B-77933, APRIL 18, 1955, 34 COMP. GEN. 522

B-77933: Apr 18, 1955

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TRANSPORTATION - RATES - WATER CONTENTION OF WATER CARRIER THAT GOVERNMENT MADE SPECIAL ARRANGEMENTS CONCERNING RATES FOR CARGO TRANSPORTATION IS NOT ESTABLISHED BY ADMINISTRATIVE REPORT AND. 1955: REFERENCE IS MADE TO YOUR REQUEST FOR A REVIEW OF THE AUDIT ACTION TAKEN BY THE TRANSPORTATION DIVISION OF THE GENERAL ACCOUNTING OFFICE WITH RESPECT TO PAYMENTS MADE. THE RECORD SHOWS THAT THE CHARGES CLAIMED AND PAID BY THE ADMINISTRATIVE OFFICE WITHOUT PRIOR AUDIT GENERALLY WERE PREDICATED UPON CONTRACT RATES PUBLISHED AND MAINTAINED BY THE MEMBERS OF THE SOUTH ATLANTIC STEAMSHIP CONFERENCE OR THE NORTH ATLANTIC CONTINENTAL FREIGHT CONFERENCE. WHILE THE MAXIMUM ALLOWABLE CHARGES DUE FOR THE SERVICES IN QUESTION WERE STATED IN THE AUDIT HERE ON THE BASIS OF THE RATES PUBLISHED BY ISBRANDTSEN COMPANY.

B-77933, APRIL 18, 1955, 34 COMP. GEN. 522

TRANSPORTATION - RATES - WATER CONTENTION OF WATER CARRIER THAT GOVERNMENT MADE SPECIAL ARRANGEMENTS CONCERNING RATES FOR CARGO TRANSPORTATION IS NOT ESTABLISHED BY ADMINISTRATIVE REPORT AND, THEREFORE, THE COMPANY MAY NOT BE PAID AT RATES IN EXCESS OF THOSE STATES IN ITS PUBLISHED TARIFFS IN THE ABSENCE OF EVIDENCE WHICH ESTABLISHES SUCH SPECIAL ARRANGEMENTS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO ISBRANDTSEN CO., INC., APRIL 18, 1955:

REFERENCE IS MADE TO YOUR REQUEST FOR A REVIEW OF THE AUDIT ACTION TAKEN BY THE TRANSPORTATION DIVISION OF THE GENERAL ACCOUNTING OFFICE WITH RESPECT TO PAYMENTS MADE, BY THE ADMINISTRATIVE AGENCIES INVOLVED, TO YOUR COMPANY FOR TRANSPORTATION SERVICES PERFORMED FOR THE DEPARTMENT OF THE ARMY AND THE MILITARY SEA TRANSPORTATION SERVICE IN CONNECTION WITH VARIOUS SHIPMENTS OF FOODSTUFFS AND RELATED ITEMS FROM UNITED STATES ATLANTIC PORTS TO PORTS IN GERMANY DURING THE YEARS 1948, 1949, 1950, AND 1951.

THE RECORD SHOWS THAT THE CHARGES CLAIMED AND PAID BY THE ADMINISTRATIVE OFFICE WITHOUT PRIOR AUDIT GENERALLY WERE PREDICATED UPON CONTRACT RATES PUBLISHED AND MAINTAINED BY THE MEMBERS OF THE SOUTH ATLANTIC STEAMSHIP CONFERENCE OR THE NORTH ATLANTIC CONTINENTAL FREIGHT CONFERENCE, WHILE THE MAXIMUM ALLOWABLE CHARGES DUE FOR THE SERVICES IN QUESTION WERE STATED IN THE AUDIT HERE ON THE BASIS OF THE RATES PUBLISHED BY ISBRANDTSEN COMPANY, INC., IN ITS OWN TARIFFS AT THE TIME OF SHIPMENT. YOUR SEVERAL LETTERS INDICATE THAT THERE ARE TWO GROUPS OF ITEMS IN DISPUTE, ONE CONSISTING OF YOUR COMPANY'S BILLS ON WHICH OVERPAYMENTS AGGREGATING $21,027.83 WERE STATED BY THE TRANSPORTATION DIVISION AND THE OTHER GROUP CONSISTING OF BILLS ON WHICH OVERPAYMENTS AGGREGATING $11,492.75 WERE DETERMINED. THE FIRST GROUP OF BILLS COMPRISED SHIPMENTS DESCRIBED BY THE ADMINISTRATIVE OFFICE AS " RELIEF GOODS," WHILE THE OTHER GROUP COMPRISED SHIPMENTS DESCRIBED AS " MILITARY SUPPORT CARGO," WITH THE EXCEPTION OF ISBRANDTSEN COMPANY'S BILL " INV. NO. S2-45," COVERING TWO SHIPMENTS OF LINSEED OIL IN DRUMS SHIPPED BY THE DEPARTMENT OF AGRICULTURE, PRODUCTION AND MARKETING ADMINISTRATION, AS AGENTS FOR THE ECONOMIC COOPERATION ADMINISTRATION, FROM NEW YORK TO HAMBURG VIA THE S.S. CAPE RACE ON FEBRUARY 11, 1950. THIS CARGO WAS REPORTED AS BEING FOREIGN AID CARGO UNDER THE MUTUAL SECURITY ADMINISTRATION PROGRAM. WITH RESPECT TO THESE TWO CONSIGNMENTS, YOU HAVE APPARENTLY AGREED WITH THE AUDIT ACTION WHICH DETERMINED OVERPAYMENTS OF $448.48 AND $1,006.76, ON ISBRANDTSEN BILLS OF LADING NUMBERED 6 AND 7. YOUR LETTER OF OCTOBER 5, 1953, FILE FC-ASA, TRANSMITTED YOUR COMPANY'S CHECK NO. 47396, DATED OCTOBER 3, 1953, IN FULL PAYMENT OF THE STATED OVERPAYMENTS.

