B-148996, NOV. 9, 1962

B-148996: Nov 9, 1962

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INC.: REFERENCE IS MADE TO YOUR LETTERS OF MAY 17. THE FOLLOWING NOTATION APPEARS ON THE FACE OF THE BILL OF LADING BELOW SUCH DESCRIPTION: "CLASS "A" EXPLOSIVE "THIS IS TO CERTIFY THAT THE ABOVE NAMED ARTICLES ARE PROPERLY DESCRIBED. ARE PACKED AND MARKED AND ARE IN PROPER CONDITION FOR TRANSPORTATION ACCORDING TO THE REGULATIONS PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION. "EST CHGS $5.02" FOR THE SERVICES INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID $731. AT THE OUTSET IT SHOULD BE OBSERVED THAT ITEM 720 PROVIDES THAT THE MINIMUM CHARGE ON SHIPMENTS OF CLASS A OR CLASS B EXPLOSIVES WILL BE THE CHARGE FOR 7. ADVISED THE MILITARY TRAFFIC MANAGEMENT AGENCY THAT THE COMMODITY SHIPPED "IS NOT CLASS A EXPLOSIVE BUT CLASS C.'.

B-148996, NOV. 9, 1962

TO THE STRICKLAND TRANSPORTATION COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 17, AND OCTOBER 17, 1962, REQUESTING REVIEW OF THE ACTION TAKEN ON YOUR BILL NO. 7480-A FOR $723.37 ADDITIONAL TRANSPORTATION CHARGES ON A SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING AF-7113804 FROM LAUGHLIN AIR FORCE BASE, DEL RIO, TEXAS, TO FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA, DURING OCTOBER 1957.

THE SHIPMENT CONSISTED OF A WOODEN BOX WEIGHING 44 POUNDS OF A COMMODITY DESCRIBED ON THE BILL OF LADING AS "EXPLOSIVES HIGH NOI (INITIATOR).' THE FOLLOWING NOTATION APPEARS ON THE FACE OF THE BILL OF LADING BELOW SUCH DESCRIPTION:

"CLASS "A" EXPLOSIVE

"THIS IS TO CERTIFY THAT THE ABOVE NAMED ARTICLES ARE PROPERLY DESCRIBED, AND ARE PACKED AND MARKED AND ARE IN PROPER CONDITION FOR TRANSPORTATION ACCORDING TO THE REGULATIONS PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION.

"EST CHGS $5.02"

FOR THE SERVICES INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID $731, COMPUTED ON THE BASIS OF THE CLASS 100 RATE OF $7.31 PER 100 POUNDS BASED ON A MINIMUM WEIGHT OF 10,000 POUNDS, SAID TO BE APPLICABLE ON CLASS A OR CLASS B EXPLOSIVES CITING ITEM 720 OF EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF NO. 32-A, MF-I.C.C. NO. A 139. AT THE OUTSET IT SHOULD BE OBSERVED THAT ITEM 720 PROVIDES THAT THE MINIMUM CHARGE ON SHIPMENTS OF CLASS A OR CLASS B EXPLOSIVES WILL BE THE CHARGE FOR 7,500 POUNDS AT THE L.T.L. OR A.Q. RATE APPLYING TO THE HIGHEST RATED CLASS A OR CLASS B EXPLOSIVES IN THE SHIPMENT, EXCEPT THAT THE MINIMUM CHARGE SHALL NOT EXCEED THE TRUCKLOAD OR VOLUME CHARGES ON A LIKE SHIPMENT.

