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B-155961, JUL. 21, 1965, 45 COMP. GEN. 42

B-155961 Jul 21, 1965
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DO NOT APPLY TO THE TENDER AND THE LIABILITY OF THE CARRIER FOR DAMAGE TO EQUIPMENT TRANSPORTED AT THE REDUCED RATES IS THE FULL VALUE OF THE DAMAGE. THE FACT THAT THE TENDER IS SUBJECT TO THE RULES AND REGULATIONS OF VOLUME SHIPMENTS ON FILE WITH THE COMMISSION DOES NOT OPERATE TO INCORPORATE THE RELEASED VALUE RATES INTO THE TENDER TO CONVERT THE UNRELEASED QUOTATION RATES INTO AN OFFER OF A CHOICE OF RATES BASED ON VALUATION. IT IS YOUR VIEW THAT YOUR CLIENT'S LIABILITY FOR THE DAMAGE WAS LIMITED TO THE SUM OF $1. 182.50 BECAUSE THE PROPERTY WAS TENDERED FOR SHIPMENT AT A RELEASED VALUE NOT EXCEEDING $250 PER 100 POUNDS. WAS DESCRIBED GENERICALLY ON THE BILL OF LADING AS "OUTFITS. THE BILL OF LADING SHOWS THAT THE PROPERTY WAS TENDERED FOR SHIPMENT MAY 14.

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B-155961, JUL. 21, 1965, 45 COMP. GEN. 42

PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. - CARRIER LIABILITY - RELEASED VALUATION THE RELEASED VALUE RATES IN A TARIFF SUPPLEMENT REQUIRING SHIPPER STATEMENT OF DECLARED VALUE, FILED WITH THE INTERSTATE COMMERCE COMMISSION BY A MOTOR CARRIER SUBSEQUENT TO CONTRACTING TO TRANSPORT GOVERNMENT SHIPMENTS AT LOWER THAN TARIFF RATES PURSUANT TO 49 U.S.C. 22 AND 317, DO NOT APPLY TO THE TENDER AND THE LIABILITY OF THE CARRIER FOR DAMAGE TO EQUIPMENT TRANSPORTED AT THE REDUCED RATES IS THE FULL VALUE OF THE DAMAGE, THE INTENT THAT THE RELEASED VALUE RATES APPLY WITH THE TENDER RATES NOT APPEARING IN THE TARIFF SUPPLEMENT AND THE TENDER NOR OTHERWISE EVIDENCED, THE CARRIER HAVING ACCEPTED THE SHIPMENT WITHOUT THE REQUIRED VALUE DECLARATION ON THE FACE OF THE BILL OF LADING, AND THE FACT THAT THE TENDER IS SUBJECT TO THE RULES AND REGULATIONS OF VOLUME SHIPMENTS ON FILE WITH THE COMMISSION DOES NOT OPERATE TO INCORPORATE THE RELEASED VALUE RATES INTO THE TENDER TO CONVERT THE UNRELEASED QUOTATION RATES INTO AN OFFER OF A CHOICE OF RATES BASED ON VALUATION, AND ONLY A SINGLE RATE HAVING BEEN OFFERED, THE PRINTED RESTRICTED VALUE CONDITION ON THE BILL OF LADING DOES NOT LIMIT CARRIER LIABILITY.

TO PHINNEY, HALLMAN AND PULLEY, JULY 21, 1965:

WE REFER AGAIN TO YOUR LETTER OF FEBRUARY 11, 1965, CONCERNING A DEDUCTION MADE FROM THE REVENUE OF C AND H TRANSPORTATION CO., INC., BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, IN THE AMOUNT OF $7,557.87, TO SATISFY A CLAIM FOR DAMAGE TO A SHIPMENT OF GOVERNMENT PROPERTY TRANSPORTED UNDER BILL OF LADING B-4059954. IT IS YOUR VIEW THAT YOUR CLIENT'S LIABILITY FOR THE DAMAGE WAS LIMITED TO THE SUM OF $1,182.50 BECAUSE THE PROPERTY WAS TENDERED FOR SHIPMENT AT A RELEASED VALUE NOT EXCEEDING $250 PER 100 POUNDS.

THE SHIPMENT IN QUESTION CONSISTED OF A TRAILER-MOUNTED PULSE ACQUISITION RADAR UNIT (MODEL S/N 00107) AND AUXILIARY PARTS, WEIGHING 8,397 POUNDS, AND WAS DESCRIBED GENERICALLY ON THE BILL OF LADING AS "OUTFITS, RADIO MOUNTED ON TRAILER VEHICLES WITHOUT GENERATING UNITS.' THE BILL OF LADING SHOWS THAT THE PROPERTY WAS TENDERED FOR SHIPMENT MAY 14, 1962, AND WAS DELIVERED IN A DAMAGED CONDITION MAY 23, 1962. THERE IS NO STATEMENT OF DECLARED OR RELEASED VALUE ON THE FACE OF THE BILL OF LADING BUT THE REVERSE OF THE BILL OF LADING BEARS THE PRINTED STANDARD 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.'