WITH RESPECT TO THE FIRST GROUP OF SHIPMENTS, CONSISTING OF RELIEF GOODS, THE RECORD SHOWS THAT THEY WERE MADE BY THE UNITED STATES ARMY DURING 1948 AND 1949, FROM THE ATLANTIC PORTS OF NEW YORK, PHILADELPHIA, BALTIMORE, NORTH CHARLESTON, AND JACKSONVILLE, TO BREMEN, GERMANY. THE CARGO SO SHIPPED CONSISTED OF CEREAL OATS, POTATO FLOUR, AND WHEAT FLOUR, IN BAGS. A GOVERNMENT BILL OF LADING WAS ISSUED IN EACH INSTANCE, AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THESE CONSIGNMENTS WERE OTHER THAN BERTH TERM SHIPMENTS IN COMMON CARRIER SERVICE. NO RATES ARE NAMED IN THESE GOVERNMENT BILLS OF LADING AND THERE ARE NO NOTATIONS THEREON, OR ON THE ARMY OCEAN MANIFESTS WITH THE RECORD, TO SHOW THAT ANY SPECIAL ARRANGEMENTS WERE MADE PRIOR TO LOADING FOR THE HANDLING OF THIS CARGO AT TERMS DIFFERING FROM THE PUBLISHED RATES SHOWN IN TARIFFS ISSUED BY ISBRANDTSEN COMPANY, INC.

EFFECTIVE NOVEMBER 14, 1947, YOUR NORTH ATLANTIC CONTINENTAL FREIGHT TARIFF NO. 2, APPLICABLE FROM NORTH ATLANTIC PORTS TO BREMEN, GERMANY, CONTAINED, IN RULE 24, THE FOLLOWING PROVISION:

RELIEF GOODS FROM GOVERNMENTAL AGENCIES, AND SHIPMENTS FROM CHARITABLE AND MISSIONARY ORGANIZATIONS:

ON SUCH SHIPMENTS, EXCEPT ON LIVESTOCK AND WHERE A SPECIAL RATE IS PROVIDED IN THE TARIFF, A REDUCTION OF 10 PERCENT OFF THE TARIFF RATE WILL BE ALLOWED. THE REDUCTION OF 10 PERCENT IS ALSO APPLICABLE ON MISCELLANEOUS CHARGES, SUCH AS AD VALOREM, MINIMUM BILL OF LADING, HEAVY LIFT CHARGES, EXTRA LENGTH CHARGES, ETC. YOUR NORTH ATLANTIC CONTINENTAL FREIGHT TARIFF NO. 3, CANCELLING TARIFF NO. 2, CONTAINS A SIMILAR PROVISION. ACCORDINGLY, THE MAXIMUM ALLOWABLE CHARGES FOR THE SERVICES RENDERED WERE COMPUTED ON THE BASIS OF THE TARIFF RATES, LESS 10 PERCENT, AS AUTHORIZED IN THOSE TARIFFS, RESULTING IN OVERPAYMENTS AGGREGATING $21,027.83 ON THESE SHIPMENTS.

