B-166362, JAN. 14, 1970

B-166362, JAN. 14, 1970

TRANSPORTATION--FREIGHT CHARGES--MISROUTING DECISION SUSTAINING SETTLEMENT DISALLOWING CLAIM OF MERCHANTS FAST MOTOR LINES INC. FOR FREIGHT CHARGES ON SHIPMENT OF EXPLOSIVE BOMBS MISROUTED IN SHIPMENT FROM SAVANNA, OKLAHOMA TO BANGOR, WASHINGTON. WHERE DURING SHIPMENT UNDER GOVERNMENT BILL OF LADING, SPECIFYING A DESIRED DELIVERY DATE CONNECTING CARRIER REFUSED SHIPMENT BECAUSE OF MECHANICAL DEFICIENCY IN TRAILERS SO THAT SHIPMENT HAD TO BE REROUTED FROM ROUTE SPECIFIED IN BILL OF LADING ORIGINATING CARRIER SHOULD HAVE OBTAINED FURTHER INSTRUCTIONS FROM SHIPPER AND WITHOUT SUCH AUTHORITY THE CARRIER HAD NO RIGHT TO DEVIATE. HENCE ADDITIONAL FREIGHT CHARGES ARE NOT PAYABLE. DESIRED DELIVERY DATE ON BILL OF LADING ALONE IS NOT CONSTRUED AS REQUEST FOR EXCLUSIVE USE OF VEHICLE OR OTHER TYPE OF SPECIAL USE. RECORD SHOWS SHIPMENT DID NOT RECEIVE EXPEDITED SERVICE OR A SPECIAL HANDLING.

TO MR. REAGAN SAYERS:

WE REFER AGAIN TO YOUR LETTER OF JULY 25, 1969, FILE 5-432, REQUESTING REVIEW OF OUR SETTLEMENT OF JUNE 6, 1969 (OUR CLAIM FILE TK 889861). THE SETTLEMENT DISALLOWED THE CLAIM OF MERCHANTS FAST MOTOR LINES, INC. (MERCHANTS), FOR $8,276.78, THE BALANCE OF FREIGHT CHARGES ALLEGED TO BE DUE FOR TRANSPORTATION FURNISHED UNDER GOVERNMENT BILL OF LADING NO. A- 6678027.

THIS CASE INVOLVES THE MISROUTING BY MERCHANTS OF A SHIPMENT OF EXPLOSIVE BOMBS WEIGHING 169,400 POUNDS WHICH MOVED IN FOUR TRAILERS FROM SAVANNA, OKLAHOMA, TO BANGOR, WASHINGTON. THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER NOVEMBER 15, 1966, AND DELIVERED AT DESTINATION DECEMBER 1, 19669

THE SPACE IN THE BILL OF LADING TO BE USED FOR THE SHOWING OF TARIFF OR SPECIAL RATE AUTHORITIES IS ANNOTATED "RMTB TENDER 16," WHICH PRESUMABLY IS A REFERENCE TO U. S. GOVERNMENT QUOTATION I.C.C. NO. 16 ISSUED BY THE ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC; AGENT. AND THE BILL OF LADING IS ROUTED: "TOX C/O MERCHANTS FAST MOTOR LINES INC. C/O TIME FREIGHT INC C/O T.I.M.E. FREIGHT INC OPR OF CONSTRUCTORS TRANSPORT CO C/O TRI STATE MOTOR TRANSIT CO," A ROUTING INCLUDED IN "ROUTE 1479" OF ITEM 900 OF THE QUOTATION. THERE ARE ALSO THE NOTATIONS "DDD 21 NOVEMBER," AND "IPD 2 FOR EXPORT FOR SPECIAL EXPRESS * * *," ON THE FACE OF THE BILL OF LADING.

