALLOWING YOUR CLAIM FOR $101.08, ON YOUR SUPPLEMENTAL BILL NO. 9 12691-A, AS ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A SHIPMENT OF PRINTED FORMS FROM NEW ROCHELLE, NEW YORK, TO WASHINGTON, D.C., UNDER GOVERNMENT BILL OF LADING AF-7093896, DATED JANUARY 2, 1959.

FOR THE SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES TOTALING $452.67, COMPUTED ON THE BASIS OF A RATE OF $1.03 PER 100 POUNDS. UPON OUR AUDIT OF THE PAYMENT VOUCHER, THE APPLICABLE CHARGES WERE FOUND TO BE $351.59, COMPUTED ON THE BASIS OF THE TRUCKLOAD RATE OF 80 CENTS PER 100 POUNDS AT THE ACTUAL WEIGHT OF 43,949 POUNDS, AS AUTHORIZED IN YOUR SECTION 22 TENDER NO. 4-3-57, EFFECTIVE MARCH 12, 1957. UPON YOUR FAILURE TO MAKE REFUND OF THE OVERCHARGE OF $101.08, THAT AMOUNT WAS SUBSEQUENTLY DEDUCTED FROM PAYMENTS OTHERWISE DUE YOUR COMPANY.

IN YOUR LETTER OF APRIL 11, 1961, YOU STATE THAT YOUR TENDER NO. 4-3 57, FROM WHICH THE RATE APPLIED IN THE AUDIT WAS DERIVED, HAD ALREADY BEEN CANCELLED AT THE TIME THE INSTANT SHIPMENT MOVED. CANCELLATION WAS ALLEGEDLY EFFECTED BY YOUR TENDER NO. 54, A COPY OF WHICH YOU SAY WAS RECEIVED BY THE INTERSTATE COMMERCE COMMISSION ON AUGUST 28, 1958. YOU SAY THAT ADDITIONAL COPIES OF THE CANCELLING TENDER WERE IN A ROUTINE MANNER LODGED WITH EACH GOVERNMENT AGENCY CONCERNED.

WHILE WE HAVE VERIFIED THE FACT THAT A COPY OF THE TENDER NO. 54 IS ON FILE AT THE INTERSTATE COMMERCE COMMISSION, THE ADMINISTRATIVE AGENCIES CONCERNED, THE GOVERNMENT PRINTING OFFICE, THE AGENCY THROUGH WHICH THE SHIPMENT WAS ARRANGED, THE GENERAL SERVICES ADMINISTRATION, AND THE MILITARY TRAFFIC MANAGEMENT AGENCY HAVE REPORTED THAT YOUR TENDER NO. 54 WAS NOT RECEIVED BY THEM. THESE REPORTS ARE CORROBORATED BY THE FACT THAT OUR OWN FILES DO NOT CONTAIN A COPY OF THE QUOTATION, EVEN THOUGH OUR REGULATIONS REQUIRED ALL GOVERNMENT AGENCIES TO TRANSMIT COPIES OF ALL SPECIAL RATE TENDERS TO OUR OFFICE, AND, PURSUANT TO SUCH REGULATIONS, WE DID RECEIVE COPIES OF YOUR TENDERS NO. 53 AND 55. MOREOVER, THE BILL OF LADING HERE INVOLVED REFERS NOT ONLY TO TENDER NO. 4-3-57, BUT ALSO TO THE RATE OF 80 CENTS PER 100 POUNDS NAMED THEREIN. NOTWITHSTANDING THE ALLEGED EARLIER CANCELLATION OF SUCH TENDER, YOUR COMPANY SIGNED, AND THEREBY ISSUED, THE BILL OF LADING CONTAINING SUCH REFERENCES AND TRANSPORTED THE SHIPMENT TO DESTINATION WITHOUT TAKING ANY EXCEPTION TO THE APPLICABILITY OF THE TENDER AND RATE NOTED ON THE BILL OF LADING.

THE GENERAL RULE IS WELL ESTABLISHED THAT REVOCATION OF AN OFFER IS NOT EFFECTIVE UNTIL ACTUALLY COMMUNICATED. TAYLOE V. MERCHANTS' FIRE INSURANCE CO., 50 U.S. 390; PATRICK V. BOWMAN, 149 U.S. 411; WELD V. VICTORY MANUFACTURING CO., 205 FED. 770; BRAVER V. SHAW, 46 N.E. 617; FARMERS' HANDY WAGON CO. V. NEWCOMB, 159 N.W. 152; AND KEMPNER V. COHN, 15 S.W. 869.

WHILE UNDER THE PROVISIONS OF 49 U.S.C. 22 (2) THE FILING OF SPECIAL TENDERS WITH THE INTERSTATE COMMERCE COMMISSION IS REQUIRED, WE FIND NOTHING IN THE ACT OF AUGUST 31, 1957, 71 STAT. 564, ADDING SUBSECTION (2) TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, THAT CAN IN ANY WAY BE CONSTRUED AS DISPENSING WITH THE NECESSITY THAT CANCELLATIONS OF SPECIAL TENDERS BE ACTUALLY COMMUNICATED TO THE OFFERREES UNDER SUCH TENDERS. THE ABSENCE OF ANY EVIDENCE IN THE PRESENT RECORD THAT YOUR TENDER NO. 54, PURPORTING TO CANCEL TENDER NO. 4-3-57, ACTUALLY WAS RECEIVED BY ANY OF THE ADMINISTRATIVE OFFICES MENTIONED HEREINABOVE, IT IS CONCLUDED THAT REVOCATION OF THE LATTER TENDER HAD NOT BEEN EFFECTUATED AT THE TIME THE INSTANT SHIPMENT WAS TENDERED AND ACCEPTED, AND THAT THE RATES CONTAINED THEREIN (AND NOTED ON THE BILL OF LADING) ARE THE APPLICABLE RATES ON THE INSTANT SHIPMENT.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 31, 1961, DISALLOWING YOUR CLAIM FOR ADDITIONAL CHARGES FOR THE TRANSPORTATION OF THE SHIPMENT HERE INVOLVED WAS CORRECT, AND IS HEREBY SUSTAINED.