B-147576, DEC. 13, 1962

B-147576, DEC. 13, 1962

TO M.R. AND R. TRUCKING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1962, REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 1, 1962, WHICH SUSTAINED THE SETTLEMENT ACTION DISALLOWING YOUR CLAIM ON BILL NO. SUP 3510-60 FOR$119.39 ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A SHIPMENT OR INTERNAL COMBUSTION ENGINES, NOI, OPPOSED CYLINDER TYPE FOR AIRCRAFT, FROM SAN ANTONIO, TEXAS, TO MARIANNA, FLORIDA, UNDER GOVERNMENT BILL OF LADING AF-554761 DURING JANUARY 1960.

YOU ASK THAT THE COMPTROLLER GENERAL, HIMSELF, CONSIDER YOUR APPEAL "SO AS TO EXHAUST EVERY POSSIBLE REMEDY WITHIN THE REALM" OF OUR OFFICE. PURSUANT TO SECTION 302 OF THE BUDGET AND ACCOUNTING ACT OF 1921, 42 STAT. 23, AS AMENDED, 31 U.S.C. 42, THE COMPTROLLER GENERAL HAS ASSIGNED TO THE ASSISTANT COMPTROLLER GENERAL THE RENDERING OF DECISIONS TO CLAIMANTS. DECISIONS RENDERED BY THE ASSISTANT COMPTROLLER GENERAL HAVE THE SAME EFFECT AND ARE AS BINDING AS THOSE RENDERED BY THE COMPTROLLER GENERAL PERSONALLY. SEE 31 COMP. GEN. 596.

THE DISPUTE HERE CONCERNS WHETHER THE SUBJECT BILL OF LADING WAS SO ANNOTATED AS TO MEET THE REQUIREMENTS OF ITEM 61245 OF NATIONAL MOTOR FREIGHT CLASSIFICATION A-4, THEREBY ENTITLING THE GOVERNMENT TO THE LOWER TRANSPORTATION CHARGES APPLICABLE TO SHIPMENTS RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND. ITEM 61245 REQUIRED THAT THERE BE ENTERED ON THE SHIPPING ORDER AND BILL OF LADING A STATEMENT IN THE FOLLOWING FORM:

"* * * THE AGREED OR DECLARED VALUE OF THE PROPERTY IS HEREBY SPECIFICALLY STATED BY THE SHIPPER TO BE NOT EXCEEDING ... PER POUND FOR EACH ARTICLE. * * *"

THE FACE OF THE SUBJECT BILL OF LADING WAS ANNOTATED "RELEASED AT THE MAXIMUM VALUE APPLICABLE TO THE LOWEST PUBLISHED RATE" AND THE BACK PROVIDED IN CONDITION NO. 5 THAT "THIS SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INDICATED ON THE FACE HEREOF.'

IN OUR DECISION OF JUNE 1, 1962, WE HELD THAT SUBSTANTIAL COMPLIANCE TO TARIFF RULES REQUIRING NOTATIONS ON BILLS OF LADING WAS ALL THAT WAS NECESSARY AND THAT THE SUBJECT BILL OF LADING MET SUCH A TEST. WE CITED IN SUPPORT OF OUR DECISION THE CASES OF CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270 (1962) AND CLARK THREAD COMPANY, INC. V. PILOT FREIGHT CARRIER, INC., 62 M.C.C. 185 (1953). ALSO, WE POINTED OUT THAT THE SUFFICIENCY OF SIMILAR RELEASED VALUATION ANNOTATIONS CONTAINED ON GOVERNMENT BILLS OF LADING WAS AT ISSUE IN STRICKLAND TRANSPORTATION COMPANY V. UNITED STATES, CIVIL ACTION NO. 8662, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION.

THE BASIC ISSUE IN THE STRICKLAND CASE WAS WHETHER UNRELEASED VALUATION EXCEPTIONS RATINGS OR RELEASED VALUATION CLASSIFICATION RATINGS APPLIED TO SHIPMENTS OF RADIAL CYLINDER OR JET PROPULSION TYPE AIRPLANE ENGINES--- AN ISSUE SIMILAR IN PRINCIPLE TO THAT BEFORE THE INTERSTATE COMMERCE COMMISSION IN THE CASE OF UPJOHN COMPANY V. PENNSYLVANIA RAILROAD COMPANY, 306 I.C.C. 325 (1959), MENTIONED IN OUR PRIOR DECISION IN THIS MATTER. THE CARRIER, HOWEVER, RAISED AS A SECONDARY ISSUE IN THE STRICKLAND CASE THE QUESTION OF WHETHER THE ANNOTATIONS ON THE GOVERNMENT BILLS OF LADING INVOLVED MET THE ANNOTATION REQUIREMENTS OF ITEM 61245 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-3 (THESE ANNOTATION REQUIREMENTS ARE IDENTICAL TO THOSE OF ITEM 61245 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, ON WHICH YOU NOW RELY). INVOLVED IN THIS SUIT WERE OVER 200 GOVERNMENT BILLS OF LADING CONTAINING ON THEIR FACE ONE OF NINE DIFFERENT TYPES OF RELEASED VALUATION ANNOTATION--- ONE TYPE OF ANNOTATION BEING PRACTICALLY THE SAME AS THAT ON THE BILL OF LADING HERE CONCERNED--- OR NONE AT ALL, BEING IN EVERY INSTANCE SUBJECT TO CONDITION NO. 5 ON THE BACK OF THE GOVERNMENT BILL OF LADING. THE COURT STATED THAT "CONDITION 5 ON THE BILLS OF LADING IS SUFFICIENT TO INVOKE APPLICATION OF THE RELEASED VALUATION PROVISIONS ON THE SHIPMENTS BEFORE THE COURT" AND AWARDED JUDGMENT FOR THE GOVERNMENT.

AS YOU RECOGNIZE, OUR AUTHORITY TO DEDUCT FREIGHT TRANSPORTATION OVERCHARGES IS SET OUT IN SECTION 322 OF THE TRANSPORTATION ACT OF 1940,AS AMENDED, 49 U.S.C. 66. HOWEVER, THE BURDEN OF FURNISHING PROOF TO SATISFACTORILY ESTABLISH CLAIMS AGAINST THE UNITED STATES FOR TRANSPORTATION CHARGES HAS ALWAYS BEEN ON THE CARRIER, THIS BEING THE CASE BEFORE AND AFTER THE PASSAGE OF THE TRANSPORTATION ACT OF 1940, BY WHICH LAW CARRIERS' FREIGHT BILLS WERE REQUIRED TO BE PAID PRIOR TO AUDIT BY THE GENERAL ACCOUNTING OFFICE. CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884) AND UNITED STATES V. NEW YORK, N.H. AND H. R.R. CO., 355 U.S. 253 (1957). IN THE LIGHT OF THE STRICKLAND AND OTHER CASES, WE FEEL THAT YOU HAVE NOT MET THIS BURDEN AND OUR DEDUCTION ACTION WAS CORRECT IN REDUCING THE CHARGES ON THE SHIPMENT CONCERNED TO THE BASIS APPLICABLE FOR THE TRANSPORTATION OF INTERNAL COMBUSTION ENGINES RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND. ACCORDINGLY, OUR DECISION OF JUNE 1, 1962, IS AFFIRMED.