B-151883, DEC. 2, 1963

B-151883: Dec 2, 1963

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 13. THE THREE SUPPLEMENTAL BILLS CONCERNED WERE PRESENTED BY THE VON DER AHE VAN LINES. THE DISALLOWANCES WERE PREMISED ON THE FACT THAT THE CLAIMS WERE NOT TIMELY FILED PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940. IN EACH CASE THE CLAIM WAS RECEIVED MORE THAN THREE YEARS SUBSEQUENT TO PAYMENT OF THE ORIGINAL BILL AND WAS ACCORDINGLY DISALLOWED. IT IS YOUR VIEW. THAT THE CLAIMS ARE NOT SUBJECT TO THE THREE-YEAR LIMITATION IN SECTION 322. THE CLAIMS ARE SUBJECT TO THE GENERAL TEN- YEAR LIMITATION FOR FILING CLAIMS IN THE GENERAL ACCOUNTING OFFICE. ARE FOUND PROVISIONS FOR THE ISSUANCE OF THROUGH BILLS OF LADING FROM OR BETWEEN AN INTERIOR POINT IN GERMANY AND THE UNITED STATES.

B-151883, DEC. 2, 1963

TO VON DER AHE VAN LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1963, ASKING THAT THE DISALLOWANCES IN CLAIMS TK-754519, TK-753622 AND TK-754533 BE REVIEWED. THE THREE SUPPLEMENTAL BILLS CONCERNED WERE PRESENTED BY THE VON DER AHE VAN LINES, INC., FOR ADDITIONAL CHARGES IN CONNECTION WITH THREE SHIPMENTS OF HOUSEHOLD GOODS MOVING ON THROUGH BILLS OF LADING BETWEEN POINTS IN THE UNITED STATES AND WEST GERMANY, DURING 1959.

THE DISALLOWANCES WERE PREMISED ON THE FACT THAT THE CLAIMS WERE NOT TIMELY FILED PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66. SECTION 322 AS AMENDED PROVIDES IN PERTINENT PART THAT CLAIMS FOR TRANSPORTATION CHARGES BY CARRIERS SUBJECT TO THE INTERSTATE COMMERCE ACT OR THE CIVIL AERONAUTICS ACT OF 1938 (NOW FEDERAL AVIATION ACT OF 1958) MUST BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN THREE YEARS FROM THE DATE OF ACCRUAL OF THE CAUSE OF ACTION THEREON, OR THREE YEARS FROM THE DATE OF PAYMENT OF THE CHARGES. IN EACH CASE THE CLAIM WAS RECEIVED MORE THAN THREE YEARS SUBSEQUENT TO PAYMENT OF THE ORIGINAL BILL AND WAS ACCORDINGLY DISALLOWED. IT IS YOUR VIEW, HOWEVER, THAT THE CLAIMS ARE NOT SUBJECT TO THE THREE-YEAR LIMITATION IN SECTION 322, STATING IN THIS CONNECTION THAT THE INTERSTATE COMMERCE ACT HAS NO APPLICATION TO THE TRANSPORTATION IN QUESTION, AND THAT, THEREFORE, THE CLAIMS ARE SUBJECT TO THE GENERAL TEN- YEAR LIMITATION FOR FILING CLAIMS IN THE GENERAL ACCOUNTING OFFICE. U.S.C. 71A.

YOU URGE IN SUBSTANCE THAT NOWHERE IN THE INTERSTATE COMMERCE ACT (49 U.S.C. 1 ET SEQ.) ARE FOUND PROVISIONS FOR THE ISSUANCE OF THROUGH BILLS OF LADING FROM OR BETWEEN AN INTERIOR POINT IN GERMANY AND THE UNITED STATES, FOR PUBLICATION OF RATE FACTORS AND SERVICES BETWEEN SUCH POINTS, OR FOR THE INTERSTATE COMMERCE COMMISSION TO ASSUME AUTHORITY OVER TRAFFIC MOVING WITHIN FOREIGN COUNTRIES, OR ON THE HIGH SEAS IN IMPORT OR EXPORT TRAFFIC. YOU URGE FURTHER THAT THE CLAIMANT, THE VON DER AHE VAN LINES, INC., HAS, FOR THE PURPOSES OF THIS TRANSPORTATION, THE STATUS OF AN UNREGULATED FREIGHT FORWARDER.