THE RECORD SHOWS THAT THE SHIPMENT MOVED VIA TEXAS OKLAHOMA EXPRESS AND MERCHANTS FAST MOTOR LINES, INC; TO EL PASO, TEXAS. AT THAT POINT MERCHANTS TENDERED THE SHIPMENT TO T.I.M.E. WHO REFUSED IT BECAUSE OF ITS BELIEF THAT THE FOUR TRAILERS WERE MECHANICALLY DEFICIENT. MERCHANTS HAD THE DEFICIENCIES CORRECTED BUT T.I.M.E. AGAIN REFUSED THE SHIPMENT. MERCHANTS STATES ON PAGE 3 OF ITS AFFIDAVIT IN SUPPORT OF ITS CLAIM, DATED JULY 24, 1969, "THE ROUTING WAS CHANGED BY US AT EL PASO TO WESTERN GILLETTE," WHO, WITH ITS CONNECTING CARRIERS TRANSPORTED THE SHIPMENT TO DESTINATION. THE SHIPPER ADVISES US THAT IT DID NOT AUTHORIZE THE CARRIERS TO DEVIATE FROM THE ROUTE SHOWN ON THE BILL OF LADING.

IN YOUR REQUEST FOR REVIEW, YOU CONTEND THAT AS A MATTER OF LAW MERCHANTS DID NOT MISROUTE THE SHIPMENT. HOWEVER, WE FIND NO REASON TO REVERSE THE SETTLEMENT WHICH DISALLOWED MERCHANTS' CLAIM.

THE INTERSTATE COMMERCE COMMISSION (ICC) LONG HAS HELD THAT A MOTOR CARRIER GUILTY OF MISROUTING IS LIABLE FOR THE DIFFERENCE BETWEEN THE RATE APPLICABLE OVER THE ACTUAL ROUTE AND THE LOWER RATE APPLICABLE VIA THE ROUTE OVER WHICH THE SHIPMENT SHOULD HAVE MOVED, AND THAT THE LIABILITY FOR THE EXCESS CHARGES RESTS UPON THE MOTOR CARRIER GUILTY OF MISROUTING. SEE, FOR EXAMPLE, HEWITT-ROBINS, INC. V. EASTERN FREIGHT-WAYS, INC; 302 I.C.C. 173 (1957), AFFIRMED 371 U.S. 81. AND THE RATIONALE OF THE ICC CASES HAS BEEN APPLIED TO SHIPMENTS MOVING UNDER RATES DERIVED FROM RATE QUOTATIONS AUTHORIZED UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 22. 43 COMP. GEN. 54 (1963).

IN 43 COMP. GEN. 54, WE CITE THESE MISROUTE CASES: ALABAMA ROCK ASPHALT, INC. V. ABILENE & SOUTHERN RAILWAY CO; 206 I.C.C. 510; SUNDERLAND BROS. CO. V. LOUISVILLE & NASHVILLE RAILROAD CO; 168 I.C.C. 446; FERGUSON, ASSIGNEE V. LOUISVILLE & ARKANSAS RAILWAY CO; 196 I.C.C. 369, 373. AND IN YOUR LETTER OF JULY 25, 1969, YOU DISTINGUISH THOSE CASES ON THEIR FACTS AND STATE THAT NOT ONE OF THEM INVOLVED A SITUATION WHERE THE CARRIER HAD NO ALTERNATIVE TO CHANGING THE ROUTING. NEVERTHELESS, AND BY ANALOGY, THE BASIC PRINCIPLES SET DOWN IN THESE CASES ARE APPLICABLE TO THE SITUATION AT HAND. THE QUESTION IS WHETHER UNDER THE FACTS IN THIS CASE MERCHANTS IS GUILTY OF MISROUTING.

ON PAGE 4 OF YOUR LETTER OF JULY 25, 1969, YOU CITE THE CASE OF EASTERN AIRCRAFT V. FRED OLSON & SON MOTOR SERVICE CO; 47 M.C.C. 303 (1947), WHICH WE BELIEVE CONTAINS FACTS ANALOGOUS TO THOSE HERE INVOLVED.