AS UNDERSTOOD HERE, YOU OBJECT TO THE USE OF THE RATES IN THE TARIFFS MENTIONED ABOVE, CLAIMING THAT SPECIAL ARRANGEMENTS WERE MADE BY THE ARMY ON THE BASIS OF CHARTER PARTIES OR CONTRACTS FOR THE HANDLING OF THESE SHIPMENTS, WHEREBY IT WAS AGREED THAT PAYMENT WOULD BE BASED ON RATES PUBLISHED BY THE UNITED STATES LINES COMPANY AND THE WATERMAN STEAMSHIP COMPANY, DESIGNATED AS ,CONFERENCE LINES.' THE NAMED LINES ARE SAID TO HAVE CHARGED THE ARMY "CONFERENCE RATES" NAMED IN THE "CONFERENCE TARIFF," LESS 10 PERCENT, UNDER THE TERMS OF A " MODIFIED SPACE CHARTER PARTY.' SUPPORT OF YOUR CLAIM FOR THE HIGHER CHARGES, YOU SUBMITTED A COPY OF A LETTER DATED AUGUST 16, 1946, FROM COLONEL WILBUR S. ELLIOTT, CHIEF, WATER TRANSPORT SERVICE, OFFICE OF THE CHIEF OF TRANSPORTATION, WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY), ADDRESSED TO THE COMMANDING GENERAL, NEW YORK PORT OF EMBARKATION, ST AVENUE AND 58TH STREETS, BROOKLYN, NEW YORK. THAT LETTER DESCRIBES CERTAIN ARRANGEMENTS MADE BY THE OFFICE OF THE CHIEF OF TRANSPORTATION WITH THE UNITED STATES LINES COMPANY AND THE WATERMAN STEAMSHIP COMPANY WITH RESPECT TO SEVERAL TYPES OF OCEAN CARGO, SUCH TYPES BEING SPECIFIED AS GENERAL CARGO, REFRIGERATED CARGO, FULL CARGOES OF SACK GOODS, AND BULK CARGO. YOUR LETTER OF OCTOBER 7, 1953, FILE LA/1MSC, REFERS PARTICULARLY TO PARAGRAPH 4 ON PAGE 2 OF COLONEL ELLIOTT'S LETTER, DEALING WITH GENERAL CARGO, AS TENDING TO ESTABLISH THE EXISTENCE OF AN AGREEMENT BETWEEN THE ARMY AND YOUR COMPANY FOR THE TRANSPORTATION OF SHIPMENTS SUCH AS THOSE INVOLVED IN THE PRESENT INSTANCE. REFERENCE IS MADE IN THAT PARAGRAPH TO ARRANGEMENTS MADE WITH THOSE CARRIERS FOR THE MOVEMENT OF ARMY CARGOES FROM NORTH ATLANTIC PORTS TO NORTH CONTINENT PORTS ON A MODIFIED SPACE CHARTER PARTY. THE MODIFIED SPACE CHARTER PARTY IS STATED AS BEING OPEN TO PARTICIPATION BY OTHER AMERICAN BERTH OPERATORS WHO INDICATE WILLINGNESS TO AGREE ON THE TERMS AND RATES COVERED, IT BEING REQUIRED THAT "ALL NEGOTIATIONS WITH OPERATORS OTHER THAN THOSE AFOREMENTIONED SHOULD BE REFERRED TO" THE OFFICE OF THE CHIEF OF TRANSPORTATION. SUCH LANGUAGE SUGGESTS THAT THE MATTER OF PARTICIPATION IN THE AGREEMENTS MADE WITH THE UNITED STATES LINES COMPANY AND THE WATERMAN STEAMSHIP COMPANY WAS TO BE HANDLED IN A SOMEWHAT SIMILAR FORMAL MANNER, INVOLVING AT LEAST SIMPLE WRITTEN EVIDENCE OF PARTICIPATION. WRITTEN EVIDENCE IS AVAILABLE OF YOUR PARTICIPATION.

PARAGRAPHS 4A AND 4B, PAGE 2 OF THE LETTER, PERTAIN TO QUANTITIES OF GENERAL CARGO IN EXCESS OF SHIPLOADS OR GREATER QUANTITIES, 10,000 MEASUREMENT TONS BEING DESIGNATED AS THE MINIMUM MEASURE OF SHIPLOAD. WOULD APPEAR THAT THESE PROVISIONS FOR THE HANDLING OF GENERAL CARGO IN SHIPLOADS, WHICH INCLUDED PAYMENT ON A MEASUREMENT BASIS FOR THE VESSEL SPACE OCCUPIED, HAVE NO BEARING ON THE CHARGES FOR THE SHIPMENTS HERE INVOLVED, SINCE NONE OF THE BILLS OF LADING IN THIS CASE COVERED A QUANTITY AS GREAT AS A SHIPLOAD OF 10,000 MEASUREMENT TONS.