THE RECORD CONTAINS CORRESPONDENCE BETWEEN THE SOUTHWESTERN REGIONAL OFFICE OF THE THEN MILITARY TRAFFIC MANAGEMENT AGENCY AND THE SHIPPER ATTEMPTING TO ASCERTAIN THE CHARACTER OF THE COMMODITY SHIPPED. IN A THIRD INDORSEMENT DATED MARCH 7, 1958, THE SHIPPER, LAUGHLIN AIR FORCE BASE, ADVISED THE MILITARY TRAFFIC MANAGEMENT AGENCY THAT THE COMMODITY SHIPPED "IS NOT CLASS A EXPLOSIVE BUT CLASS C.' THEREAFTER, DETAILED INFORMATION WAS REQUESTED AS TO THE DESCRIPTION AND CLASS OF THE COMMODITY AS PUBLISHED IN H. A. CAMPBELL'S TARIFF NO. 10, THE ITEM NUMBER AND FREIGHT DESCRIPTION AS SHOWN IN NATIONAL MOTOR FREIGHT CLASSIFICATION A-3 AND THE CATALOG DESCRIPTION, INCLUDING THE STOCK NUMBER. IN RESPONSE, BY INDORSEMENT DATED APRIL 1, 1958, THE SHIPPER ADVISED THAT THE SHIPMENT, CONSISTED OF SMALL ARMS AMMUNITION (UNDER CAMPBELL'S TARIFF), DESCRIBED AS CARTRIDGES SMALL ARMS, BLANK OR LOADED IN ITEM 3880 OF THE CLASSIFICATION AND THAT THE STOCK CATALOG DESCRIPTION IS INITIATOR, AIRCRAFT JETTISON SYSTEM, M-5 WITH CARTRIDGE, NO. 1375-028-6115A-M692. BASED UPON THIS INFORMATION, IN OUR AUDIT, WE COMPUTED THE CHARGES AS FOR A CLASS C EXPLOSIVE ON THE ACTUAL WEIGHT OF 44 POUNDS, SUBJECT TO A MINIMUM CHARGE OF $7.63 PER SHIPMENT, AS PROVIDED IN ITEM 710 OF EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFF 32-A, MF-I.C.C. A-139. ON THIS BASIS, IT WAS DETERMINED THAT THE OVERCHARGE ON THIS SHIPMENT WAS $723.37 AND UPON YOUR FAILURE TO REFUND THIS OVERCHARGE IN ACCORDANCE WITH OUR NOTICE OF OVERCHARGE, FORM 1003, DATED JANUARY 8, 1959, THE AMOUNT OF $723.37 WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU.

BY YOUR SUPPLEMENTAL BILL NO. 7480-A YOU RECLAIMED THE AMOUNT OF THE DEDUCTION, AND SUCH CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED APRIL 25, 1962. YOU TAKE THE POSITION THAT SINCE YOU ACCEPTED THE SHIPMENT AS CLASS A EXPLOSIVES AND MOVED IT AS SUCH, OBSERVING ALL REQUIREMENTS AND RESTRICTIONS APPLICABLE TO A SHIPMENT OF THAT NATURE, THEREBY INCURRING CONSIDERABLE ADDITIONAL OPERATING EXPENSE, THE GOVERNMENT IS PRECLUDED FROM CHANGING THE DESCRIPTION OF THE COMMODITY SHIPPED AFTER THE MOVEMENT WAS COMPLETED. MOREOVER, IN A LETTER DATED JUNE 30, 1960, YOU ASSERT THAT "THERE WAS NO HINT OR CLUE BY WHICH THE INTERESTED CARRIERS MIGHT BE BROUGHT TO BELIEVE THAT THE CORRECT CLASSIFICATION OF THIS SHIPMENT WAS OTHER THAN THAT SHOWN ON THE GOVERNMENT BILL OF LADING.'

THE CERTIFICATE ON THE BILL OF LADING QUOTED ABOVE IS IDENTICAL TO THAT PRESCRIBED IN 49 C.F.R. 73.430 (A) BY THE INTERSTATE COMMERCE COMMISSION PURSUANT TO 18 U.S.C. 835 TO MINIMIZE DANGERS TO LIFE AND PROPERTY IN SHIPMENTS WITHIN THE LIMITS OF THE JURISDICTION OF THE UNITED STATES OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES AND WHILE PENALTIES ARE PROVIDED THEREIN FOR KNOWINGLY VIOLATING SUCH REGULATIONS, THE RATES APPLICABLE TO THE TRANSPORTATION--- THOSE FOR THE COMMODITY ACTUALLY SHIPPED--- ARE NOT AFFECTED THEREBY.

RESPECTING YOUR ASSERTION THAT "THERE WAS NO HINT OR CLUE" BY WHICH AN INTERESTED CARRIER MIGHT BE BROUGHT TO BELIEVE THAT THE COMMODITY DESCRIPTION ON THE BILL OF LADING WAS NOT ACCURATE, YOU WILL NOTE THAT THE CERTIFICATE TO WHICH YOU REFER IS FOLLOWED BY THE NOTATION "EST CHGS $5.02" (ESTIMATED CHARGES $5.02). IT IS BELIEVED THIS NOTATION REGARDING ESTIMATED CHARGES WOULD HAVE WARRANTED A CARRIER RAISING A QUESTION AS TO THE COMMODITY DESCRIPTION OR THE TRANSPORTATION SERVICE CONTEMPLATED BEFORE UNDERTAKING THE MOVEMENT AS ONE CONSISTING SOLELY OF A 44 POUND BOX OF CLASS A EXPLOSIVES.

