B-157720, JAN. 7, 1966, 45 COMP. GEN. 384

B-157720, JAN. 7, 1966, 45 COMP. GEN. 384

TRANSPORTATION - RATES - EXCLUSIVE USE OF VEHICLE - EVIDENCE THE PAYMENT OF EXCLUSIVE USE OF VEHICLE CHARGES FOR TRANSPORTING A SHIPMENT UNDER A BILL OF LADING ANNOTATED "EMERGENCY EXPEDITE FOR EARLIEST POSSIBLE DELIVERY" RATHER THAN "EXCLUSIVE USE OF VEHICLE REQUESTED," THE NOTATION REQUIRED BY THE APPROPRIATE TARIFF TO ESTABLISH ENTITLEMENT TO THE EXCLUSIVE USE CHARGES, IS FOR ADJUSTMENT AND COLLECTION ACTION TO RECOVER THE OVERPAYMENT, THE ANNOTATION USED FAILING TO APPRISE THE ORIGIN CARRIER THAT THE SHIPPER REQUESTED EXCLUSIVE USE OF VEHICLE SERVICES, AND A STATEMENT THAT THE SPECIAL SERVICE HAD BEEN VERBALLY REQUESTED, FURNISHED MORE THAN 2 YEARS AFTER THE SHIPMENT WAS TENDERED, NOT HAVING BEEN MADE CONTEMPORANEOUSLY, NEITHER OPERATES TO RELIEVE THE CARRIER FROM COMPLYING WITH ESSENTIAL TARIFF REQUIREMENTS, NOR CURES THE DEFECT OF THE OMITTED EXCLUSIVE USE OF VEHICLE NOTATION, SECTION 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317 (B), PROHIBITING THE WAIVER OF TARIFF RULES, EXCEPT FOR TRANSPORTATION FURNISHED UNDER SECTION 22, BECAUSE A WAIVER DEPRIVES A SHIPPER OF THE EQUALITY OF TREATMENT DEMANDED BY SECTION 217 (B).

TO THE TERMINAL TRANSPORT COMPANY, INC., JANUARY 7, 1966:

WE REFER AGAIN TO YOUR LETTER OF SEPTEMBER 17, 1965 (WITH ENCLOSURES), YOUR FILE O/C 8-3-221, IN WHICH YOU QUESTION THE PROPRIETY OF THE OVERCHARGE ADJUSTMENT IN THE FREIGHT CHARGES PAID TO YOU FOR TRANSPORTING A SHIPMENT IN OCTOBER 1962 UNDER GOVERNMENT BILL OF LADING NO. B-7415953 FROM OGDEN, UTAH, TO OPALOCKA AIR FORCE BASE, FLORIDA.

THE BILL OF LADING WAS ISSUED BY THE UTAH ARMY DEPOT; IT AUTHORIZED THE TRANSPORTATION OF 284 BOXES OF LEATHER STRAPS, WEIGHING A TOTAL OF 39,406 POUNDS, FROM OGDEN TO OPALOCKA. IN ADDITION TO THE USUAL ENTRIES, THE BODY OF THE BILL OF LADING CONTAINS THIS TYPEWRITTEN ANNOTATION:

EMERGENCY EXPEDITE

FOR EARLIEST POSSIBLE DELIVERY.

ON OCTOBER 29, 1962, THE SHIPMENT WAS TENDERED AT OGDEN TO BARTON TRUCK LINES; AND, AS INDICATED IN THE CONSIGNEE'S CERTIFICATE OF DELIVERY IN THE BILL OF LADING, ON NOVEMBER 3, 1962, IT WAS DELIVERED AT OPALOCKA BY TERMINAL TRANSPORT COMPANY.

FOR THIS TRANSPORTATION SERVICE YOU COLLECTED ON YOUR BILL NO. 749 FREIGHT CHARGES TOTALING $4,562.80. SEE 49 U.S.C. 66. THESE CHARGES ARE BASED ON THE EXCLUSIVE USE OF TWO TRAILERS AND ARE DERIVED FROM A CHARGE BASIS--- 22,000 POUNDS AT THE CLASS 100 RATE ($10.37 PER 100 POUNDS/--- SET FORTH IN ITEM NO. 940, TITLED "EXCLUSIVE USE OF VEHICLE," OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANS-CONTINENTAL TERRITORIAL DIRECTORY NO. 20-D, MF-I.C.C. 132.