THE FACE OF THE BILL OF LADING, IN THE SPACE DESIGNATED FOR THE SHOWING OF TARIFF OR SPECIAL RATE AUTHORITIES, BEARS THE NOTATION "C AND H 100L EFF 11 AUG 61," INDICATING THAT THE SHIPMENT WAS TENDERED UNDER THE TERMS AND CONDITIONS OF C AND H TRANSPORTATION CO., INC., TENDER NO. 100-L, I.C.C. NO. 38, CAPTIONED "RATE QUOTATIONS ON U.S. GOVERNMENT FREIGHT.' THIS TENDER (QUOTATION) WAS ISSUED JUNE 30, 1961, TO BECOME EFFECTIVE AUGUST 15, 1961. THE TENDER CONTAINED RATES LOWER THAN THE CARRIER'S TARIFF RATES THEN ON FILE WITH THE INTERSTATE COMMERCE COMMISSION AND WAS ISSUED UNDER AUTHORITY OF SECTIONS 22 AND 217 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, 49 U.S.C. 22, 317. THESE SECTIONS PERMIT MOTOR CARRIERS TO CONTRACT WITH THE UNITED STATES FOR TRANSPORTATION SERVICES AT RATES LESS THAN THOSE PUBLISHED AND FILED WITH THE INTERSTATE COMMERCE COMMISSION.

TENDER NO. 100-L CONSISTS OF SOME 69 PAGES. IT CONTAINS 26 ITEMS DESCRIBING IN DETAIL THE SCOPE OF THE OPERATING RIGHTS OF C AND H TRANSPORTATION CO., INC., AND ITS CONNECTING CARRIERS. IN ADDITION, IT CONTAINS SOME 35 ITEMS OF GENERAL RULES AND REGULATIONS DESCRIBING IN CONSIDERABLE DETAIL THE APPLICATION OF THE RATES SET FORTH IN THE TENDER. TWO ITEMS OF THE TENDER CONSIST OF COMMODITY DESCRIPTIONS AND THE RATES ARE FOUND IN TWO SECTIONS OF THE TENDER. THE FIRST SECTION SETS FORTH SPECIFIC COMMODITY RATES AND THE SECOND SECTION SETS FORTH DISTANCE COMMODITY RATES. A THIRD SECTION OF THE TENDER CONTAINS RULES AND REGULATIONS GOVERNING ACCESSORIAL SERVICES. DURING THE PERIOD FROM AUGUST 15, 1961, THROUGH NOVEMBER 26, 1962, TEN SUPPLEMENTS TO THE TENDER WERE ISSUED. NOWHERE IN THIS VOLUMINOUS MATERIAL IS THERE ANY INDICATION THAT ANY OF THE RATES IN THE TENDER ARE CONTINGENT UPON DECLARED OR RELEASED VALUE. THE TENDER DOES CONTAIN A PROVISION (ITEM NO. 130) READING AS FOLLOWS:

EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS TARIFF (SIC) IS GOVERNED BY SUCH RULES AND REGULATIONS, GOVERNING VOLUME SHIPMENTS, AS ARE LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. IT IS YOUR VIEW THAT THIS ITEM OF THE TENDER IS OPERATIVE TO INCORPORATE INTO THE TENDER ANY DECLARED OR RELEASED VALUE PROVISIONS PERTAINING TO THE CARRIER'S PUBLISHED TARIFF RATES.

AT THE TIME TENDER NO. 100-L WAS ISSUED AND BECAME EFFECTIVE, THE CARRIER DID NOT HAVE ON FILE WITH THE INTERSTATE COMMERCE COMMISSION ANY DECLARED OR RELEASED VALUE RATES ON RADAR EQUIPMENT. IT IS CLEAR, THEREFORE, THAT, AT THAT TIME, THE RATES IN THE TENDER WERE NOT CONTINGENT UPON ANY DECLARED OR RELEASED VALUE AND THAT THE CARRIER'S LIABILITY IN CASE OF LOSS OR DAMAGE TO A SHIPMENT OF THE KIND IN QUESTION WOULD HAVE BEEN THE ACTUAL VALUE OF THE LOSS OR DAMAGE SUSTAINED. BY ORDER DATED JULY 25, 1961, SERVED AUGUST 2, 1961, THE RELEASED RATES BOARD OF THE INTERSTATE COMMERCE COMMISSION AUTHORIZED C AND H TRANSPORTATION CO., AND ITS CONNECTIONS TO PUBLISH AND FILE RELEASED VALUE RATES ON, AMONG OTHER COMMODITIES,"ELECTRICAL, ELECTRONIC, RADAR, SONAR, AND SCIENTIFIC MACHINES AND MACHINERY.'