PARAGRAPH 6 OF THE LETTER MENTIONED PERTAINS TO " FULL CARGOES OF SACK GOODS," AND PARAGRAPH 7 HAS REFERENCE TO " BULK-CARGOES" IN FULL SHIPLOADS, NEITHER OF WHICH IS PERTINENT TO THE INVOLVED SHIPMENTS. PARAGRAPHS 8 THROUGH 11 OF THE LETTER OF AUGUST 16, 1946, ARE NOT SPECIFICALLY CONCERNED WITH BERTH TERM SHIPMENTS. IT IS NOTED THAT PARAGRAPH 5 OF THAT LETTER, RELATIVE TO LESS THAN ,FULL SHIP LOADS," AUTHORIZES THE NEW YORK PORT OF EMBARKATION TO CONTINUE BOOKING COMMERCIALLY ,WITH AMERICAN FLAG VESSELS AT THE CONFERENCE CONTRACT RATE PREVAILING.' THAT AUTHORIZATION WOULD SEEM TO BE LIMITED TO THE USE OF THOSE CARRIERS WHICH WERE PARTIES TO THE CONFERENCE TARIFF NAMING THE " CONFERENCE CONTRACT RATE PREVAILING.' YOUR COMPANY WAS NOT A MEMBER OF THE CONFERENCE INVOLVED AND WOULD NOT BE ENTITLED TO APPLY THE CONFERENCE RATE IN THE ABSENCE OF A SPECIFIC AGREEMENT BY THE ARMY TO THAT EFFECT. YOUR ATTEMPT TO ESTABLISH THE EXISTENCE OF SUCH AN AGREEMENT BY REFERENCE TO THE ABOVE ARMY LETTER OF AUGUST 16, 1946, DOES NOT SATISFY THE NEED FOR A SHOWING OF AN AGREEMENT BY THE ARMY TO PAY YOUR COMPANY MORE THAN CHARGEABLE UNDER YOUR TARIFFS. AS A MATTER OF FACT THE DEPARTMENT OF THE ARMY REPORTED, IN APRIL 1954, THAT A THOROUGH SEARCH OF THE FILES IN THE OFFICE OF THE CHIEF OF TRANSPORTATION DID NOT REVEAL ANY WRITTEN CONTRACTS OR AGREEMENTS BETWEEN THE GOVERNMENT AND ISBRANDTSEN COMPANY FOR THE CARRIAGE OF RELIEF CARGO ON ITS VESSELS ON BERTH TERM SHIPMENTS DURING THE YEARS 1947, 1948, AND 1949, ON TERMS DIFFERING FROM THE PUBLISHED ISBRANDTSEN TARIFFS. THE FACT THAT NO NEW TARIFFS WERE FILED BY YOUR COMPANY WITHIN THE THIRTY DAYS AFTER THE MOVEMENT OF THESE CONSIGNMENTS, AS REQUIRED BY THE UNITED STATES MARITIME COMMISSION AND SUCCESSOR AGENCIES, TENDS TO SUPPORT THE CONCLUSION THAT THE RATES SPECIFIED IN THE ISBRANDTSEN COMPANY TARIFFS ARE PROPERLY FOR USE IN DETERMINING THE CHARGES DUE FOR THE SERVICES IN QUESTION.

IT MAY BE NOTED THAT ONLY FOUR OF THE THIRTEEN SHIPMENTS IN QUESTION MOVED FROM THE NEW YORK PORT AREA, TWO ABOARD THE S. S. AMPAC LOS ANGELES, VOYAGE 3, IN JANUARY, 1949, AND TWO ABOARD THE S.S. GEORGE S. LONG, VOYAGE 1, IN DECEMBER 1948, AS COVERED BY YOUR BILLS NUMBERED S3 153, S3-154, S3- 155, S3-156, AND S3-157, AND S3-35, S3-36, S3-37, AND S3-38, SUBMITTED IN MARCH 1949. THE FOUR GOVERNMENT BILLS OF LADING COVERING THE ABOVE SHIPMENTS BEAR A NOTATION READING " ALL RATES AS PER TARIFF ON FILE IN THIS OFFICE," AND IN THOSE INSTANCES THE RELATED ARMY OCEAN MANIFESTS INDICATE THAT THE COMMODITY INVOLVED WOULD BE BILLED " AT BERTH RATES.' THIS NOTATION AS TO TARIFF RATES WILL BE DISCUSSED IN DETAIL HEREINAFTER, IN CONNECTION WITH THE SHIPMENTS SUBJECT TO THE CONTROL OF THE MILITARY SEA TRANSPORTATION SERVICE. THE SHIPPING RECORDS OTHERWISE DO NOT CONTAIN ANYTHING TO NEGATIVE THE CONCLUSION THAT THESE FOUR SHIPMENTS FROM NEW YORK, AS WELL AS THE NINE SHIPMENTS FROM THE OTHER ATLANTIC PORTS, WERE BERTH TERM SHIPMENTS IN COMMON CARRIER OCEAN TRADE, AND, AS SUCH, SUBJECT TO THE RATES ESTABLISHED BY YOUR COMPANY AND PUBLISHED IN TARIFFS DULY FILED WITH THE UNITED STATES MARITIME COMMISSION (NOW FEDERAL MARITIME BOARD). AND SINCE IT HAS BEEN ADMINISTRATIVELY REPORTED THAT THESE SHIPMENTS OF FOODSTUFFS WERE RELIEF GOODS, THERE WOULD SEEM TO BE NO REASON WHY THE 10 PERCENT REDUCTION AS PROVIDED IN THE PERTINENT ISBRANDTSEN COMPANY TARIFFS SHOULD NOT BE GIVEN EFFECT IN DETERMINING THE MAXIMUM ALLOWABLE CHARGES ON THESE SHIPMENTS. THE AUDIT ACTION TAKEN HERE WAS CONSISTENT WITH THIS VIEW.

