B-157576, MAR. 29, 1966

B-157576, MAR. 29, 1966

TO GEORGIA HIGHWAY EXPRESS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1, 1966, AND AN EARLIER LETTER, YOUR FILE 0-210-83, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF MILITARY BAYONETS, WEIGHING 25,000 POUNDS, TRANSPORTED FROM TOOELE, UTAH, TO FORT BENNING, GEORGIA, UNDER GOVERNMENT BILL OF LADING NO. B-7426782, DATED NOVEMBER 2, 1962. THE BILL OF LADING CONTAINED THE WORDS "EXPEDITE ALL POSSIBLE" AND "EXPEDITE.'

FOR THE TRANSPORTATION INVOLVED, YOUR COMPANY CLAIMED ORIGINALLY AND WAS PAID $2,210, COMPUTED AT A CLASS 100 RATE OF $8.84 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 25,000 POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER BY OUR TRANSPORTATION DIVISION, IT WAS DETERMINED THAT TRUCKLOAD CHARGES OF $1,550 SHOULD HAVE BEEN ASSESSED. THOSE CHARGES ARE COMPUTED AT THE CLASS 70 RATE OF $6.20 PER 100 POUNDS ON 25,000 POUNDS, PROVIDED BY ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF NO. 21-B, MF-I.C.C. NO. 117, AND NATIONAL MOTOR FREIGHT CLASSIFICATION A-6, MF I.C.C. NO. 4. ON THIS BASIS AN OVERCHARGE NOTICE (FORM 1003) DATED AUGUST 13, 1963, IN THE AMOUNT OF $660 WAS ISSUED. UPON YOUR FAILURE TO MAKE THE REFUND, THAT AMOUNT WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. YOUR CLAIM FOR $394.80, PREDICATED ON AN EXCLUSIVE USE OF VEHICLE CHARGE OF $1,944.80 (22,000 POUNDS AT THE FIRST CLASS RATE OF $8.84 PER 100 POUNDS), WAS DISALLOWED BY OUR SETTLEMENT CERTIFICATE DATED SEPTEMBER 9, 1964, FOR THE REASON THAT THE BILL OF LADING DID NOT CONTAIN ANY NOTATION BY THE SHIPPING INSTALLATION THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS REQUESTED.

WITH YOUR REQUEST FOR REVIEW OF THE SETTLEMENT YOU FURNISHED A LETTER DATED MARCH 3, 1965, FROM CARL E. PETERSON, TRANSPORTATION OFFICER OF THE TOOELE ARMY DEPOT, STATING THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS NEEDED AND REQUESTED VERBALLY, AND THAT NOTATION OF SUCH REQUEST WAS INADVERTENTLY LEFT OFF THE GOVERNMENT BILL OF LADING.

THE EXCLUSIVE USE OF VEHICLE RULE HERE INVOLVED, ITEM 940 ON 1ST REVISED PAGE 118, EFFECTIVE AUGUST 11, 1962, ROCKY MOUNTAIN MOTOR TARIFF BUREAU TERRITORIAL DIRECTORY 20-D, READS, IN PART, AS FOLLOWS:

"2. UPON REQUEST OF THE CONSIGNOR, THE CARRIER WILL FURNISH A VEHICLE (SEE NOTE 1 HEREOF) WHICH VEHICLE WILL BE ASSIGNED TO, AND EXCLUSIVELY USED BY THE CARRIER FOR, THE TRANSPORTATION OF THE SHIPMENT. ONLY ONE VEHICLE PER SHIPMENT WILL BE FURNISHED AND A BILL OF LADING, BEARING A NOTATION INDICATING THAT THE SHIPPER REQUESTS SUCH EXCLUSIVE USE OF THE VEHICLE, MUST BE PROVIDED FOR EACH SUCH SHIPMENT. SHIPMENTS WHICH BECAUSE OF THEIR WEIGHT, OR THEIR CUBICAL WEIGHT DENSITY, OR BOTH, CANNOT BE LOADED AND TRANSPORTED IN ONE VEHICLE, EITHER BECAUSE OF THE CARRYING CAPACITY OF THE VEHICLE OR BECAUSE OF STATE WEIGHT-LAW LIMITATIONS WILL NOT BE ACCORDED THE EXCLUSIVE USE OF VEHICLE SERVICE PROVIDED IN THIS ITEM.'

"NOTE 1--- THE TERM "VEHICLE," AS USED IN THIS ITEM MEANS A TRUCK OR A TRAILER, (BUT NOT A TRUCK AND TRAILER COMBINATION), HAVING A FREIGHT CARRYING CAPACITY OF NOT LESS THAN 1,500 CUBIC FEET.'

