B-165091, JAN. 3, 1969

B-165091, JAN. 3, 1969

TO MR. JOHN GUANDOLO:

WE REFER AGAIN TO YOUR LETTER OF AUGUST 16, 1968, IN WHICH YOU REQUEST REVIEW ON BEHALF OF YOUR CLIENT, MCLEAN TRUCKING COMPANY, OF OUR SETTLEMENT CERTIFICATES OF MARCH 11 (OUR CLAIM FILE NO. TK-867598) AND APRIL 15 (OUR TK-868190), 1968. THE SETTLEMENTS DISALLOWED YOUR CLIENT'S CLAIMS FOR ADDITIONAL FREIGHT CHARGES OF $393.24 AND $179.80,RESPECTIVELY, ALLEGED TO BE DUE FOR THE TRANSPORTATION OF PUBLIC PROPERTY FROM AVONDALE, COLORADO, TO FORT ESTILL, KENTUCKY, ON GOVERNMENT BILL OF LADING NO. C- 4318196, DURING AUGUST 1965 (TK 867598), AND FROM LEXINGTON, NORTH CAROLINA, TO AVON, KENTUCKY, ON GOVERNMENT BILL OF LADING NO. C-6534503, DURING NOVEMBER 1965 (TK 868190).

WE AGREE WITH YOUR CONTENTION THAT CAMPBELL "66" EXPRESS, INC. V UNITED STATES, 302 F.2D 270 (1962), IS DISPOSITIVE OF THE ISSUE CONCERNING GOVERNMENT BILL OF LADING NO. C-4318196 TK-867598); WE THEREFORE HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO REOPEN THE SETTLEMENT AND TO ALLOW MCLEAN THE AMOUNT CLAIMED, IF OTHERWISE CORRECT. HOWEVER, A DIFFERENT SITUATION EXISTS WITH RESPECT TO THE SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING NO. C-6534503 (TK 868190).

BILL OF LADING NO. C-6534503 AUTHORIZED THE TRANSPORTATION OF 231 BOXES OF ELECTRIC DRY CELL BATTERIES, WEIGHING A TOTAL OF 15,207 POUNDS, FROM LEXINGTON, NORTH CAROLINA, TO AVON, KENTUCKY. IT ALSO SHOWS THAT SEAL NO. 93515 WAS APPLIED TO TRAILER NO. 6011 AND THAT REFRIGERATION SERVICE WAS REQUIRED FOR THE SHIPMENT.

ON NOVEMBER 18, 1965, THE SHIPMENT WAS TENDERED AT LEXINGTON TO MCLEAN WHO DELIVERED IT AT AVON WITH SEALS INTACT ON NOVEMBER 22, 1965.

FOR THIS TRANSPORTATION SERVICE MCLEAN COLLECTED ON ITS BILL NO. 11614, DATED DECEMBER 17, 1965, FREIGHT CHARGES TOTALLING $450.50. SEE 49 U.S.C.A 66. THESE CHARGES ARE BASED ON THE EXCLUSIVE USE OF A TRAILER AND ARE DERIVED FROM THE MINIMUM CHARGE BASIS -- 15,000 POUNDS AT THE APPLICABLE CLASS 100 TRUCKLOAD RATE -- SET FORTH IN ITEM 2400 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE RULES TARIFF 517-V, MF I.C.C. 1346.

IN THE AUDIT OF THE PAID CHARGES ON THE SHIPMENT, OUR TRANSPORTATION DIVISION NOTIFIED MCLEAN ON A US GAO FORM 1003 OF AN OVERCHARGE OF $179.80. THE OVERCHARGE IS BASED ON THE APPLICABILITY OF TRUCKLOAD RATES AND CHARGES RATHER THAN ON THE MINIMUM CHARGE FOR EXCLUSIVE USE OF VEHICLE SERVICE BECAUSE THE BILL OF LADING IS NOT ANNOTATED WITH A DEMAND FOR EXCLUSIVE USE OF VEHICLE SERVICE AS REQUIRED BY ITEM 2400 OF TARIFF 517- V.