WITH RESPECT TO THE MILITARY SUPPORT CARGO COVERED BY THE BILLS FOR WHICH OVERPAYMENTS AGGREGATING $11,492.75 WERE STATED AND COLLECTED IN THE AUDIT HERE, THE SECRETARY OF THE DEPARTMENT OF THE NAVY WAS REQUESTED TO MAKE AN INVESTIGATION AND REPORT IN THAT CONNECTION, SINCE THOSE SHIPMENTS, WITH THE EXCEPTION OF THE AFOREMENTIONED LINSEED OIL CONSIGNMENTS, AS TO WHICH THERE NO LONGER APPEARS TO BE ANY CONTROVERSY, WERE ARRANGED BY THE MILITARY SEA TRANSPORTATION SERVICE, HEREINAFTER DESIGNATED MSTS. THERE WAS FURNISHED WITH THE NAVY REPORT TO THIS OFFICE A COPY OF A SHIPPING CONTRACT WHICH MSTS NEGOTIATED WITH ISBRANDTSEN COMPANY, INC. (MST-90, EFFECTIVE JULY 1, 1950), TOGETHER WITH SIMILAR SHIPPING CONTRACTS NEGOTIATED WITH WATERMAN STEAMSHIP COMPANY AND WITH UNITED STATES LINES COMPANY. CONTRACT MST-90 PROVIDES FOR PAYMENT AT STATED RATES PER CUBIC FOOT OF VESSEL SPACE OCCUPIED ON GENERAL CARGO, UNBOXED VEHICLES AND OTHER UNUSUAL SIZED CARGO, UNBOXED GUNS, MAIL AND PARCEL POST PACKAGES, ETC., AND CONTAINS A PROVISION TO THE EFFECT THAT THE STATED RATES WILL NOT APPLY ON EXCEPTED CARGO, DEFINED AS BULK CARGO, BAGGED CARGO, AND COMMODITIES MEASURING 20 CUBIC FEET OR LESS PER LONG TON, WHICH ARE TO BE BOOKED AT "CURRENT APPLICABLE TARIFF RATES.' AS TO CARGO WHICH IS OFFERED AND CARRIED SUBJECT TO THE NEGOTIATED SPACE RATES SPECIFIED IN THE SHIPPING CONTRACTS, THE NAVY REPORT EXPLAINS THAT SUCH CARGOES ARE FORWARDED ON SHIPPING ORDERS ISSUED BY MSTS. CHARGES CLAIMED FOR SUCH SHIPMENTS ARE AUDITED IN THE NAVY AS TO THE ACCURACY AND PROPRIETY OF THE RATES APPLIED AND PROPER CHARGES DUE FOR THE SERVICES RENDERED ARE PAID TO THE CARRIERS BY MSTS. THE EXCEPTED CARGOES, AS INVOLVED IN THIS INSTANCE, ARE FORWARDED PURSUANT TO MSTS BOOKINGS ON GOVERNMENT BILLS OF LADING ISSUED BY THE DEPARTMENT OR AGENCY OF THE GOVERNMENT RESPONSIBLE FOR THE MOVEMENTS. CARRIERS' INVOICES FOR CHARGES ON SUCH EXCEPTED CARGOES ARE PAID BY MSTS PRIOR TO AUDIT AND SETTLEMENT IN THE TRANSPORTATION DIVISION OF THE GENERAL ACCOUNTING OFFICE.

