B-163956, AUG. 15, 1968
Highlights
YOU BILLED AND WERE PAID AT THE CLASS 400 RATE OF $48.68 PER 100 POUNDS. " WHERE IT STATES IN PARAGRAPH 14 THAT THE CORRECT DESCRIPTION OF THE ARTICLE WAS "SHELTER. FOUND THAT THE CORRECT RATING IS CLASS 85 1C1. YOU STATE: "IT HAS ALWAYS BEEN ABUNDANTLY CLEAR THAT NMFC ITEM 14440 COVERS THIS ITEM AND THERE WAS NO REASON AT ALL FOR THE TRANSPORTATION (SIC) DIVISION TO ATTEMPT TO TERM THIS ITEM A WEATHER INSTRUMENT SHELTER. NEITHER WAS THERE ANY VALID REASON TO DEDUCT THE AMOUNT CLAIMED.'. THE ADMINISTRATIVE OFFICE REPORTS THAT THE COMMODITY IS PROPERLY DESCRIBED AS "SHELTERS. THERE ARE ENCLOSED COPIES OF THE REPORT DATED APRIL 2. SUCH ARTICLE APPEARS TO CONSIST OF A RUBBERIZED BALLOON TYPE MATERIAL WHICH WHEN INFLATED IS USED TO PROVIDE SHELTER FOR INSTRUMENTS AND IS KNOCKED DOWN TO LESS THAN ONE-THIRD OF ITS ASSEMBLED SIZE.
B-163956, AUG. 15, 1968
TO NAVAJO FREIGHT LINES, INC.:
IN YOUR LETTER OF MARCH 29, 1968, YOUR CLAIM FILE 1557-EO, OUR TK 861229, YOU REQUEST REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM PER SUPPLEMENTAL BILL DATED JUNE 7, 1967, FOR $2,098.95, ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A LESS TRUCKLOAD SHIPMENT OF COMMODITIES DESCRIBED ON THE GOVERNMENT BILL OF LADING AS (1) "ANTENNA ENCLOSURES, RADAR HOUSINGS OR SECTIONS THEREOF, NOI, NMFC NO. 14440," WEIGHING 5,476 POUNDS; AND (2) "RADIO TRANSMITTING AND RECEIVING SETS COMBINED, NMFC NO. 62820," WEIGHING 440 POUNDS. THE SHIPMENT MOVED FROM FRIENDSHIP INTERNATIONAL AIRPORT, BALTIMORE, MARYLAND, TO MCCLELLAN AIR FORCE BASE, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. C-3067763, DATED JANUARY 11, 1965.
ON ITEM 1 OF THE BILL OF LADING, YOU BILLED AND WERE PAID AT THE CLASS 400 RATE OF $48.68 PER 100 POUNDS, PER ITEM 14440, NATIONAL MOTOR FREIGHT CLASSIFICATION A-7. IN RELIANCE ON DEPARTMENT OF DEFENSE FORM DD 1352 "GOVERNMENT BILL OF LADING CORRECTION NOTICE," WHERE IT STATES IN PARAGRAPH 14 THAT THE CORRECT DESCRIPTION OF THE ARTICLE WAS "SHELTER, WEATHER INSTRUMENTS COMPLETELY KNOCKED DOWN (175530)," OUR OFFICE, ON AUDIT OF THE PAYMENT VOUCHER FOR THE SERVICES PERFORMED, FOUND THAT THE CORRECT RATING IS CLASS 85 1C1, AS PROVIDED IN ITEM 175530, SUB 3, NMFC A- 7, MF-I.C.C. 5, AT A RATE OF $10.35 PER 100 POUNDS PER ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 21 B, MF-I.C.C. 117, AND ISSUED AN OVERCHARGE FORM 1003 IN THE AMOUNT OF $2,098.75, SUBSEQUENTLY RECOVERED BY DEDUCTION.