THIS ORDER WAS PERMISSIVE RATHER THAN MANDATORY AND THE CARRIER DID NOT FILE THE RELEASED VALUE RATES WITH THE COMMISSION UNTIL IT ISSUED SUPPLEMENT NO. 18 TO ITS LOCAL AND JOINT MOTOR FREIGHT COMMODITY TARIFF NO. 2-G, MF-I.C.C. NO. 32. THIS SUPPLEMENT WAS ISSUED AUGUST 17, 1961, TO BECOME EFFECTIVE SEPTEMBER 25, 1961. ITEM NO. 187 OF THIS SUPPLEMENT READS: COMMODITY RATES IN THIS TARIFF, SUBJECT TO MINIMUM WEIGHTS OF NOT LESS THAN 7,000 POUNDS, TO THE EXTENT THAT THEY APPLY FOR THE TRANSPORTATION OF: COMMODITIES WHICH, BECAUSE OF SIZE OR WEIGHT, REQUIRE THE USE OF SPECIAL EQUIPMENT, NAMELY: AIRPLANES, AIRPLANE ENGINES; MISSILES; MISSILE COMPONENTS; AND ELECTRICAL, ELECTRONIC, RADAR, SONAR AND SCIENTIFIC MACHINES AND MACHINERY, SAID RATES TO BE APPLICABLE ONLY WHEN THE VALUE OF THE PROPERTY AS DECLARED BY THE SHIPPER IN WRITING, OR AGREED UPON IN WRITING AS THE RELEASED VALUE THEREOF IS AS FOLLOWS:

TABLE:

RELEASED RATES ORDER NO. MC-480

RELEASED VALUATION RATE BASIS

RELEASED TO A VALUE NOT EXCEEDING BASE RATE.

$250.00 PER 100 POUNDS.

RELEASED TO A VALUE EXCEEDING BASE RATE WITH A VALUE

$250.00 PER 100 POUNDS. CHARGE OF 5 CENTS FOR

EACH $100.00 OR FRACTION

THEREOF BY WHICH THE

RELEASED VALUE EXCEEDS

THAT FOR WHICH THE BASE

RATE APPLIES. THE RELEASED VALUE MUST BE ENTERED ON THE SHIPPING ORDER AND BILL OF LADING IN THE FOLLOWING FORM:

THE AGREED OR DECLARED VALUE OF THE PROPERTY IS HEREBY SPECIFICALLY STATED BY THE SHIPPER TO BE NOT EXCEEDING ------------ PER 100 POUNDS.

IF SHIPPER FAILS OR DECLINES TO EXECUTE ABOVE STATEMENT, SHIPMENTS OF THE NAMED COMMODITIES WILL NOT BE ACCEPTED FOR TRANSPORTATION.

THE RELEASED VALUE SHALL BE DEEMED TO RELATE TO THE GROSS WEIGHT OF EACH SHIPPING PACKAGE SEPARATELY IF SHIPPED IN PACKAGES OR TO THE WEIGHT OF EACH LOOSE ARTICLE NOT ENCLOSED IN A PACKAGE, AND NOT TO THE SHIPMENT AS A WHOLE. IN CASE OF LOSS OR DAMAGE TO A PORTION OF THE CONTENTS OF A SHIPPING PACKAGE, THE AMOUNT RECOVERABLE WILL BE THE RELEASED VALUE PER 100 POUNDS MULTIPLIED BY THE GROSS WEIGHT OF THE PACKAGE BUT NOT MORE THAN THE ACTUAL LOSS OR DAMAGE.

RATES HEREIN BASED ON RELEASED VALUE HAVE BEEN AUTHORIZED BY THE INTERSTATE COMMERCE COMMISSION IN RELEASED RATES ORDER NO. MC-480 OF JULY 25, 1961, SUBJECT TO COMPLAINT OR SUSPENSION.