IN YOUR SEVERAL LETTERS OF PROTEST AS TO THE AUDIT ACTION ON THESE SHIPMENTS, YOU HAVE STRESSED THE FACT THAT EACH OF THESE BILLS OF LADING, ALL OF WHICH WERE ISSUED BY THE NEW YORK PORT OF EMBARKATION, DEPARTMENT OF THE ARMY, WAS NOTED " ALL RATES AS PER TARIFF ON FILE IN THIS OFFICE.' IT APPEARS TO BE YOUR CONTENTION THAT THIS NOTATION, COUPLED WITH THE FACT, IF IT BE A FACT, THAT NO TARIFFS ISSUED BY ISBRANDTSEN COMPANY WERE EVER FILED WITH THE NEW YORK PORT OF EMBARKATION, IS INDICATIVE OF THE EXISTENCE OF AN AGREEMENT ON THE PART OF THE GOVERNMENT TO APPLY THE CONFERENCE CONTRACT RATES ON THESE SHIPMENTS. THE NAVY DEPARTMENT REPORT MENTIONED ABOVE CONTAINS A COPY OF A REPORT OF AN INVESTIGATION RECENTLY MADE WITH RESPECT TO THE PLACING OF THE CITED NOTATION ON GOVERNMENT BILLS OF LADING ISSUED BY THE TRANSPORTATION OFFICERS AT THE NEW YORK PORT OF EMBARKATION. IT IS REPORTED THAT THE PLACING OF SUCH A NOTATION ON GOVERNMENT BILLS OF LADING COVERING BERTH TERM OCEAN SHIPMENTS BEGAN WHEN THE NEW YORK PORT OF EMBARKATION FIRST BEGAN ISSUING GOVERNMENT BILLS OF LADING FOR SUCH SHIPMENTS BEFORE WORLD WAR II. AT THAT TIME, QUOTATIONS WERE SECURED AT THE TIME BOOKING ARRANGEMENTS WERE CONSUMMATED, BUT WHEN SUCH MOVEMENTS BECAME MORE NUMEROUS, TARIFFS OF SOME OF THE LINES WERE SECURED AND FILED THERE. THE ACTUAL BOOKING ARRANGEMENTS AS WELL AS THE LOADING OF CARGO WERE MADE UNDER THE SUPERVISION OF THE NEW YORK PORT OF EMBARKATION. THE SHORTHAND NOTATION " ALL RATES" WAS MADE ON A DRAFT OF THE BILL OF LADING PREPARED IN THE TERMINAL OPERATIONS DIVISION WHERE THE TARIFFS AND QUOTATIONS WERE ACCUMULATED AND FILED, AS A NOTICE TO THE OFFICE PREPARING THE SERIALIZED GOVERNMENT BILL OF LADING THAT THE FULL NOTATION SHOULD APPEAR ON THE BILL OF LADING. THE NAVY INVESTIGATIVE REPORT STATES THAT APPARENTLY NO CONTROL OR CHECK WAS MADE "AS TO WHETHER THE RATES" MENTIONED ON THE BILLS OF LADING WERE ,ACTUALLY ON FILE.' PARTICULAR TARIFFS OR RATES WERE INTENDED TO BE IDENTIFIED, AND THE PRACTICE DEVELOPED SO THAT EVENTUALLY THE BILLS OF LADING WERE ALL ANNOTATED IN THE SAME WAY, WITHOUT REGARD TO THE FACT OF THE AVAILABILITY OR ABSENCE OF A PARTICULAR TARIFF OR QUOTATION AT THE NEW YORK PORT OF EMBARKATION, IT BEING PRESUMED THAT ANY AUDIT OR CERTIFICATION OF THE CORRECTNESS OF THE BILLED CHARGES WOULD BE MADE BY MSTS. THE REPORT STATES FURTHER THAT THE NOTATION APPEARS TO HAVE NO PARTICULAR SIGNIFICANCE SINCE ALL PERSONNEL AGREED THAT THE CARRIER WOULD BE PAID IN ACCORDANCE WITH ITS TARIFF IN ANY EVENT.