IN A LETTER DATED OCTOBER 18, 1966, MCLEAN PROTESTED THE OVERCHARGE; IT CONTENDED THAT THE SHIPPER DID REQUEST EXCLUSIVE USE OF VEHICLE SERVICE ALTHOUGH HE FAILED TO SHOW THE REQUIRED NOTATION ON THE BILL OF LADING. MCLEAN ENCLOSED WITH ITS LETTER A COPY OF A LETTER DATED DECEMBER 3, 1965, TO MCLEAN FROM A MR. MIKLICH, TRAFFIC SUPERVISOR OF MALLORY, THE SHIPPER. THE LETTER, WHICH APPARENTLY WAS WRITTEN 15 DAYS AFTER THE SHIPMENT WAS TENDERED TO MCLEAN FOR TRANSPORTATION, READS: "THIS LETTER IS TO CONFIRM OUR PHONE CONVERSATION REGARDING SHIPMENT MADE TO AVON, KENTUCKY, NOVEMBER 18, 1965, ON GBL C-6534503. WE DID REQUEST EXCLUSIVE USE OF TRAILER 6011 BUT FAILED TO MARK GBL. "USE THIS AS YOUR LETTER OF AUTHORITY TO INVOICE GOVERNMENT FOR EXCLUSIVE USE.' IN THE ABSENCE OF REFUND AND AFTER RESPONSE TO THIS AND OTHER PROTESTS, THE OVERCHARGE WAS COLLECTED BY DEDUCTION AND MCLEAN'S LATER CLAIM FOR THE AMOUNT DEDUCTED WAS DISALLOWED IN THE SETTLEMENT CERTIFICATE HERE UNDER REVIEW (TK-868190).

THE PERTINENT PART OF ITEM 2400 OF TARIFF 517-V READS:

"UPON DEMAND BY THE CONSIGNOR, THE EXCLUSIVE USE OF A FREIGHT CARRYING VEHICLE WILL BE ASSIGNED TO THE TRANSPORTATION OF A SHIPMENT, SUBJECT TO THE FOLLOWING CONDITIONS: (CONC.)

(B) THE ORDER MUST BE GIVEN IN WRITING, ATTACHED AND REFERRED TO, OR INSERTED ON, THE BILL OF LADING AND SHIPPING ORDER, IN SUBSTANTIALLY THE FOLLOWING FORM: (SEE NOTE A) EXCLUSIVE USE OF THE VEHICLE DEMANDED. SEAL NUMBER (IF ANY) --------------- APPLIES. CHARGES ARE AGREED TO AND WILL BE PAID OR GUARANTEED BY ---------------

SIGNATURE" (CONC. IS DEFINED BY THE TARIFF TO MEAN CONCLUDED AND NOTE A IS NOT HERE INVOLVED.) BILL OF LADING NO. C-6534503 IS NOT ANNOTATED WITH THE REQUIRED ORDER NOR DOES THE RECORD SHOW WHEN THE STATEMENT MAKING THE REQUEST WAS ATTACHED TO THE BILL OF LADING; IT COULD NOT HAVE BEEN ATTACHED PRIOR TO DECEMBER 3, FIFTEEN DAYS AFTER THE SHIPMENT WAS TENDERED TO MCLEAN FOR TRANSPORTATION.

YOU URGE, HOWEVER, THAT THE "CARRIER WAS APPRAISED BY THE SHIPPER TO PROVIDE EXCLUSIVE USE SERVICE, WHICH ORDER OF THE SHIPPER WAS CONFIRMED IN WRITING. THIS IS SUFFICIENT COMPLIANCE WITH THE TARIFF REQUIREMENT.' DISAGREE.

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 FEDERAL CARRIERS CASES 710 (1953); CAMPBELL ,66" EXPRESS, INC. V UNITED STATES, 302 F.2D 276 (1962). IN THESE CIRCUMSTANCES, THE OMISSION OF THE REQUIRED BILL OF LADING ORDER OR OF A TIMELY OR CONTEMPORANEOUS STATEMENT CONTAINING THE ORDER, IF IT IS TO BE ATTACHED TO THE BILL OF LADING, ARE DEFECTS WHICH ARE NOT CURED BY LATER STATEMENTS OF SHIPPERS' INTENTIONS, SUCH AS IS CONTAINED IN THE STATEMENT SUBMITTED BY MCLEAN, AND DEFEATS A 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, 265 U.S. 560 (1924).

ALTHOUGH ITEM 2400 OF TARIFF 517-V IS SILENT ON THE POINT, WE BELIEVE THAT THE WRITTEN ORDER FOR EXCLUSIVE USE OF VEHICLE SERVICE MUST BE REASONABLY CONTEMPORANEOUS WITH THE TRANSPORTATION SERVICE INVOLVED. AND, IN THE ABSENCE OF A TARIFF OR SECTION 22 QUOTATION RULE PERMITTING THE PRACTICE, WE CANNOT GIVE EFFECT TO DELAYED EFFORTS TO ESTABLISH A STATE OF FACTS NOT REFLECTED IN THE SHIPPING DOCUMENTS AS THEY ARE ISSUED.

THE SETTLEMENT OF APRIL 15, 1968, WHICH DISALLOWED YOUR CLIENT'S CLAIM FOR $179.80 (TK-868190), HAS NOT BEEN SHOWN TO BE IN ERROR OTHERWISE AND, ACCORDINGLY, IT IS SUSTAINED.