B-142112, MAR. 9, 1962

B-142112, MAR. 9, 1962

TO EAST TEXAS MOTOR FREIGHT:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12, 1961, WHICH IS IN EFFECT A REQUEST FOR THE FURTHER CONSIDERATION OF OUR DECISION OF DECEMBER 6, 1961, B-142112, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM TD60-8892 (TD60-8895), BILL NO. 14098-A, FOR $70.63 IN ADDITION TO $961.17 PREVIOUSLY ALLOWED YOU FOR THE TRANSPORTATION OF A SHIPMENT OF MACHINE PARTS, NOIBN, AND ONE TEST STAND, FROM EASTHARTFORD, CONNECTICUT, TO SAN ANTONIO, TEXAS, UNDER BILL OF LADING NO. N 34356812, DATED OCTOBER 7, 1959.

YOUR LETTER INDICATES SOME MISUNDERSTANDING OF THE ORGANIZATION OF THE GENERAL ACCOUNTING OFFICE AND ITS PROCEDURES FOR THE AUDIT OF PAYMENTS FOR TRANSPORTATION FURNISHED THE UNITED STATES, THE EXAMINATION OF CLAIMS FOR AMOUNTS IN EXCESS OF THOSE ALLOWED FOR THE TRANSPORTATION, AND REVIEW OF THE SETTLEMENTS MADE BY THE TRANSPORTATION DIVISION.

THE GENERAL ACCOUNTING OFFICE IS HEADED BY THE COMPTROLLER GENERAL OF THE UNITED STATES AND THE OFFICE DECISIONS ON REQUESTS FOR REVIEW OF SETTLEMENTS BY THE TRANSPORTATION DIVISION OF THE GENERAL ACCOUNTING OFFICE ARE PREPARED IN THE OFFICE OF GENERAL COUNSEL FOR SIGNATURE OF THE COMPTROLLER OR ASSISTANT COMPTROLLER GENERAL.

THE GENERAL PROCEDURES FOR THE AUDIT OF PAYMENTS MADE TO CARRIERS FOR TRANSPORTATION FURNISHED THE UNITED STATES CONTEMPLATE THAT OUR TRANSPORTATION DIVISION WILL, UPON DISCOVERY OF AN OVERCHARGE, ISSUE A STATEMENT OF OVERCHARGE (FORM 1003) NOTIFYING THE CARRIER AND REQUESTING REFUND OF THE AMOUNT OVERCHARGED. IF THE CARRIER DISAGREES WITH THE AUDIT ACTION TAKEN (THE FORM 1003), IT MAY PROTEST TO THE TRANSPORTATION DIVISION AS TO ITS ACTION. IF THE PROTEST IS CONSIDERED NOT TO WARRANT REVISION OF THE FORM 1003 THE CARRIER IS SO ADVISED AND UNLESS REFUND IS MADE, THE AMOUNT OVERCHARGED IS DEDUCTED FROM AMOUNTS OTHERWISE DUE THE CARRIER AS AUTHORIZED BY 49 U.S.C. 66. WHEN SUCH DEDUCTIONS ARE MADE THE CARRIER MAY FILE A SUPPLEMENTAL BILL TO RECLAIM ALL OR ANY PART OF THE AMOUNT DEDUCTED AND SUCH BILL WILL BE MADE THE SUBJECT OF A SETTLEMENT CERTIFICATE, EITHER ALLOWING THE CLAIM IN WHOLE OR IN PART, OR DISALLOWING THE CLAIM ENTIRELY. IF THE CARRIER DOES NOT AGREE WITH THE SETTLEMENT ACTION SO TAKEN ON ITS CLAIM, THE CARRIER MAY THEN REQUEST A REVIEW BY THE DIRECTOR, TRANSPORTATION DIVISION, OR THE COMPTROLLER GENERAL OF THE ACTION TAKEN IN THE SETTLEMENT SETTING FORTH IN DETAIL THE LEGAL, TECHNICAL AND FACTUAL REASONS URGED AS WARRANTING A REVISION OF THE ACTION TAKEN. SEE 31 U.S.C. 74. THE PROCEDURES FOR RECONSIDERATION AND REVIEW OF TRANSPORTATION CLAIM SETTLEMENTS ARE OUTLINED IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, PART 55. FOR YOUR READY REFERENCE WE QUOTE SECTION 55.1 AND 55.2 THEREOF:

"55.1 PROTEST TO SETTLEMENT ACTION. IF A CLAIMANT DISAGREES WITH THE ACTION TAKEN BY THE TRANSPORTATION DIVISION UPON ITS CLAIM, A LETTER MAY BE ADDRESSED TO THE DIRECTOR, TRANSPORTATION DIVISION, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., REQUESTING RECONSIDERATION OF SUCH ACTION. SUCH LETTERS SHOULD SET FORTH IN DETAIL THE LEGAL, TECHNICAL, AND FACTUAL DATA AND FURNISH SUCH ADDITIONAL INFORMATION AND DOCUMENTATION AS IS RELIED UPON TO RAISE SUBSTANTIVE DOUBT AS TO THE CLAIM SETTLEMENT ACTION.