THE CLAIMS IN QUESTION COVER REQUESTS FOR ADDITIONAL CHARGES IN THE AMOUNT OF $35.16 ON BILL OF LADING NO. WY-8963366 (TK-754519), FOR TRANSPORTATION SERVICES FROM ST. LOUIS, MISSOURI, TO PIRMASENS, GERMANY; $24.21 ON BILL OF LADING NO. WY-8208249 (TK-753622), WURZBURG, GERMANY,TO ROCHESTER, NEW YORK; AND $34.06 ON BILL OF LADING NO. WY 8246846 (TK- 754533), FRANKFURT, GERMANY, TO NEWARK, NEW JERSEY. THERE IS NO QUESTION THAT THE SERVICES WERE, TO THE EXTENT PERFORMED OUTSIDE OF THE UNITED STATES, BEYOND THE REGULATORY AUTHORITY OF THE INTERSTATE COMMERCE COMMISSION. HOWEVER, THE NAME VON DER AHE VAN LINES, INC., IS SHOWN IN SEVERAL PLACES ON EACH BILL OF LADING AND THAT CARRIER IS THE ONE WITH WHICH THE TRANSPORTATION CONTRACT WAS MADE; AND WE FEEL THAT VON DER AHE VAN LINES, INC., WHICH CAUSED THE THROUGH BILLS OF LADING TO BE ISSUED AND WHICH SIGNED THE BILLS OF LADING ON THE TWO SHIPMENTS THAT ORIGINATED IN GERMANY, AS WELL AS THE ONE SHIPMENT THAT ORIGINATED IN THE UNITED STATES, BECAME SUBJECT TO THE PROVISIONS OF SECTION 322 BY REASON OF THE TERMS OF THE TRANSPORTATION CONTRACT.

NONE OF THE BILLS OF LADING IN QUESTION SHOWS THE RATE OR CHARGE TO BE COLLECTED, BUT, RATHER, MAKES REFERENCE TO THE MOVERS' AND WAREHOUSEMEN'S ASSOCIATION OF AMERICA, INC., AGENT, MILITARY RATE TENDER I.C.C. NO. 4, AS THE BASIS FOR DETERMINING THE COMPENSATION TO BE PAID. THIS TENDER IS ISSUED UNDER THE PUBLICATION RULES AND PROVISIONS OF THE INTERSTATE COMMERCE COMMISSION MADE PURSUANT TO ITS AUTHORITY UNDER THE INTERSTATE COMMERCE ACT. FOR INSTANCE, THE AUTHORITY TO ISSUE THE TENDER FOR ACCOUNT OF VON DER AHE VAN LINES AND THE OTHER PARTICIPATING CARRIERS SHOWN ON PAGE 3 OF THE TENDER IS THE MFXA3 PUBLICATION AUTHORITY REQUIRED TO BE FILED BY TARIFF AGENTS WITH THE INTERSTATE COMMERCE COMMISSION UNDER THE PROVISIONS OF RULE 22 (A) OF THE INTERSTATE COMMERCE COMMISSION TARIFF CIRCULAR MF NO. 3. THE TITLE PAGE OF THE TENDER PROVIDES THAT:

"FOR RULES AND REGULATIONS GOVERNING APPLICATION OF THIS TENDER OF RATES AND CHARGES AND APPLICABLE MILEAGES REFER TO CARRIERS' PUBLISHED TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION AND SECTION V HEREIN.'

PAGE 2 OF THE TENDER IS THE DEPARTMENT OF DEFENSE FORM NO. 663, UNIFORM TENDER OF MOTOR CARRIER RATES AND CHARGES. PARAGRAPH 1 OF THIS PAGEMAKES REFERENCE TO THE QUOTATION AND OFFER "PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, OR OTHER APPROPRIATE STATUTORY AUTHORITY.' PARAGRAPH 2 INDICATES THAT THE CARRIERS INVOLVED ARE COMMON CARRIERS. PARAGRAPH 3 PROVIDES THAT THE TENDER COVERS HOUSEHOLD GOODS AS DEFINED BY THE INTERSTATE COMMERCE COMMISSION IN 17 M.C.C. 467; AND THAT THE TRAFFIC COVERED IS FROM OR BETWEEN POINTS IN THE UNITED STATES AND CANADA AND POINTS IN THE REPUBLIC OF GERMANY. PARAGRAPH 8 PROVIDES THAT THE CARRIER SHALL BILL THE GOVERNMENT FOR THE FREIGHT CHARGES IN THE USUAL MANNER, AND THE GOVERNMENT SHALL PAY PROMPTLY TO THE CARRIER THE AMOUNT DUE UNDER THE TENDER. THIS PAGE IS SIGNED BY CARROLL F. GENOVESE, AS AUTHORIZED OFFICER OR AGENT.