THE INTERSTATE COMMERCE COMMISSION IN GUS BLASS COMPANY V. POWELL BROTHERS TRUCK LINE, 53 M.C.C. 603 (1951), APPLYING THE LONG ESTABLISHED PRINCIPLE THAT RULES IN A TARIFF MAY NOT BE WAIVED (DAVIS V. HENDERSON, 266 U.S. 92 (1924); NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD OF NEW JERSEY, 216 I.C.C. 105 (1936) (, HELD THAT THE OMISSION OF A REQUIRED BILL OF LADING INDORSEMENT WAS A DEFECT FATAL TO THE APPLICATION OF TRANSPORTATION CHARGES BASED ON AN EXCLUSIVE USE OF VEHICLE RULE EVEN THOUGH SUCH SERVICE WAS VERBALLY REQUESTED AND ACTUALLY FURNISHED. WHILE SLIGHT VARIATIONS FROM THE FORM OF THE REQUIRED NOTATION ARE PERMISSIBLE, THE SUBSTANCE OF THE RULE MUST BE COMPLIED WITH. CLARK THREAD CO., INC. V. PILOT FREIGHT FORWARDERS, INC., 62 M.C.C. 185, 189 (1953); CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 276 (1962).

IT SEEMS TO BE YOUR VIEW THAT THE CAMPBELL "66" CASE OVERRULED THE GUS BLASS DECISION, BUT THIS CLEARLY IS NOT THE CASE. IN THREE OF THE MOVEMENTS INVOLVED IN THE CAMPBELL "66" CASE THE BILLS OF LADING WERE ANNOTATED IN THE FORM REQUIRED BY THE TARIFF RULE THERE INVOLVED; ON THE BILL OF LADING COVERING THE FOURTH MOVEMENT THE SHIPPING INSTALLATION STAMPED THE FOLLOWING STATEMENT:

"I CERTIFY THAT EXCLUSIVE USE OF VEHICLE SERVICE WAS FURNISHED FROM ................................... TO ..................... ............................................ .............. (AGENT OF DESTINATION CARRIER)

DATE"

AS TO THAT SHIPMENT THE COURT OF CLAIMS SPECIFICALLY FOLLOWED THE GUS BLASS PRINCIPLE THAT THE TARIFF PROVISIONS REQUIRING A CERTAIN KIND OF NOTATION ON THE BILL OF LADING MUST BE COMPLIED WITH, AND HELD THAT THE ABOVE CERTIFICATE WAS TANTAMOUNT TO A REQUEST THAT EXCLUSIVE USE OF VEHICLE SERVICE BE FURNISHED. THE COURT INDICATED THAT SUBSTANCE RATHER THAN FORM GOVERNED THE TRANSACTION. THE CERTIFICATE WAS FOUND TO SUBSTANTIALLY COMPLY WITH THE TARIFF RULE THERE INVOLVED. THE COURT DID NOT SAY, AS YOU INDICATE IN YOUR LETTER, THAT "INTENT RATHER THAN FORM GOVERNS.' IT SAID THAT "IT WAS NOT INTENDED THAT FORM RATHER THAN SUBSTANCE WOULD GOVERN THE TRANSACTION.'

IT IS CLEAR THAT THE PHRASE "EXPEDITE ALL POSSIBLE" DOES NOT CONSTITUTE A COMPLIANCE WITH THE SUBSTANCE OF THE RULE IN TARIFF ITEM 940. THE PHRASE SIMPLY SHOWS THAT THE SHIPPER DESIRED MAXIMUM SPEED IN HANDLING. CONTAINS NO INDICATION THAT ANY VEHICLE SHOULD BE SOLELY DEVOTED TO MOVING THE SHIPMENT, EITHER EXPRESSLY OR BY INFERENCE.

WE ARE AWARE OF NO LEGAL AUTHORITY TO SUPPORT A CONCLUSION THAT NON COMPLIANCE WITH THE TARIFF RULE MAY BE REMEDIED BY A STATEMENT OF THE SHIPPER, MADE SOME TWO YEARS AFTER THE MOVEMENT, THAT THE NON COMPLIANCE OCCURRED THROUGH INADVERTENCE. ON THE CONTRARY, THE PRINCIPLE PROHIBITING THE WAIVER OF TARIFF RULES IS BASED ON SECTION 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317 (B), WHICH PROVIDES THAT, EXCEPT FOR TRANSPORTATION FURNISHED FREE OR AT REDUCED RATES UNDER SECTION 22 OF THE ACT (49 U.S.C. 22),"NO COMMON CARRIER BY MOTOR VEHICLE SHALL CHARGE OR DEMAND OR COLLECT OR RECEIVE A GREATER OR LESS OR DIFFERENT COMPENSATION FOR TRANSPORTATION OR FOR ANY SERVICE IN CONNECTION THEREWITH BETWEEN THE POINTS ENUMERATED IN SUCH (ITS) TARIFF THAN THE RATES, FARES, AND CHARGES SPECIFIED IN THE TARIFFS IN EFFECT AT THE TIME.' THUS, UNLESS AUTHORIZED UNDER SECTION 22 OF THE ACT, ANY DEVIATION FROM A CARRIER'S PUBLISHED TARIFF, INCLUDING THE TARIFF RULES GOVERNING SUCH CHARGES, IS PROHIBITED BY THE ACT.

ACCORDINGLY, THE SETTLEMENT CERTIFICATE DISALLOWING YOUR SUPPLEMENTAL BILL WAS CORRECT, AND IT ..END :