IN THE AUDIT OF THE CHARGES PAID TO YOU ON THIS SHIPMENT, OUR TRANSPORTATION DIVISION NOTIFIED YOU ON A USGAO FORM 1003 OF AN OVERCHARGE OF $1,705.86. THE OVERCHARGE IS BASED ON THE FACT THAT THE BILL OF LADING WAS NOT ANNOTATED WITH A REQUEST FOR EXCLUSIVE USE OF VEHICLE AS REQUIRED BY ITEM NO. 940. THE FREIGHT CHARGES ALLOWED ON THE SHIPMENT ARE BASED ON ITS ACTUAL WEIGHT AT $7.25 PER 100 POUNDS, THE CLASS 70 RATE SHOWN IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 21-B, MF-I.C.C. NO. 177, WHICH IS APPLICABLE TO TRUCKLOAD SHIPMENTS OF THE COMMODITY TRANSPORTED. IN THE ABSENCE OF REFUND AND AFTER RESPONSE TO YOUR PROTEST THE OVERCHARGE WAS COLLECTED BY DEDUCTION.

PARAGRAPH 2 OF ITEM NO. 940 READS:

2. UPON REQUEST OF THE CONSIGNOR, THE CARRIER WILL FURNISH A VEHICLE * * * WHICH VEHICLE WILL BE ASSIGNED TO, AND EXCLUSIVELY USED BY THE CARRIER FOR, THE TRANSPORTATION OF THE SHIPMENT. ONLY ONE VEHICLE PER SHIPMENT WILL BE FURNISHED AND A BILL OF LADING, BEARING A NOTATION INDICATING THAT THE SHIPPER REQUESTS SUCH EXCLUSIVE USE OF THE VEHICLE, MUST BE PROVIDED FOR EACH SUCH SHIPMENT. SHIPMENTS WHICH BECAUSE OF THEIR WEIGHT, OR THEIR CUBICAL-WEIGHT DENSITY, OR BOTH, CANNOT BE LOADED AND TRANSPORTED IN ONE VEHICLE, EITHER BECAUSE OF THE CARRYING CAPACITY OF THE VEHICLE OR BECAUSE OF STATE WEIGHT-LAW LIMITATIONS WILL NOT BE ACCORDED THE EXCLUSIVE USE OF VEHICLE SERVICE PROVIDED FOR IN THIS ITEM. BILL OF LADING NO. B-7415953 DOES NOT BEAR A NOTATION INDICATING THAT THE SHIPPER REQUESTS THE EXCLUSIVE USE OF A VEHICLE.

IN CONTENDING THAT THE EXCLUSIVE-USE CHARGE BASIS IS APPLICABLE TO THIS SHIPMENT YOU STATE THAT THE EXCLUSIVE USE OF "THE VEHICLE" WAS REQUESTED VERBALLY, THAT IT WAS NOTED IN PENCIL ON THE SHIPPING ORDER COPY OF THE BILL OF LADING, AND THAT IT WAS NECESSARY TO MEET A DEADLINE ARRIVAL DATE. YOU FURNISH CERTAIN STATEMENTS IN SUPPORT OF YOUR ALLEGATION THAT EXCLUSIVE-USE SERVICE WAS FURNISHED IN THIS INSTANCE.

