B-150464, JUN. 28, 1963

B-150464, JUN. 28, 1963

TO THE SUPER SERVICE MOTOR FREIGHT CO.:

WE REFER TO YOUR LETTER OF SEPTEMBER 21, 1962, FILE OC G-77, WHICH IN EFFECT IS A REQUEST FOR REVIEW OF OUR SETTLEMENT CERTIFICATE DATED APRIL 19, 1962 (OUR CLAIM FILE NO. TK-477523). THE SETTLEMENT DISALLOWED YOUR CLAIM FOR $170.40, THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR TRANSPORTING A SHIPMENT OF PUBLIC PROPERTY ON A GOVERNMENT BILL OF LADING FROM BROOKLYN, NEW YORK, TO REDSTONE ARSENAL, DURING FEBRUARY 1958.

THIS SHIPMENT IS DESCRIBED ON GOVERNMENT BILL OF LADING NO. WY 7786889 AS "1 CRATE PUMPS POWER NOI," AND WEIGHED 1,375 POUNDS. SHOWN IN THE BODY OF THE BILL OF LADING IS THIS CERTIFICATE:

")"I CERTIFY THAT EXCLUSIVE VEHICLE

SERVICE WAS FURNISHED FROM

BROOKLYN, N.Y. TO REDSTONE ARSENAL,

ALABAMA")

(BLANK) (BLANK)

(AGENT OF DEST CARRIER DATE

(MUST BE DELIVERED BY A.M. FEB. 3, 1958)"

WHILE THERE IS NOTHING ON THE BILL OF LADING OR ELSEWHERE IN THE RECORD TO INDICATE THAT THE VEHICLE USED (NOT IDENTIFIED BY NUMBER OR OTHERWISE) WAS SEALED, OR IF SEALED, THAT IT ARRIVED AT DESTINATION WITH SEALS INTACT, THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS DELIVERED FEBRUARY 3, 1958.

FREIGHT CHARGES OF $612 WERE BILLED AND COLLECTED ON THIS SHIPMENT. THEY ARE DERIVED FROM ITEM 10020-A, TITLED "VEHICLE ORDERED BY SHIPPER FOR EXCLUSIVE USE," OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE FREIGHT TARIFF NO. 504, MF-I.C.C. NO. 614 (SUPPLEMENT 88). THIS ITEM READS IN PART:

"/A) WHEN UPON REQUEST OF SHIPPER OR CONSIGNEE, A VEHICLE (TRUCK OR TRAILER) IS USED EXCLUSIVELY FOR THE TRANSPORTATION OF A SHIPMENT, CHARGES THEREON SHALL BE COMPUTED AT THE LAWFULLY PUBLISHED RATE, SUBJECT TO A MINIMUM CHARGE COMPUTED AT THE CLASS 100 RATE (SEE NOTE D) FOR 15,000 LBS., APPLICABLE VIA ROUTE OF MOVEMENT (SEE NOTES A AND B).

"/B) EACH BILL OF LADING AND FREIGHT BILL COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS:

"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER.'"

NOTES A, B AND D ARE NOT HERE INVOLVED.

ALTHOUGH INITIALLY YOU WERE ADVISED THAT THE EXCLUSIVE-USE CHARGE BASIS WAS UNREASONABLE TO THE EXTENT THAT IT EXCEEDED CHARGES BASED ON THE TRUCKLOAD RATE AND TRUCKLOAD MINIMUM WEIGHT, THE DIFFERENCE OF $170.40 BETWEEN THE TRUCKLOAD AND THE EXCLUSIVE-USE CHARGE BASIS WAS COLLECTED BY SETOFF BECAUSE THE EXCLUSIVE-USE BASIS WAS FOUND TO BE INAPPLICABLE. YOU WERE ADVISED THAT THE EXCLUSIVE-USE CHARGE BASIS WAS INAPPLICABLE BECAUSE THE BILL OF LADING DID NOT CONTAIN THE ANNOTATION "EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER," REQUIRED BY ITEM 10020-A OF TARIFF NO. 504, AND THAT THE APPLICABLE FREIGHT CHARGES ON THE SHIPMENT WERE THOSE BASED ON THE TRUCKLOAD RATE AND MINIMUM WEIGHT.