"55.2 REVIEW BY THE COMPTROLLER GENERAL OF THE UNITED STATES. IF THE CLAIMANT DESIRES A REVIEW OF THE FINAL ACTION TAKEN BY THE TRANSPORTATION DIVISION UPON SETTLEMENT, HE MAY REQUEST REVIEW BY THE COMPTROLLER GENERAL. THE REQUEST SHOULD BE ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., AND SHOULD SET FORTH IN DETAIL THE LEGAL, TECHNICAL, AND FACTUAL REASONS URGED AS WARRANTING REVISION OF THE ACTION EN.'

SINCE SETTLEMENT ACTION ON YOUR SUPPLEMENTAL CLAIM, PER BILL 14098 A, HAD NOT BEEN TAKEN BY OUR TRANSPORTATION DIVISION AT THE TIME YOUR LETTER OF FEBRUARY 15, 1961, WAS RECEIVED, IT WAS ASSOCIATED WITH YOUR SUPPLEMENTAL BILL AND YOUR CLAIM WAS DISALLOWED BY THAT DIVISION IN SETTLEMENT CERTIFICATE DATED JUNE 29, 1961 (CLAIM TK-720513). THEREAFTER, UPON RECEIPT OF YOUR LETTER OF JULY 7, 1961, REQUESTING REVIEW OF THAT SETTLEMENT CERTIFICATE, THE ENTIRE RECORD WAS ASSEMBLED, REVIEWED AND YOU WERE INFORMED IN DECISION OF DECEMBER 6, 1961, B-142112, OF OUR VIEWS IN THE MATTER. SUCH DECISION SIGNED BY THE HEAD OF THE GENERAL ACCOUNTING OFFICE WAS PREPARED IN OUR OFFICE OF THE GENERAL COUNSEL.

WITH RESPECT TO YOUR COMMENTS CONCERNING THE ISSUANCE OF THE GOVERNMENT BILL OF LADING, THE DUTY OF ISSUING APPROPRIATE BILLS OF LADING RESTS UPON THE CARRIER, NOT THE SHIPPER. 49 U.S.C. 20 (11); 49 U.S.C. 319. THE FACT THAT IT IS NOT UNCOMMON FOR SHIPPERS TO PREPARE BILLS OF LADING FOR EXECUTION BY THE CARRIERS' AGENTS DOES NOT RELIEVE THE CARRIER OF THAT DUTY. FURTHER, WHERE SPECIAL SERVICES ARE REQUESTED, THE OBLIGATION RESTS UPON THE CARRIERS' AGENTS TO REFRAIN FROM EXECUTING BILLS OF LADING WHICH CONTAIN ANNOTATIONS WHICH ARE NOT IN STRICT ACCORD WITH THE TERMS OF THE TARIFF. SEE SOUTHGATE BROKERAGE COMPANY, INC. V. LEHIGH VALLEY RAILROAD COMPANY, 274 I.C.C. 245, 247; EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY COMPANY, 234 I.C.C. 441, 442; PARKERSBURG RIG AND REEL CO. V. BALTIMORE AND OHIO RAILROAD CO., 234 I.C.C. 105, 110; AND SOUTHEAST SHIPPERS ASSOCIATION V. ASSOCIATED TRANSPORT, INC., 61 M.C.C. 645, 651-652. IT WAS THE DUTY OF THE INITIAL CARRIER'S AGENT TO OBTAIN FULL AND DEFINITE INSTRUCTIONS FROM THE SHIPPER AS TO SERVICES DESIRED AND TO SEE THAT ANNOTATIONS STRICTLY IN ACCORDANCE WITH THE TARIFF PROVISIONS WERE PLACED ON THE BILL OF LADING. THE GOVERNMENT CANNOT BE CHARGED WITH THE NEGLECT OF DUTY BY THE CARRIER'S AGENT. SEE WASHINGTON BUILDING LIME COMPANY V. BALTIMORE AND OHIO RAILROAD COMPANY, 173 I.C.C. 370; AND REA-PATTERSON MILLING COMPANY V. MISSOURI PACIFIC RAILROAD CO., 203 I.C.C. 425-426/427.

