B-160656, MAR. 6, 1967

B-160656, MAR. 6, 1967

TO TRAFFIC MANAGER, NORTHWEST:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1966, FILE T-TK 821937, ASKING FOR A FURTHER REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM, BILL 9999- 4238A FOR $368.32. THE CLAIM IS FOR ADDITIONAL TRANSPORTATION CHARGES ON FOUR TRUCKLOADS OF GOVERNMENT PROPERTY TRANSPORTED FROM SEATTLE, WASHINGTON, TO LA GRANDE, OREGON, UNDER GOVERNMENT BILLS OF LADING NOS. A- 9778863, A-9778888, A-9778904, AND A 9778910 DATED AUGUST 19, 1961.

THE BILLS OF LADING WERE PREPARED BY THE GENERAL SERVICES ADMINISTRATION AND EACH AUTHORIZED THE TRANSPORTATION OF 800 BAGS OF SODIUM BORATE FROM SEATTLE TO LA GRANDE. IN ADDITION TO THE USUAL ENTRIES, THE BODY OF EACH BILL OF LADING IS ANNOTATED "EMERGENCY FIRE ORDER PLEASE RUSH ALL POSSIBLE.'

THE BILLS OF LADING ARE NOT ANNOTATED WITH THE SHIPPER'S REQUEST FOR EXCLUSIVE USE OF VEHICLE SERVICE AS REQUIRED BY ITEM 595 OF PACIFIC INLAND TARIFF BUREAU TARIFF NO. 5-A AND, AS STATED IN OUR LETTER OF OCTOBER 27, 1966, THIS OFFICE HAS NO AUTHORITY TO WAIVE THE TRAFFIC RULES.

IT IS YOUR VIEW, HOWEVER, THAT EXCLUSIVE USE OF VEHICLE CHARGES ARE APPLICABLE BECAUSE THE PROVISIONS OF THE RULE PERTAINING TO SUCH SERVICES WERE, IN FACT, COMPLIED WITH ORALLY BUT THAT DUE TO AN OVERSIGHT ON THE PART OF THE SHIPPER, THE REQUIRED WRITTEN NOTATION WAS NOT PLACED ON THE GOVERNMENT BILLS OF LADING. YOU SUGGEST THAT THE LETTER FROM GENERAL SERVICES ADMINISTRATION DATED DECEMBER 13, 1962, STATING THAT EXCLUSIVE USE OF VEHICLE SERVICES WERE REQUESTED FULLY SUBSTANTIATES YOUR POSITION.

THE INTERSTATE COMMERCE COMMISSION IN GUS BLASS COMPANY V POWELL BROTHERS TRUCK LINES, 53 M.C.C. 603 (1951), APPLYING THE LONG ESTABLISHED PRINCIPLE THAT RULES IN A TARIFF MAY NOT BE WAIVED (DAVIS V. HENDERSON, 266 U.S. 92 (1924); NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD OF NEW JERSEY, 216 I.C.C. 105 (1936) (HELD THAT THE OMISSION OF A REQUIRED BILL OF LADING INDORSEMENT WAS A DEFECT FATAL TO THE APPLICATION OF TRANSPORTATION CHARGES BASED ON AN EXCLUSIVE USE OF VEHICLE RULE EVEN THOUGH SUCH SERVICE WAS VERBALLY REQUESTED AND ACTUALLY PERFORMED. WHILE SLIGHT VARIATIONS FROM THE FORM OF THE REQUIRED NOTATION ARE PERMISSIBLE, THE SUBSTANCE OF THE RULE MUST BE COMPLIED WITH. CLARK THREAD CO., INC. V. PILOT FREIGHT FORWARDERS, INC. 62 M.C.C. 185, 189 (1953); CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270 (1962).

IT SEEMS CLEAR THAT THE PHRASE "EMERGENCY FIRE ORDER PLEASE RUSH ALL POSSIBLE" DOES NOT CONSTITUTE A COMPLIANCE WITH THE SUBSTANCE OF THE RULE IN TARIFF ITEM NO. 595, BUT SIMPLY SHOWS THAT THE SHIPPER DESIRED MAXIMUM SPEED IN HANDLING. IT CONTAINS NO INDICATION THAT ANY VEHICLE SHOULD BE SOLELY DEVOTED TO MOVING THE SHIPMENT, EITHER EXPRESSLY OR BY INFERENCE.

WE ARE AWARE OF NO LEGAL AUTHORITY TO SUPPORT A CONCLUSION THAT NONCOMPLIANCE WITH A TARIFF RULE MAY BE REMEDIED BY A STATEMENT OF THE SHIPPER, MADE OVER A YEAR AFTER THE MOVEMENT, THAT THE NONCOMPLIANCE OCCURRED THROUGH INADVERTENCE. ON THE CONTRARY, 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 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 THE CARRIER'S PUBLISHED TARIFF, INCLUDING THE TARIFF RULES GOVERNING SUCH CHARGES, 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).

THE SETTLEMENT OF JUNE 24, 1966, WHICH DISALLOWED YOUR CLAIM, HAS NOT BEEN SHOWN TO HAVE BEEN IN ERROR AND, ACCORDINGLY, IT IS SUSTAINED.