IT IS TO BE OBSERVED THAT THE ABOVE ITEM IS NOT STATED IN SUCH GENERAL TERMS AS TO HAVE APPLICATION TO ALL VOLUME SHIPMENTS TRANSPORTED BY THE CARRIER BUT IS RESTRICTED EXPRESSLY TO SPECIFIED COMMODITIES AND TO APPLICATION ONLY IN CONNECTION WITH THE RATES PROVIDED IN THE TARIFF IN WHICH THE ITEM APPEARS. FURTHERMORE, THE ITEM REQUIRES A SHIPPER TO EXECUTE A STATEMENT OF VALUE IN A SPECIFIED FORM. IN THE EVENT THE SHIPPER FAILS OR DECLINES TO EXECUTE SUCH STATEMENT, THE CARRIER IS REQUIRED TO REFUSE THE SHIPMENT. THE QUESTION, THEN, IS WHETHER ITEM NO. 130 OF THE RATE QUOTATION WAS LEGALLY OPERATIVE TO INCORPORATE THE RELEASED VALUE PROVISIONS OF THE TARIFF INTO THE QUOTATION AND THEREBY CONVERT THE OTHERWISE UNRELEASED QUOTATION RATES INTO AN OFFER OF A CHOICE OF RATES BASED ON VALUATION.

IT IS, OF COURSE, THE LAW THAT PARTIES MAY INCORPORATE BY REFERENCE INTO THEIR CONTRACT THE TERMS OF SOME OTHER DOCUMENT, BUT IT IS SAID THAT EACH CASE MUST TURN ON ITS FACTS AND FOR THE TERMS OF ANOTHER DOCUMENT TO BE INCORPORATED BY REFERENCE INTO THE CONTRACT EXECUTED BY THE PARTIES THE REFERENCE MUST BE CLEAR AND UNEQUIVOCAL. WILLISTON ON CONTRACTS, 3D ED., SECTION 28; RESTATEMENT, CONTRACTS, SECTION 235; SCOTT'S VALLEY FRUIT EXCHANGE V. GROWERS REFRIGERATION ., INC., CAL., 184 P.2D 183 (1947).

THE UNITED STATES COURT OF CLAIMS, IN CASES OF CLAIMED INCORPORATIONS BY REFERENCE THROUGH SO-CALLED OMNIBUS CLAUSES OF SECTION 22 QUOTATIONS, HAS STATED THAT, IN ORDER TO COMBINE A SECTION 22 QUOTATION WITH ANOTHER QUOTATION, OR WITH A REGULAR TARIFF PROVISION, THE INTENTION OF THE PARTIES TO ACCOMPLISH THIS PURPOSE MUST BE APPARENT EITHER BY EXPRESS PROVISION OR BY NECESSARY INFERENCE. GULF, MOBILE AND OHIO R.R.CO. V. UNITED STATES, 160 CT.CL. 493, 312 F.2D 921 (1963). SEE ALSO GREAT NORTHERN RY.CO. V. UNITED STATES, 156 CT.CL. 332, 312 F.2D 901 (1962); UNION PACIFIC R.R.CO. V. UNITED STATES, 152 CT.CL. 523, 287 F.2D 593 (1961); GREAT NORTHERN RY.CO. V. UNITED STATES, 160 CT.CL. 225, 312 F.2D 906 (1963); PENNSYLVANIA R.R.CO. V. UNITED STATES, 165 CT.CL. 1 (1964). IN MOST OF THESE CASES, THE COURT DECLINED TO APPLY THE RULES AND REGULATIONS OF PUBLISHED TARIFFS IN CONJUNCTION WITH THE SECTION 22 QUOTATIONS UNDER CONSIDERATION ALTHOUGH THE QUOTATION OMNIBUS CLAUSES THERE CONSIDERED WERE FULLY AS BROAD IN SCOPE AS ITEM NO. 130 OF TENDER NO. 100-L.

ITEM NO. 130 OF THE TENDER DOES NOT REFER TO ANY PARTICULAR CARRIER TARIFF OR RULE BUT TO "SUCH RULES AND REGULATIONS, GOVERNING VOLUME SHIPMENTS, AS ARE LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.' A LITERAL INTERPRETATION OF THE LANGUAGE WOULD REQUIRE CONSIDERATION OF EVERY RULE AND REGULATION PERTAINING TO VOLUME SHIPMENTS PUBLISHED AND FILED BY ANY COMMON CARRIER SUBJECT TO REGULATION BY THE INTERSTATE COMMERCE COMMISSION. IN ALL PROBABILITY THE REFERENCE WAS NOT INTENDED TO BE THAT BROAD IN SCOPE BUT TO BE LIMITED TO RULES AND REGULATIONS FOR ACCOUNT OF C AND H TRANSPORTATION CO., INC., AND THEN ONLY TO SUCH RULES AND REGULATIONS AS ARE NOT INCONSISTENT WITH THE BASIS OF RATES OFFERED IN THE TENDER. ALTHOUGH DESIGNATED IN THE TARIFF AS GENERAL RULE, ITEM NO. 187 IN FACT PRESCRIBES RELEASED VALUE RATES FOR SPECIFIED COMMODITIES. IT IS DOUBTFUL WHETHER THE ITEM CAN BE CHARACTERIZED AS A GENERAL RULE OR REGULATION WITHIN THE MEANING OF ITEM NO. 130.