THUS IT IS CLEAR THAT THE CARRIERS PARTICIPATING IN THIS TENDER, INCLUDING THE VON DER AHE VAN LINES, INC., IN AUTHORIZING THEIR INTERSTATE COMMERCE TARIFF AGENT TO ACT IN THEIR BEHALF IN A MATTER SOMEWHAT BEYOND THE SCOPE OF HIS PUBLICATION AUTHORITY ADOPTED AND RATIFIED THE STATEMENTS REFERRING TO INTERSTATE COMMERCE JURISDICTION IN THE TENDER. ALSO, THE "USUAL MANNER" OF BILLING IS ON PUBLIC VOUCHER FORM 1113, AND THE "USUAL MANNER" OF PAYING FREIGHT CHARGES BY COMMON CARRIERS BY MOTOR VEHICLE IS AS PROVIDED IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66, I.E., BY PAYMENT UPON PRESENTATION PRIOR TO AUDIT IN THE GENERAL ACCOUNTING OFFICE. THE RECORD SHOWS THAT THE ORIGINAL BILLS PRESENTED FOR THESE SERVICES WERE SO PAID.

THUS, THE PROVISIONS OF TENDER I.C.C. NO. 4 REQUIRE APPLICATION OF EITHER THE INTERSTATE COMMERCE COMMISSION'S RULES OR TARIFFS ON FILE WITH THAT BODY. FOR EXAMPLE, THE NOTE ON THE TITLE PAGE OF SECTION VII OF THE TENDER, NAMING RATES FOR LAND TRANSPORTATION IN GERMANY, WHICH STATES THAT FOR RATES TO APPLY ON SHIPMENTS WHERE THE DECLARED VALUE EXCEEDS 30 CENTS PER POUND PER ARTICLE, REFER TO CARRIER'S PUBLISHED TARIFF ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. REFERENCE TO THE FACT THAT THE OFFER IS BEING MADE PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT (THERE IS NO OTHER APPROPRIATE STATUTORY AUTHORITY), INDICATES AN AGREEMENT, PERHAPS IN THE INTEREST OF UNIFORM RULES AND PROCEDURES, ON THE PART OF THE PARTICIPATING CARRIERS TO BE BOUND BY THE INTERSTATE COMMERCE ACT, AND SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED.

AS PREVIOUSLY NOTED, THE VON DER AHE VAN LINES AND THE OTHER CARRIERS SPECIFICALLY MADE THE OFFER IN THE RATE TENDER AS COMMON CARRIERS, AND THE POWER OF ATTORNEY TO ACT ON BEHALF OF THESE CARRIERS IS SHOWN AS HAVING BEEN SANCTIONED BY THE INTERSTATE COMMERCE COMMISSION. SINCE THE CARRIERS ENGAGED IN A PATTERN OF DEALINGS WITH THE GOVERNMENT WHICH CONTEMPLATED THE APPLICATION OF RULES AND PROCEDURES ORDINARILY GOVERNING THE INTERSTATE OPERATIONS OF THE HOUSEHOLD GOODS COMMON CARRIERS IN THEIR ARRANGEMENTS WITH THE GOVERNMENT, WE BELIEVE THAT THE PROTECTION OF THE GOVERNMENT'S BEST INTEREST REQUIRES US TO GIVE EFFECT TO THE THREE-YEAR LIMITATION ON CLAIMS FILED WITH OUR OFFICE AND ON SUCH CLAIMS AS MIGHT BE FILED BY THE GOVERNMENT WITH THE COMMON CARRIERS INVOLVED.