ONE OF THE STATEMENTS INDICATING THAT EXCLUSIVE USE OF VEHICLE WAS REQUESTED IS SIGNED BY C. ROY NICKERSON, TRAFFIC MANAGER; IT WAS PREPARED AT YOUR REQUEST MORE THAN 2 YEARS AFTER THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER, AND YOU REFER TO THAT PART OF THE ADMINISTRATIVE DIRECTIONS ON THE BACK OF THE BILL OF LADING WHICH STATES THAT IF IT IS IMPRACTICAL TO PLACE NOTATIONS OF SPECIAL SERVICES ON BILLS OF LADING,"THE SAME INFORMATION MAY BE SET FORTH IN A STATEMENT BEARING THE NUMBER OF THE COVERING BILL OF LADING WHICH SHALL BE SIGNED BY OR FOR THE PERSON WHO ORDERED THE SERVICES.' YOU URGE THAT MR. NICKERSON'S STATEMENT IN EFFECT AMENDS THE BILL OF LADING AND THAT IT COMPLIES WITH THE ADMINISTRATIVE DIRECTIONS.

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); CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 276 (1962), 157 CT.CL. 365. IN THESE CIRCUMSTANCES, THE OMISSION OF THE REQUIRED BILL OF LADING ANNOTATION, A DEFECT WHICH IS NOT CURED BY LATER STATEMENTS OF SHIPPERS' INTENTIONS, SUCH AS IS CONTAINED IN THE STATEMENT SUBMITTED BY YOU, DEFEATS YOUR CLAIM THAT CHARGES FOR THE EXCLUSIVE USE OF A VEHICLE ARE APPLICABLE TO THIS SHIPMENT.

THE PRINCIPLE PROHIBITING THE WAIVER OF TARIFF RULES IS BASED ON SECTION 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317 (B), WHICH PROVIDES THAT, EXCEPT FOR TRANSPORTATION FURNISHED FREE OR AT REDUCED RATES UNDER SECTION 22 OF THE ACT, 49 U.S.C. 22,"NO COMMON CARRIER BY MOTOR VEHICLE SHALL CHARGE OR DEMAND OR COLLECT OR RECEIVE A GREATER OR LESS OR DIFFERENT COMPENSATION FOR TRANSPORTATION OR FOR ANY SERVICE IN CONNECTION THEREWITH BETWEEN THE POINTS ENUMERATED IN SUCH (ITS) TARIFF THAN THE RATES, FARES, AND CHARGES SPECIFIED IN THE TARIFFS IN EFFECT AT THE TIME.' THUS, UNLESS AUTHORIZED UNDER SECTION 22 OF THE ACT, ANY DEVIATION FROM A CARRIER'S PUBLISHED TARIFF IS PROHIBITED BECAUSE IT WOULD EFFECTIVELY DEPRIVE SHIPPERS OF THE EQUALITY OF TREATMENT DEMANDED BY SECTION 217 (B). SEE DAVIS V. CORNWELL, 264 U.S. 560 (1924).

NOR DO WE CONSIDER THAT THE ANNOTATION ON BILL OF LADING NO. B 7415953 SUBSTANTIALLY COMPLIES WITH THE NOTATION REQUIREMENTS OF THE TARIFF EXCLUSIVE-USE ITEM. IT DOES NOT SEEM TO US THAT IT REASONABLY APPRISES THE ORIGIN CARRIER THAT THE SHIPPER IS REQUESTING THE EXCLUSIVE USE OF ITS VEHICLE. SEE, IN THIS CONNECTION, CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, SUPRA.

WRITTEN STATEMENTS PREPARED IN COMPLIANCE WITH THE PART OF THE ADMINISTRATIVE DIRECTIONS REFERRED TO BY YOU SHOULD BE REASONABLY CONTEMPORANEOUS WITH THE TRANSPORTATION SERVICE INVOLVED. THE BILL OF LADING INSTRUCTION IS NOT INTENDED AND IT IS NOT OPERATIVE TO RELIEVE A CARRIER FROM COMPLYING WITH ESSENTIAL TARIFF REQUIREMENTS. AND, IN THE ABSENCE OF A TARIFF OR SECTION 22 QUOTATION RULE PERMITTING THE PRACTICE, WE CANNOT GIVE EFFECT TO LONG-DELAYED EFFORTS TO ESTABLISH A STATE OF FACTS NOT REFLECTED IN THE SHIPPING DOCUMENTS AS THEY ARE ISSUED.

IN THESE CIRCUMSTANCES, WE CONCLUDE THAT THE COLLECTION ACTION WAS PROPER AND IT IS SUSTAINED.