THE INTERSTATE COMMERCE COMMISSION FREQUENTLY HAS STATED THAT RELEASED AND UNRELEASED RATES ARE SEPARATE AND DISTINCT ITEMS FROM A TRANSPORTATION STANDPOINT. DOW CHEMICAL CO. V. CHESAPEAKE AND O.RY.CO., 306 I.C.C. 403 (1959); UPJOHN CO. V. PENNSYLVANIA R.CO., 306 I.C.C. 325 (1959); AMERICAN HOME FOODS, INC. V. DELAWARE, L.AND W.R. CO., 303 I.C.C. 655 (1958). CONSEQUENTLY, THE PRESCRIPTION OF AN UNRELEASED EXCEPTIONS RATING FOR A GIVEN COMMODITY IS NOT INCOMPATIBLE WITH, AND DOES NOT PRECLUDE, THE CONTEMPORARY MAINTENANCE OF A RELEASE CLASSIFICATION RATING ON THE SAME COMMODITY. IT WOULD SEEM TO FOLLOW, THEREFORE, IN THE INSTANT CASE, THAT THE MAINTENANCE BY THE CARRIER OF RELEASED VALUE TARIFF RATES DOES NOT IN AND OF ITSELF COMPEL A CONCLUSION THAT THE RATES IN THE TENDER WERE INTENDED TO BE SIMILARLY LIMITED.

AS STATED ABOVE, TENDER NO. 100-L CONSISTS OF SOME 69 PAGES AND IS REPLETE WITH RULES AND REGULATIONS GOVERNING THE APPLICATION OF THE RATES NAMED THEREIN. NOWHERE IN THE TENDER IS THERE ANY INDICATION THAT ANY OF THE RATES OFFERED ARE DEPENDENT UPON RELEASED VALUATION. AT THE TIME THE TENDER WAS ISSUED THE RATES OFFERED UNQUESTIONABLY WERE UNRELEASED RATES. IF THE SUBSEQUENT PUBLICATION OF ITEM NO. 187 IN SUPPLEMENT NO. 18 TO THE CARRIER'S PUBLISHED TARIFF WAS INTENDED ALSO AS AN AMENDMENT TO THE TENDER SO AS TO CONVERT THE UNRELEASED RATES ON RADAR EQUIPMENT TO RELEASED RATES BASED ON DECLARED VALUE, IT WOULD SEEM THAT SOME OVERT MANIFESTATION OF THAT INTENTION SHOULD HAVE BEEN SHOWN BY SUPPLEMENT TO THE TENDER. FURTHERMORE, THE ACCEPTANCE BY THE CARRIER OF THE SHIPMENT IN QUESTION WITHOUT REQUIRING A SPECIFIC DECLARATION OF VALUE IN THE EXACT FORM SPECIFIED BY ITEM NO. 187 SEEMS FURTHER EVIDENCE THAT THE ITEM WAS NOT INTENDED TO HAVE APPLICATION WITH THE TENDER RATES.

UPON CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AS A WHOLE, WE DO NOT FIND ANY TANGIBLE EVIDENCE, EITHER BY EXPRESS PROVISION OR BY NECESSARY INFERENCE, THAT THE TENDER OFFERED A CHOICE OF RATES ON RADAR EQUIPMENT BASED ON DECLARED VALUE. THERE BEING, IN OUR OPINION, ONLY THE OFFER OF A SINGLE RATE, IT FOLLOWS THAT CONDITION 5 OF THE BILL OF LADING COULD NOT HAVE BEEN OPERATIVE AS A LIMITATION OF CARRIER LIABILITY. UNION PACIFIC R.R.CO. V. BURKE, 255 U.S. 317 (1921). BELIEVE THE CARRIER WAS LIABLE FOR THE FULL VALUE OF THE DAMAGE TO THE SHIPMENT IN QUESTION AND THAT THE SET-OFF EFFECTED BY THE FINANCE OFFICE THUS WAS PROPER. ACCORDINGLY, YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE AMOUNT OF THE SET-OFF AND THE AMOUNT CONCEDED AS DUE IS DISALLOWED.

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