YOU THEN FILED YOUR CLAIM FOR $170.40, SUPPORTING IT WITH A CERTIFICATE PREPARED AT YOUR REQUEST DURING OCTOBER 1960 (32 MONTHS AFTER PERFORMANCE OF THE SERVICE) BY THE ISSUING OFFICER OF BILL OF LADING NO. WY-7786889. THIS CERTIFICATE READS:

"TO WHOM IT MAY CONCERN

"ON JANUARY 31ST THE NEW YORK ORDNANCE DISTRICT ORIGINATED A SHIPMENT OF ONE CRATE OF POWER PUMPS WEIGHING 1,375 POUNDS CONSIGNED TO REDSTONE ARSENAL, ALABAMA. IT WAS INTENDED THAT THIS SHIPMENT MOVE IN EXCLUSIVE USE OF VEHICLE SERVICE. THROUGH OVERSIGHT THE EXACT GOVERNMENT BILL OF LADING NOTATION, AS REQUIRED BY TARIFF, WAS NOT SHOWN ON THE BILL. ORDER TO CORRECT THIS DEFICIENCY THE BELOW STATEMENT IS MADE:

"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER

(S) FRED W. RAUSCH--- T.O.--- NYOD

(SHIPPER'S SIGNATURE)"

YOUR CLAIM WAS DISALLOWED ON THE PREMISE THAT THE EXCLUSIVE-USE CHARGE BASIS IS INAPPLICABLE BECAUSE THE BILL OF LADING IS NOT STAMPED OR MARKED IN A MANNER REQUIRED BY THE TARIFF EXCLUSIVE-USE ITEM. THUS,AS THE MATTER NOW STANDS, YOU HAVE BEEN ALLOWED ON THIS SHIPMENT FREIGHT CHARGES OF $441.60, BASED ON A TRUCKLOAD RATE AND MINIMUM WEIGHT.

IN CONTENDING THAT THE EXCLUSIVE-USE CHARGE BASIS IS APPLICABLE ON THIS SHIPMENT, YOU URGE THAT THE STATEMENT PREPARED AT YOUR REQUEST BY THE SHIPPER SOME 32 MONTHS AFTER THE SHIPMENT MOVED CORRECTS THE DEFICIENCY IN THE BILL OF LADING. YOU ALSO CONTEND THAT THE UNSIGNED AND UNDATED TYPEWRITTEN NOTATION "I CERTIFY THAT EXCLUSIVE VEHICLE SERVICE WAS FURNISHED * * *," ON THE BILL OF LADING, INDICATES THAT THE SHIPPER DESIRED THE EXCLUSIVE-USE SERVICES AND THAT BECAUSE OF THAT NOTATION YOU FURNISHED THE EXCLUSIVE-USE SERVICES ON THE SHIPMENT.

THE INTERSTATE COMMERCE COMMISSION, IN GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603 (1951), CITING THE WELL-ESTABLISHED PRINCIPLE THAT THE RULES IN A TARIFF CANNOT BE WAIVED (DAVIS V. HENDERSON, 266 U.S. 92 (1924); NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD OF N.J., 216 I.C.C. 105 (1936) (, HELD THAT THE OMISSION OF A REQUIRED BILL OF LADING ENDORSEMENT WAS A DEFECT FATAL TO THE APPLICATION OF TRANSPORTATION CHARGES BASED ON AN EXCLUSIVE-USE OF VEHICLE RULE EVEN THOUGH EXCLUSIVE USE OF VEHICLE SERVICE ACTUALLY WAS REQUESTED AND FURNISHED. SEE, ALSO, SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED.CAR. CASES 710 (1953). IN THESE CIRCUMSTANCES, THE OMISSION OF THE REQUIRED BILL OF LADING ANNOTATION, A DEFECT WHICH IS NOT CURED BY LATER STATEMENTS OF SHIPPER'S INTENTIONS, SUCH AS IS CONTAINED IN THE CERTIFICATE SUBMITTED BY YOU, DEFEATS YOUR CLAIM FOR EXCLUSIVE-USE SERVICE. IT IS NOTED THAT NO FREIGHT BILL--- A CARRIER PREPARED DOCUMENT MENTIONED, IN ITEM 10020-A -- HAS BEEN SUBMITTED IN THIS INSTANCE.

