B-146615, NOV. 1, 1961

B-146615, NOV. 1, 1961

TO MR. JERRY C. GRIGGS, RECEIVER, KILGO MOTOR FREIGHT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1961, WITH ENCLOSURE, FILE 0-191-9, ACKNOWLEDGED AUGUST 14, 1961, IN WHICH YOU REQUEST REVIEW OF SETTLEMENT DATED JULY 31, 1961, DISALLOWING THE CLAIM OF KILGO MOTOR FREIGHT, INC., FOR ADDITIONAL CHARGES OF $99 PRESENTED ON ITS SUPPLEMENTAL BILL NO. 60-10A FOR THE TRANSPORTATION OF 14 BOXES OF "AMMO FOR CANNON W/O PROJECTILES (CARTRIDGES CANNON BLANK IGNITER ROCKET MTR TYPE MA-1)" FROM DOVER AIR FORCE BASE, DELAWARE, TO RAILWAY EXPRESS AGENCY, PHILADELPHIA, PENNSYLVANIA, UNDER GOVERNMENT BILL OF LADING AF- 8963427 DATED FEBRUARY 18, 1959.

FOR THE TRANSPORTATION SERVICE YOU ORIGINALLY BILLED ON THE BASIS OF EXPEDITED SERVICE, AND WERE PAID $172.50. THIS CHARGE WAS COMPUTED UNDER THE RATES ESTABLISHED FOR EXPEDITED SERVICE UNDER RULE 9OF THE MIDDLE ATLANTIC CONFERENCE FREIGHT TARIFF 10-M, MF-I.C.C. NO. 870, SUPPLEMENT 55. IN OUR AUDIT IT WAS DETERMINED THAT THE APPLICABLE CHARGES FOR THIS SHIPMENT WERE $73.50, COMPUTED UPON THE BASIS OF $1.47 PER 100 POUNDS ON 5,000 POUNDS MINIMUM WEIGHT PROVISION OF RULE 100K-2 OF MIDDLE ATLANTIC CONFERENCE TARIFF NO. 10-M AND MIDDLE ATLANTIC CONFERENCE TARIFF 7-G, MF- I.C.C. NO. A-877 BECAUSE THE BILL OF LADING WAS NOT PROPERLY ENDORSED IN COMPLIANCE WITH RULE 9 OF FREIGHT TARIFF 10-M, CITED ABOVE. UPON YOUR FAILURE TO REFUND THE OVERCHARGE OF $99, THIS AMOUNT WAS DEDUCTED FROM MONIES OTHERWISE DUE THE CARRIER FOR OTHER SERVICES. SUBSEQUENTLY, ON DECEMBER 31, 1960, YOU PRESENTED SUPPLEMENTAL BILL NO. 60-10A, AS A CLAIM FOR THE $99 DEDUCTED IN JUNE 1960. THIS CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JULY 31, 1961.

YOU URGE NOW THAT EXPEDITED SERVICE WAS REQUESTED AND PERFORMED FOR THIS SHIPMENT AS EVIDENCED BY A LETTER DATED AUGUST 1, 1960, WRITTEN BY DOROTHY A. KUEHN, FIRST LIEUTENANT OF THE UNITED STATES AIR FORCE AND COMMERCIAL TRANSPORTATION OFFICER OF THE 1607TH AIR TERMINAL SQUADRON, DOVER AIR FORCE BASE, DELAWARE, AND THAT THE TARIFF NOTATION REQUIREMENT OF RULE 9 WAS INADVERTENTLY OMITTED FROM THE BILL OF LADING AT THE TIME OF PREPARATION.