IT HAS BEEN HELD THAT AN INTRASTATE CARRIER NOT SUBJECT TO THE INTERSTATE COMMERCE ACT, CAN BRING ITSELF WITHIN THE SCOPE OF SECTION 322 BY VIRTUE OF BECOMING A PARTY TO A SECTION 22 QUOTATION ISSUED BY A TARIFF PUBLISHING AGENT. SEE UNITED STATES V. JESS E. FRANCIS, 320 F.2D. 191, 195 (C.C.A. 9, JUNE 28, 1963). SEE, ALSO, CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY V. INTERSTATE COMMERCE COMMISSION, 162 U.S. 184, 192, 40 L.ED. 935, 938 (1896), WHERE THE SUPREME COURT FOUND THAT AN INTRASTATE RAILROAD BECAME BOUND BY THE PROVISIONS OF THE INTERSTATE COMMERCE ACT BY BECOMING A PARTY TO THROUGH BILLS OF LADING AND THROUGH RATES.

NOTWITHSTANDING THAT THE CLAIMS FOR ADDITIONAL ALLOWANCES RELATE TO THAT PORTION OF THE THROUGH SERVICE WHICH WAS PERFORMED IN GERMANY, THEY MUST BE VIEWED AS HAVING THEIR ORIGIN IN A SINGLE INTEGRATED UNDERTAKING--- PARTLY UNDER SECTION 22--- EVIDENCED BY A SINGLE CONTRACT, I.E., THE GOVERNMENT BILL OF LADING AND TENDER I.C.C. NO. 4, COVERING THE ENTIRE TRANSPORTATION SERVICE BETWEEN POINTS IN THE UNITED STATES AND GERMANY. TENDER I.C.C. NO. 4 SHOWS AS PARTICIPATING CARRIERS ONLY CERTAIN MOTOR CARRIERS ORDINARILY SUBJECT IN THEIR OPERATIONS TO THE INTERSTATE COMMERCE ACT. NO OCEAN CARRIERS OR FOREIGN CARRIERS ARE SHOWN AS HAVING JOINED IN THE RATE AND OTHER PROVISIONS OF THE TENDER AND THE ONLY CARRIER IN A CONTRACTUAL RELATIONSHIP WITH THE GOVERNMENT IS, IN THIS INSTANCE, VON DER AHE VAN LINES, INC. SEE MITSUI V. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, 202 FED. 26 (1913), WHERE THE COURT HELD THAT CONTRACTS OF AFFREIGHTMENT ON THROUGH BILLS OF LADING ISSUED FROM POINTS IN OKLAHOMA TO JAPAN PORTS WERE INDIVISIBLE CONTRACTS. FOR THE FOREGOING REASONS, WE CONCLUDE THAT THE CLAIMS IN QUESTION SHOULD BE LIMITED IN THE SAME MANNER AS OTHER CLAIMS OF MOTOR COMMON CARRIERS CLEARLY WITHIN THE PURVIEW OF SECTION 322, AND THE DISALLOWANCES OF THE THREE CLAIMS IDENTIFIED BY NOS. TK-754519, TK-753622 AND TK-754533 ARE SUSTAINED.

WITH REGARD TO THE CLAIM (TK-765394) PRESENTED WITH YOUR LETTER OF JUNE 13, 1963, OUR TRANSPORTATION DIVISION WILL CONSIDER IT ON THE MERITS, SINCE THAT CLAIM IS NOT VIEWED AS BEING SUBJECT TO THE THREE YEAR LIMITATION. THE BILL OF LADING IN THE CLAIM SHOWS THE VON DER AHE FREIGHT FORWARDING COMPANY IN THE BLOCKS RESERVED FOR INDICATION OF THE CONTRACTING TRANSPORTATION COMPANY, AND REFERENCE IS MADE TO FREIGHT TARIFF NO. 1, EFFECTIVE MAY 6, 1959, ISSUED BY RUSSELL L. VON DER AHE, PRESIDENT, VON DER AHE FREIGHT FORWARDING COMPANY. SINCE THE BILL OF LADING CONTRACT WAS MADE WITH THE NAMED USED HOUSEHOLD GOODS FORWARDER, EXEMPT FROM REGULATION UNDER THE INTERSTATE COMMERCE ACT IN ITS INTERSTATE OPERATIONS, AND SINCE THE TARIFF MAKES NO REFERENCE TO RULES, REGULATIONS, OR PROVISIONS OF ANY SECTION OF THE INTERSTATE COMMERCE ACT, WE BELIEVE THAT THIS ITEM IS DISTINGUISHABLE FROM THE OTHER THREE ITEMS. OUR TRANSPORTATION DIVISION WILL NOTIFY ..END :