NOR DO WE CONSIDER THAT THE CERTIFICATE ON THE BILL OF LADING, WHICH YOU SAY INDICATES THAT THE SHIPPER DESIRED THE EXCLUSIVE-USE SERVICE, SUBSTANTIALLY COMPLIES WITH THE LEGEND PRESCRIBED BY THE TARIFF EXCLUSIVE- USE ITEM. IN T.I.M.E., INC. V. UNITED STATES, CIVIL ACTION NO. 2710, ET L., DECIDED IN DECEMBER 1962, THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, HAD BEFORE IT, AMONG OTHER THINGS, THE QUESTION WHETHER THE CERTIFICATE

I CERTIFY THAT EXCLUSIVE VEHICLE SERVICE WAS FURNISHED FROM F.A.A. PHILA. TO MILAN, TENNESSEE, 8/14/53 (SIGNED BY F. DAVID OR F. BEIRD-

SIGNATURE ILLEGIBLE)

ON A GOVERNMENT BILL OF LADING COMPLIED WITH THE SAME TARIFF EXCLUSIVE USE OF VEHICLE ITEM HERE INVOLVED. THE COURT HELD THAT THE BILL OF LADING CERTIFICATE WAS NOT AN ORDER BY THE SHIPPER FOR EXCLUSIVE USE OF VEHICLE SERVICE AND THAT IT THEREFORE DID NOT COMPLY SUBSTANTIALLY WITH THE TARIFF ANNOTATION REQUIREMENTS.

THE BASIC RATE TARIFF GOVERNING THIS SHIPMENT IS FREIGHT TARIFF NO. 504. ITEM 130-J (SUPPLEMENT 103) OF THAT TARIFF STATES THAT THE GOVERNING CLASSIFICATION IS NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3, MF-I.C.C. NO. 8. RULE 13 OF THAT CLASSIFICATION DEFINES A SHIPMENT AS A LOT OF FREIGHT RECEIVED FROM ONE SHIPPER, AT ONE POINT AT ONE TIME FOR ONE CONSIGNEE AT ONE DESTINATION AND COVERED BY ONE BILL OF LADING (SECTION 1). IT PROVIDES THAT A LESS THAN TRUCKLOAD RATING IS A RATING OTHER THAN A VOLUME OR TRUCKLOAD RATING APPLYING ON AN ARTICLE FOR WHICH A VOLUME OR A TRUCKLOAD RATING IS PROVIDED IN THE CLASSIFICATION (SECTION 2 (B) ). ALSO STATES THAT LESS THAN TRUCKLOAD RATINGS COVER SHIPMENTS IN QUANTITIES LESS THAN THE MINIMUM WEIGHT SPECIFIED FOR VOLUME OR TRUCKLOAD SHIPMENTS AND THAT THE CHARGE FOR A SHIPMENT MOVING UNDER A LESS THAN TRUCKLOAD RATING SHALL NOT EXCEED THE CHARGE APPLICABLE TO THE SAME SHIPMENT UNDER THE VOLUME OR TRUCKLOAD RATING AT THE VOLUME OR TRUCKLOAD MINIMUM WEIGHT SPECIFIED (SECTION 2 (D) AND 5).

ITEM 64690 OF CLASSIFICATION NO. A-3 NAMES ON "PUMPS, POWER, NOI," A VOLUME RATING OF CLASS 45 WITH A VOLUME MINIMUM WEIGHT OF 24,000 POUNDS, AND A LESS THAN TRUCKLOAD RATING OF CLASS 85. APPLYING THESE RATINGS, IN CONJUNCTION WITH RULE 13, TO THE SHIPMENT TRANSPORTED ON BILL OF LADING NO. WY-7786889, AND IN THE ABSENCE OF ANY OTHER APPLICABLE CHARGE BASIS (SUCH AS AN EXPEDITED SERVICE PROVISION) OR OF SOME EVIDENCE (SUCH AS A CLEAR SEAL RECORD) SHOWING THAT THE SHIPMENT MOVED FROM ORIGIN TO DESTINATION IN TRUCKLOAD SERVICE, WE FIND THAT THE FREIGHT CHARGES APPLICABLE ON THE SHIPMENT SHOULD BE THOSE BASED ON THE ACTUAL WEIGHT OF 1,375 POUNDS, AND THE LESS THAN TRUCKLOAD RATING OF CLASS 85.

THE SETTLEMENT CERTIFICATE DATED APRIL 19, 1962, WHICH DISALLOWED YOUR CLAIM FOR $170.40, IS INCORRECT ON THE PRESENT RECORD IN THAT IT ALLOWED YOU FREIGHT CHARGES ON A TRUCKLOAD RATHER THAN ON A LESS THAN TRUCKLOAD BASIS. WE THEREFORE HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO REOPEN THE SETTLEMENT AND TO RE-EXAMINE THE RECORD, IN THE LIGHT OF THE APPLICABILITY OF A LESS THAN TRUCKLOAD CHARGE BASIS. YOU WILL BE FURTHER ADVISED AS TO THE ADJUSTED CHARGES.