WITH RESPECT TO YOUR CONTENTION THAT THE RATES PUBLISHED IN YOUR COMPANY'S NORTH ATLANTIC CONTINENTAL FREIGHT TARIFF NO. 3, DULY FILED WITH THE UNITED STATES MARITIME COMMISSION (NOW FEDERAL MARITIME BOARD), WERE NEVER INTENDED TO REPRESENT A HOLDING OUT OF THE AVAILABILITY OF COMMON CARRIER SERVICE TO THE PORT OF BREMERHAVEN, GERMANY, THE DESTINATION OF A NUMBER OF THE SHIPMENTS INVOLVED IN THIS CONTROVERSY, AND THAT THE RATES IN QUESTION SHOULD NOT BE APPLIED ON THESE SHIPMENTS BECAUSE THEY WERE LOADED AT THE DESIGNATED ARMY PIERS WITHIN THE HARBOR OF NEW YORK, INSTEAD OF AT THE DOCKS WHERE THE ISBRANDTSEN COMPANY CUSTOMARILY PLACES ITS VESSELS FOR LOADING BERTH TERM CARGO IN COMMON CARRIER SERVICE, NOTHING HAS BEEN FOUND IN THE CITED TARIFF TO JUSTIFY THE CONCLUSION WHICH YOU URGE TO BE WARRANTED BY THESE CIRCUMSTANCES.

THE TARIFF, BY ITS TERMS, OFFERS COMMON CARRIER BERTH TERM RATES FROM THE PORT OF NEW YORK TO THE PORT OF BREMERHAVEN, WITHOUT RESERVATION AS TO THE DOCKS OR PIERS AT WHICH LOADING WILL BE ACCOMPLISHED AT NEW YORK. SHIPPER IS ENTITLED TO RELY ON THE PLAIN TERMS OF A TARIFF WHICH IS ISSUED BY A CARRIER AND DULY FILED WITH THE APPROPRIATE REGULATORY AUTHORITY. THE WORDS USED IN TARIFFS ARE TO BE GIVEN THEIR ORDINARY AND CUSTOMARY MEANING, AND THE INTENTIONS OF THE TARIFF FRAMERS MAY NOT BE INVOKED TO NEGATIVE THE UNAMBIGUOUS TERMS OF A PUBLISHED TARIFF. IT IS NOTED THAT A PREDECESSOR AGENCY OF THE PRESENT FEDERAL MARITIME BOARD, IN DOCKET NO. 128, SECTION 19, INVESTIGATION, 1935, U.S.S.B. 470-503, ISSUED AN ORDER PROVIDING THAT NOTICE OF ALL CHANGES IN THE ESTABLISHED TARIFF RATES MUST BE FILED NOT LATER THAN 30 DAYS AFTER THE NEW RATES ARE MADE EFFECTIVE. THE GENERAL ACCOUNTING OFFICE, IN THE PERFORMANCE OF ITS DUTY RELATIVE TO THE SETTLEMENT OF CLAIMS BY OR AGAINST THE GOVERNMENT UNDER THE PROVISIONS OF 31 U.S.C. 71, WOULD NOT BE JUSTIFIED IN SANCTIONING THE USE OF PUBLIC FUNDS FOR THE PAYMENT OF CHARGES WHICH HAVE NOT BEEN ESTABLISHED AS HAVING BEEN AGREED UPON, EXCEED THE DULY PUBLISHED AND FILED TARIFF RATES, AND HAVE NOT BEEN SHOWN AS BEING FILED IN ACCORDANCE WITH THE REQUIREMENTS OF THE REGULATORY AGENCY HERE INVOLVED.

THE CASE OF THE AFGHAN-AMERICAN TRADING COMPANY, INC. V. ISBRANDTSEN COMPANY, INC., 3 F.M.B. 622, CITED BY YOU, IN WHICH THE FEDERAL MARITIME BOARD DENIED REPARATION TO A SHIPPER WHO HAD BEEN CHARGED A RATE HIGHER THAN THAT CONTEMPORANEOUSLY PUBLISHED BY YOUR COMPANY IN A TARIFF ON FILE WITH THE MARITIME COMMISSION, CONCERNS A SITUATION IN WHICH THE RATE CLAIMED BY YOUR COMPANY AND PAID BY THE SHIPPER WAS A RATE AGREED UPON IN ADVANCE OF THE MOVEMENT. THE SHIPPER DID NOT ALLEGE THAT THE EXCESS CHARGES OVER THE PUBLISHED RATE REPRESENTED AN OVERPAYMENT BUT THAT THE ACTION OF THE ISBRANDTSEN COMPANY IN CONTRACTING FOR MOVEMENT AT A RATE HIGHER THAN THAT PUBLISHED IN THE TARIFF, WITHOUT MORE, IN SUCH A CASE, DID NOT CONSTITUTE GROUNDS FOR AN AWARD OF REPARATION, THERE HAVING BEEN NO SHOWING OF UNDUE PREJUDICE OR UNJUST DISCRIMINATION. HOWEVER, THE BOARD POINTED OUT THAT ITS FAILURE TO AWARD REPARATION SHOULD NOT BE DEEMED TO RELAX THE REQUIREMENTS OF THE RULE ANNOUNCED IN DOCKET NO. 128, WHICH THE BOARD EXPECTS COMMON CARRIERS IN FOREIGN COMMERCE TO COMPLY WITH FAITHFULLY. IN THE PRESENT MATTER THE AUDIT ACTION IS PREMISED ON THE FACT THAT THE ISBRANDTSEN COMPANY'S TARIFFS PROVIDE THE ONLY AVAILABLE MEASURE OF THE ALLOWABLE CHARGES, WHICH ACTION IS SUPPORTED BY REPORTS FROM THE ADMINISTRATIVE AGENCIES CONCERNED THAT THERE WAS NO AGREEMENT BY THEM TO PAY YOUR COMPANY RATES AND CHARGES HIGHER THAN THOSE NAMED IN ITS TARIFFS. IT HAS BEEN THE UNBROKEN RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT AS TRUE, THE FACTS REPORTED ADMINISTRATIVELY, IN THE ABSENCE OF EVIDENCE OTHERWISE AVAILABLE, CLEARLY REQUIRING A CONTRARY CONCLUSION. 2 COMP. DEC. 242; 3 COMP. GEN. 51; 16 ID. 1105, 1106; 20 ID. 573, 578; AND 31 ID. 288. SEE, ALSO RIPLEY V. UNITED STATES, 223 U.S. 695.