IN YOUR LETTER OF MARCH 29, 1968, YOU STATE:
"IT HAS ALWAYS BEEN ABUNDANTLY CLEAR THAT NMFC ITEM 14440 COVERS THIS ITEM AND THERE WAS NO REASON AT ALL FOR THE TRANSPORTATION (SIC) DIVISION TO ATTEMPT TO TERM THIS ITEM A WEATHER INSTRUMENT SHELTER. NEITHER WAS THERE ANY VALID REASON TO DEDUCT THE AMOUNT CLAIMED.' HOWEVER, THE ADMINISTRATIVE OFFICE REPORTS THAT THE COMMODITY IS PROPERLY DESCRIBED AS "SHELTERS, WEATHER INSTRUMENTS COMPLETELY KNOCKED DOWN," AS COVERED BY ITEM 175530, SUB 3, NMFC A-7. THERE ARE ENCLOSED COPIES OF THE REPORT DATED APRIL 2, 1965, OF THE DEPARTMENT OF THE ARMY AS TO THE PROPER CLASSIFICATION OF THE ARTICLE AND A SUPPLEMENTAL REPORT THERETO DATED MARCH 21, 1967, SHOWING IN MORE DETAIL THE CHARACTERISTICS OF THE ARTICLE SHIPPED. SUCH ARTICLE APPEARS TO CONSIST OF A RUBBERIZED BALLOON TYPE MATERIAL WHICH WHEN INFLATED IS USED TO PROVIDE SHELTER FOR INSTRUMENTS AND IS KNOCKED DOWN TO LESS THAN ONE-THIRD OF ITS ASSEMBLED SIZE.
THE QUESTION OF THE PROPER DESCRIPTION AND CLASSIFICATION OF THE COMMODITIES SHIPPED IS ONE TO BE DETERMINED ON A CONSIDERATION OF THE CHARACTERISTICS OF THE ITEMS ACTUALLY SHIPPED. THESE ITEMS WERE MANUFACTURED FOR THE ADMINISTRATIVE OFFICE ACCORDING TO SPECIFICATIONS DRAWN BY THAT OFFICE. IT WOULD APPEAR THAT THE ADMINISTRATIVE OFFICE WOULD BE BEST QUALIFIED TO MAKE THE DETERMINATION AS TO WHAT WAS SHIPPED AND IT HAS LONG BEEN THE PRACTICE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT UPON DISPUTED QUESTIONS OF FACT TO ACCEPT THE ADMINISTRATIVE REPORT AS TRUE IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY. COMP. GEN. 1105, 1106; 16 ID. 325, 329; 14 ID. 927, 929; AND 11 ID. 473, 476.
UNDER SECTION 217 (B) OF THE MOTOR CARRIER'S ACT, 49 U.S.C. 317 (B), CARRIERS BY MOTOR VEHICLE 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 -- NEITHER MORE NOR LESS THAN THE APPLICABLE RATES. FEDDERS QUIGAN CORP. V LONG TRANSP. CO., 64 M.C.C. 581, 587.
IT IS WELL ESTABLISHED THAT THE PRESUMPTION OF CORRECTNESS OF THE BILL OF LADING DESCRIPTION IS NOT CONCLUSIVE. BELL CO. V ANN ARBOR R. CO., 174 I.C.C. 300, 301. AND REGARDLESS OF THE RECITAL IN THE BILL OF LADING RECEIPT AND THE FAILURE OF THE CARRIER TO EXERCISE ITS RIGHT OF INSPECTION, THE IMPORTANT FACT IS WHAT ACTUALLY DID MOVE -- NOT WHAT WAS BILLED. EMBASSY DISTRIBUTING CO. V WESTERN CARLOADING CO., 280 I.C.C. 229, 233; UNITED WELDING CO. V BALTIMORE AND OHIO R., 196 I.C.C. 79; PENN FACING MILLS V ANN ARBOR R. CO., 182 I.C.C. 614, 615; HARRIS BROS. CO. V DIR. EN., 60 I.C.C. 428, 430; HUBLEY MFG. CO. V YORK MOTOR EXP., 69 M.C.C. 432.