THE APPLICABLE TARIFF REQUIREMENTS AS SET OUT IN RULE 9 OF THE MIDDLE ATLANTIC CONFERENCE FREIGHT TARIFF NO. 10-M ARE IN PART AS FOLLOWS:

"WHEN UPON REQUEST OF CONSIGNOR OR CONSIGNEE, A SHIPMENT IS GIVEN SPECIAL EXPEDITED SERVICE BEYOND THE NORMAL SERVICE OF THE CARRIER OR WHEN A VEHICLE IS USED EXCLUSIVELY FOR SUCH SHIPMENT IN ORDER TO EXPEDITE DELIVERY, IT WILL BE SUBJECT TO THE FOLLOWING RULES AND CHARGES:

"/C) (1) WHEN A SHIPMENT IS TENDERED UNDER THIS RULE, THE BILL OF LADING AND SHIPPING ORDER MUST BE ENDORSED "SHIPMENT ACCEPTED AND CHARGED ACCORDING TO RULE 9 OF TARIFF 10-M, MF-I.C.C. NO. A-870 (D), MIDDLE ATLANTIC CONFERENCE, AGENT.'

(2) THE FREIGHT BILL ISSUED FOR EACH SHIPMENT MOVING UNDER THIS RULE, AND FOR WHICH THE BILL OF LADING AND SHIPPING ORDER HAVE BEEN PROPERLY ENDORSED, MUST CARRY A STATEMENT TO THE EFFECT THAT THE PROPER ENDORSEMENT HAS BEEN SHOWN ON THE BILL OF LADING AND SHIPPING ORDER.'

IT IS NOTED THAT RULE 9 PROVIDES WHERE SHIPMENT IS TENDERED UNDER THIS RULE A TATION,"SHIPMENT ACCEPTED AND CHARGED ACCORDING TO RULE 9 OF TARIFF 10-M, MF-I.C.C. NO. A-870 (D), MIDDLE ATLANTIC CONFERENCE, AGENT," MUST APPEAR ON THE BILL OF LADING. THIS NOTATION WAS NOT MADE ON BILL OF LADING NO. AF-8963427. FURTHERMORE, THE FREIGHT BILL DID NOT CONTAIN A STATEMENT TO SHOW THAT THE BILL OF LADING HAD BEEN PROPERLY ENDORSED TO COMPLY WITH THE TARIFF REQUIREMENT. MOREOVER, THERE IS NO INDICATION OF RECORD THAT THE BILL OF LADING AND THE FREIGHT BILL WERE NOT AVAILABLE FOR THE PROPER ENDORSEMENTS AT THE TIME THIS SHIPMENT WAS TENDERED. THE ATTEMPT TO CORRECT THE OMISSION ON THE BILL OF LADING BY A LETTER WRITTEN BY THE ADMINISTRATIVE OFFICE ON AUGUST 1, 1960, APPROXIMATELY EIGHTEEN MONTHS AFTER SHIPMENT WAS RECEIVED BY THE CARRIER, IS NOT ACCEPTABLE SINCE A TARIFF REQUIREMENT CAN NOT BE WAIVED.

IN THE CASE OF GUS BLASS COMPANY V. POWELL BROS, TRUCK LINE, 53 M.C.C. 603, THE INTERSTATE COMMERCE COMMISSION HELD, IN EFFECT, THAT THE OMISSION OF THE BILL OF LADING ENDORSEMENT REQUIRED BY THE TARIFF WAS A DEFECT FATAL TO THE APPLICATION OF CHARGES BASED ON AN EXCLUSIVE USE OF VEHICLE RULE, EVEN THOUGH EXCLUSIVE USE OF VEHICLE SERVICE ACTUALLY WAS REQUESTED AND PERFORMED. THIS DECISION WAS BASED ON 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 COMPANY OF NEW JERSEY, 216 I.C.C. 105 AND SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CARRIER CASES 710.

ON THE BASIS OF THE RECORD, THE ONLY REFERENCE TO EXTRA SERVICE ON THE BILL OF LADING IS ,PLEASE EXPEDITE.' THIS NOTATION DOES NOT SUBSTANTIALLY MEET THE PRESCRIBED FORM OF THE ENDORSEMENT REQUIRED BY RULE 9 OF THE TARIFF, THEREFORE, OUR SETTLEMENT OF JULY 31, 1961, DISALLOWING YOUR CLAIM WAS PROPER AND IS HEREBY SUSTAINED.