IN EASTERN AIRCRAFT THE SHIPMENTS MOVED ON A GOVERNMENT BILL OF LADING WHICH WAS ROUTED VIA OLSON MOTOR AND COOPER-JARRETT CO. WHEN OLSON TENDERED THE SHIPMENTS TO COOPER-JARRETT, THAT CARRIER REFUSED TO ACCEPT THE SHIPMENTS BECAUSE IT DID NOT HAVE AVAILABLE THE OPEN-TOP EQUIPMENT NECESSARY FOR THE TRANSPORTATION OF THE SHIPMENTS. THE ICC STATED THAT "* * * AFTER REFUSAL OF THESE SHIPMENTS BY COOPER-JARRETT, IT WAS INCUMBENT UPON THE DEFENDANT (OLSON) TO OBTAIN FURTHER INSTRUCTIONS FROM THE COMPLAINANT (CONSIGNEE-SHIPPER)." SIMILARLY, HERE, WHEN T.I.M.E. REFUSED TO ACCEPT THE SHIPMENTS FROM THE SHIPPER BECAUSE WITHOUT SHIPPER CONSENT IT HAD NO AUTHORITY TO MERCHANTS, MERCHANTS SHOULD HAVE OBTAINED FURTHER INSTRUCTIONS FROM DEVIATE FROM THE ROUTE SHOWN ON BILL OF LADING NO. A- 6678027. SEE SOUTHERN RY. CO. V. I. M. FRANK & CO; 63 S.E. 656 (1909); CF. ST. LOUIS SOUTHWESTERN RY. CO. V. LOUISIANA & TEXAS CO; 109 S.W. 1143, 1144 (1908).

YOU CONTEND THAT THIS CASE AND EASTERN AIRCRAFT ARE DISTINGUISHABLE IN THAT HERE THERE WAS A DESIRED DELIVERY DATE (DDD) SHOWN ON THE GOVERNMENT BILL OF LADING AND THAT AFTER REFUSAL OF THE SHIPMENT BY T.I.M.E; MERCHANTS HAD NO ALTERNATIVE TO CHANGING THE ROUTING BECAUSE IT WAS BOUND TO MEET THE DESIRED DELIVERY DATE.

WE HAVE HELD THAT THE DESIRED DELIVERY DATE ALONE ON A BILL OF LADING IS NOT TO BE CONSTRUED AS A REQUEST FOR "EXCLUSIVE USE OF VEHICLE," "EXPEDITED SERVICE," OR ANY OTHER TYPE OF SPECIAL SERVICE. B 162519, FEBRUARY 9, 1968. FURTHERMORE, WE NOTE THAT THE INTERCHANGE AT EL PASO, TEXAS, WITH WESTERN GILLETTE WAS ACCOMPLISHED NOVEMBER 18, 1966, AND THAT DELIVERY WAS EFFECTED AT BANGOR, WASHINGTON, ON DECEMBER 1, 1966. THUS, THERE WAS AN ELAPSED TRANSIT TIME OF 13 DAYS WHICH WAS DOUBLE THE TRANSIT TIME ANTICIPATED FOR THE ENTIRE MOVEMENT. IT SEEMS CLEAR, IN VIEW OF THE ELAPSED TIME FROM EL PASO, TEXAS, TO BANGOR, WASHINGTON, THAT THE SHIPMENT RECEIVED NEITHER SPECIAL HANDLING NOR EXPEDITED SERVICE BY THE CARRIERS WITH WHOM MERCHANTS REROUTED THE SHIPMENT.

WE NOTE TOO THAT THE CONTRACT OF CARRIAGE ALREADY REQUIRES THAT A CARRIER USE REASONABLE DISPATCH: CONDITION 2 OF THE GOVERNMENT BILL OF LADING STATES THAT UNLESS OTHERWISE SPECIFICALLY PROVIDED OR OTHERWISE STATED THEREON, THE GOVERNMENT BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERN COMMERCIAL SHIPMENTS MADE ON THE USUAL FORMS PROVIDED THEREFOR BY THE CARRIER; SECTION 2(A) OF THE UNIFORM STRAIGHT BILL OF LADING PROVIDES THAT "NO CARRIER IS BOUND TO TRANSPORT SAID PROPERTY BY ANY PARTICULAR SCHEDULE, TRAIN, VEHICLE OR VESSEL, OR IN TIME FOR ANY PARTICULAR MARKET OR OTHERWISE THAN WITH REASONABLE DISPATCH."

SINCE OUR SETTLEMENT OF JUNE 6, 1969, IS NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE, IT IS SUSTAINED.