THE FACTS OF RECORD CONCERNING THIS SHIPMENT ARE FULLY SET FORTH IN OUR DECISION OF DECEMBER 6, 1961, B-142112. THE ADMINISTRATIVE REPORT OF THE SHIPPING AGENCY SHOWS THAT THE TRUCK CONTAINING THE SHIPMENT "WAS LOADED TO FULL VISIBLE CAPACITY.' THUS, IT WAS A TRUCKLOAD SHIPMENT AND YOU HAVE BEEN PAID CHARGES AS FOR A TRUCKLOAD SHIPMENT. IT IS OUR VIEW THAT, FOLLOWING THE PRINCIPLE IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, INC., 303 I.C.C. 576, HOLDING THAT EXCLUSIVE USE CHARGES--- WHICH ARE DESIGNED TO COVER TRUCKLOAD SERVICE ON LESS-THAN-TRUCKLOAD SHIPMENTS-- - ARE INAPPLICABLE TO TRUCKLOAD SHIPMENTS, NO MORE THAN THE TRUCKLOAD CHARGES PROPERLY ARE ALLOWABLE. YOUR CLAIM FOR EXCLUSIVE-USE CHARGES ON THIS SHIPMENT IS BASED UPON THE PROVISIONS OF ITEM 370-C IN SUPPLEMENT 56 TO EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION, INC., AGENT, MOTOR FREIGHT TARIFF NO. 32-A, MF I.C.C. NO. A-139. THAT ITEM REQUIRES, IN PERTINENT PART, THAT:

"EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS:

"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER.'

SHIPPERS SIGNATURE.'

THE QUOTED NOTATION IS A RULE OF THE TARIFF AND ITS INSERTION ON THE BILL OF LADING IS A CONDITION PRECEDENT TO FURNISHING EXCLUSIVE USE OF VEHICLE. IN THE CASE OF STANLEY HOME PRODUCTS V. INTERSTATE MOTOR FREIGHT SYSTEM, 67 M.C.C. 732, 734, IT IS STATED THAT:

"WHERE TARIFF PROVISIONS REQUIRE THE MAKING OF A PARTICULAR NOTATION ON THE BILL OF LADING AS A CONDITION PRECEDENT TO THE USE OF A RATE, THE SHIPPER (OR THE CARRIER) IS BOUND BY SUCH PROVISIONS, AND NONCOMPLIANCE THEREWITH GENERALLY AFFORDS NO BASIS FOR A FINDING THAT THE LEGALLY APPLICABLE RATE IS UNREASONABLE OR UNJUSTLY DISCRIMINATORY. EMBASSY DISTRIBUTING CO., INC. V. WESTERN CARLOADING CO., 280 I.C.C. 229, 234.'

SEE ALSO IN THIS CONNECTION NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD COMPANY OF NEW JERSEY, 216 I.C.C. 105, 107. THE TARIFF RULE WITH RESPECT TO FURNISHING EXCLUSIVE USE OF A VEHICLE IS SPECIFIC AND UNAMBIGUOUS IN ITS REQUIREMENTS, AND YOUR RIGHT TO PAYMENT THEREUNDER IS DEPENDENT UPON YOUR ADHERENCE TO THE REQUIREMENTS OF THAT RULE. IN YOUR REQUEST FOR REVIEW, YOU, IN EFFECT, ASK THAT THE REQUIREMENTS OF THE TARIFF RULE BE WAIVED, AND CITE THE CASES OF PENNSYLVANIA RAILROAD COMPANY V. INTERNATIONAL COAL MINING COMPANY, 230 U.S. 184, 197; AND GUS BLASS COMPANY V. POWELL BROTHERS TRUCK LINES, 53 M.C.C. 603. IN THE PENNSYLVANIA RAILROAD CASE, THE SUPREME COURT STATED AT PAGE 197, THAT,"THE TARIFF, SO LONG AS IT WAS IN FORCE, WAS * * * TO BE TREATED AS THOUGH IT HAD BEEN A STATUTE, BINDING AS SUCH UPON RAILROAD AND SHIPPER ALIKE.' IN GUS BLASS COMPANY V. POWELL BROTHERS TRUCK LINES, THE COMMISSION, AT PAGE 605, STATED:

"IT APPEARS THAT DEFENDANT'S (POWELL BROTHERS TRUCK LINE) POSITION IS THAT ITS FAILURE PROPERLY TO ENDORSE THE BILL OF LADING AND FREIGHT BILL DOES NOT RENDER INAPPLICABLE THE PROVISIONS OF THE RULE GOVERNING THE CHARGES TO BE ASSESSED, AND THAT THE REQUIREMENT FOR SUCH ENDORSEMENT IS SIMPLY A MATTER OF FORM, THE ABSENCE OF WHICH DOES NOT AFFECT THE REMAINING PROVISIONS OF THE RULE. WE THINK NOT. IT IS WELL SETTLED THAT A RULE CONTAINED IN A TARIFF IS A PART OF THE TARIFF AND CANNOT BE WAIVED.'

THE COMMISSION DID NOT ALLOW POWELL BROTHERS EXCLUSIVE-USE CHARGES BUT ALLOWED IT THE TRUCKLOAD CHARGES ON THE SHIPMENT. OUR PRIOR DECISION SUSTAINING THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL IS, ACCORDINGLY, SUSTAINED.