ON DECEMBER 17, 1954, MR. JOHN J. O-CONNOR, ATTORNEY AND MR. A. S. ABDIRKEN, ASSISTANT TREASURER OF ISBRANDTSEN COMPANY, INC., CONFERRED WITH REPRESENTATIVES OF THIS OFFICE AS TO THIS CASE. AT THAT CONFERENCE IT WAS AGREED THAT FINAL DISPOSITION OF THE DECISION IN THIS MATTER WOULD BE HELD IN ABEYANCE PENDING THE SUBMISSION BY THE COMPANY OF COMPETENT EVIDENCE OF THE EXISTENCE OF AGREEMENTS SAID TO HAVE BEEN MADE IN ADVANCE OF THE MOVEMENTS FOR THE PAYMENT TO THE ISBRANDTSEN COMPANY OF CHARGES PREDICATED UPON THE CONFERENCE CONTRACT RATES. BY LETTER DATED JANUARY 5, 1955, MR. O-CONNOR SUBMITTED A SWORN STATEMENT DATED JANUARY 3, 1955, BY MATTHEW S. CRINKLEY, EXECUTIVE VICE-PRESIDENT OF THE COMPANY, WHICH, IN ESSENCE, RESTATES THE ARGUMENTS AND INFORMATION DISCUSSED ABOVE. FOR THE REASONS STATED HERE AND IN THE ENCLOSED COPY OF THE REPLY TO MR. O-CONNOR, THE PAPERS AND REPORTS FURNISHED BY THE CARRIER ARE NOT CONSIDERED AS CONSTITUTING ADEQUATE PROOF OF ARRANGEMENTS OR AGREEMENTS THAT ISBRANDTSEN COMPANY, INC., WAS TO BE PAID CHARGES IN EXCESS OF THOSE RESULTING FROM THE USE OF THE COMMON CARRIER RATES PUBLISHED IN ITS TARIFFS AND REGULARLY FILED WITH THE UNITED STATES MARITIME COMMISSION. FURTHERMORE, AS STATED ABOVE, THE ADMINISTRATIVE REPORTS AS TO THESE SHIPMENTS STATE THAT NO RECORDS OF ANY SUCH AGREEMENTS OR ARRANGEMENTS HAVE BEEN FOUND AFTER EXTENSIVE SEARCH AND INVESTIGATION, WHICH INCLUDED THE INTERROGATION OF PERSONNEL WHO WERE EMPLOYED IN THE NEW YORK PORT OF EMBARKATION AT THE TIME THESE SHIPMENTS WERE MADE AND WHO WERE CHARGED WITH THE DUTY OF ARRANGING FOR THE FORWARDING OF THESE GOODS. ACCORDINGLY, IT MUST BE CONCLUDED THAT THE AUDIT AND COLLECTION ACTIONS AGAINST WHICH YOUR COMPLAINTS ARE DIRECTED WERE PROPER. THIS CONCLUSION MAKES IT UNNECESSARY TO FURTHER CONSIDER THE PROPOSAL CONTAINED IN YOUR LETTER OF JUNE 17, 1954, THAT THE SUMS IN DISPUTE BE REFUNDED TO YOU UPON THE POSTING OF AN INDEMNITY BOND, PENDING A DECISION BY THIS OFFICE AS TO THE PROPRIETY OF THE AUDIT AND COLLECTION ACTION WITH RESPECT TO THESE SHIPMENTS.