THE INTERSTATE COMMERCE COMMISSION HAS CONSISTENTLY HELD THAT THE BILL OF LADING DESCRIPTION IS NOT CONTROLLING. THE IMPORTANT FACT IS WHAT WAS SHIPPED, NOT WHAT WAS DESCRIBED ON THE BILL OF LADING. PENN FACING MILLS CO. V. ANN ARBOR RAILROAD CO., 182 I.C.C. 614; FREIGHT TRANSPORTATION ENGINEERS, INC. V. SOUTHERN TIER TRUCKING CO., 48 M.C.C. 372. SEE ALSO UNITED WELDING CO. V. BALTIMORE AND OHIO RAILROAD CO., 196 I.C.C. 79; NEW YORK CENTRAL RAILROAD CO. V. GOLDBERG, 250 U.S. 85; GASSMAN V. NEW YORK CENTRAL RAILROAD CO., 201 N.Y.S. 740, AND OLD DOMINION S.S.CC. V. BLAKEMAN, 105 S.E. 752. THE PRESUMPTION THAT A BILL OF LADING CORRECTLY DESCRIBES THE ARTICLE TENDERED IS NOT CONCLUSIVE. M. A. BELL CO. V. ANN ARBOR RAILROAD CO., 174 I.C.C. 300. FURTHER, THE INTERSTATE COMMERCE COMMISSION HAS FOUND ON NUMEROUS OCCASIONS THAT THE CHARACTER OF THE COMMODITIES SHIPPED RATHER THAN THE INCOMPLETE DESCRIPTION ON THE SHIPPING DOCUMENT IS CONTROLLING IN DETERMINING THE APPLICABLE RATE. GRAVER CORP. V. SOUTHERN RAILWAY CO., 156 I.C.C. 619; SCHETKY EQUIPMENT CORP. V. NATIONAL CARLOADING CORP., 291 I.C.C. 192. IN FEDDERS-QUIGAN CORP. V. LONG TRANSPORTATION CO., 64 M.C.C. 581, THE COMMISSION RULED AT PAGES 586- 587---

"* * * THERE IS NO LEGAL BASIS FOR CHARGING RATES ON THE ARTICLE OTHER THAN THAT EMBRACED IN THE CLASSIFICATION DESCRIPTION. UNDER SECTION 217 (B) OF THE ACT (49 U.S.C. 317 (B) (, THE DEFENDANTS ARE PROHIBITED FROM DEMANDING, COLLECTING OR RECEIVING COMPENSATION AT RATES OTHER THAN THE RATES CONTAINED IN THEIR TARIFFS ON THE ARTICLE ACTUALLY SHIPPED. NEITHER MISUNDERSTANDINGS NOR AGREEMENTS AMONG SHIPPERS OR RECEIVERS AND CARRIERS CAN AFFECT THESE STATUTORY PROVISIONS WHICH OBLIGATE THE CARRIERS TO COLLECT AND THE SHIPPERS OR RECEIVERS TO PAY AMOUNTS NO DIFFERENT THAN THE APPLICABLE RATES.'

IN PRESENTING YOUR SUPPLEMENTAL BILL AND IN REQUESTING REVIEW OF THE ACTION TAKEN THEREON YOU FAIL TO MAKE REFERENCE OR CITE ANY AUTHORITATIVE BASIS TO DEVIATE FROM THESE RULINGS OF THE INTERSTATE COMMERCE COMMISSION OR OTHERWISE ESTABLISH A LEGAL BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM. IN THE PERFORMANCE OF THE DUTIES IMPOSED BY THE BUDGET AND ACCOUNTING ACT OF 1921, AS AMENDED, 31 U.S.C. 71, THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE BOUND TO SCRUTINIZE ALL CLAIMS AND ACCOUNTS WITH GREAT CARE AND TO REJECT, IN WHOLE OR IN PART, ANY CLAIM AS TO WHICH A QUESTION EXISTS CONCERNING THE LEGAL LIABILITY OF THE UNITED STATES, OR, BY AUTHORITY OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, TO RECOVER BY SETOFF ANY DOUBTFUL PAYMENT WHICH HAS BEEN MADE FOR TRANSPORTATION SERVICES AND THE BURDEN IS ON THE CLAIMANT TO PRESENT SUFFICIENT EVIDENCE AND/OR AUTHORITY TO SUPPORT HIS CLAIM. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316; LONGWILL V. UNITED STATES, 17 CT.CL. 288; 18 COMP. GEN. 199, 200; 17 COMP. GEN. 865, 870; 15 COMP. GEN. 466, 470. THESE RULINGS WERE RECENTLY CONFIRMED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO., 355 U.S. 253. SEE ALSO CENTRAL OF GEORGIA RAILWAY CO. V. UNITED STATES, COURT OF CLAIMS NO. 316-57, DECIDED APRIL 7, 1961.

THE RECORD NOW ESTABLISHES THAT THE SHIPMENT IN QUESTION CONSISTED OF CLASS C RATHER THAN CLASS A EXPLOSIVES. ACCORDINGLY, AND FOR THE REASONS STATED ABOVE, THE SETTLEMENT DISALLOWING YOUR ..END :