B-156129, AUG. 17, 1965

B-156129: Aug 17, 1965

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WAS TENDERED TO ARTIC (ARCTIC) MOVING CO. APPROPRIATE NOTATIONS ON THE BILL OF LADING INDICATE THAT THE ORIGINAL BILL OF LADING WAS SURRENDERED AT FORT WAINWRIGHT TO ARCTIC. " THAT A GOVERNMENT-OWNED CONEX CONTAINER WAS FURNISHED. THAT THE TARIFF OR SPECIAL RATE AUTHORITY WAS "FT NO. 1 REV 49. WAS PRESENTED TO THE U.S. ARMY FINANCE CENTER AND WAS PAID IN JUNE 1962. WAS PAID BY THE ARMY FINANCE CENTER. IT IS SUPPORTED BY AN ACCESSORIAL SERVICES CERTIFICATE. INCLUDED AMONG THE PAPERS ENCLOSED WITH THE LETTER WERE COPIES OF VON DER AHE'S BILL WHICH WAS ADDRESSED TO THE U.S. TRAFFIC SERVICES APPARENTLY WAS UNABLE TO MAKE ADJUSTMENT WITH UNIVERSAL. WAS PRESENTED TO THE GENERAL ACCOUNTING OFFICE.

B-156129, AUG. 17, 1965

TO DENNING AND WOHLSTETTER:

WE AGAIN REFER TO YOUR LETTER OF MAY 12, 1965, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE DATED APRIL 20, 1965 (OUR CLAIM NO. TK-799091). THE SETTLEMENT DISALLOWED A CLAIM OF ADVANCE CONTAINER TRANSIT FOR $549.64, THE FREIGHT CHARGES ALLEGEDLY DUE ON A SHIPMENT OF USED HOUSEHOLD GOODS TRANSPORTED IN MARCH 1962 UNDER GOVERNMENT BILL OF LADING NO. B-0219152 FROM FORT WAINWRIGHT, ALASKA, TO WAVERLY AIR FORCE STATION, IOWA.

THE ORIGINAL GOVERNMENT BILL OF LADING SHOWS THAT AT FORT WAINWRIGHT ON MARCH 19, 1962, AN UNROUTED SHIPMENT OF HOUSEHOLD GOODS, WEIGHING 1,510 POUNDS, THE PROPERTY OF T. SGT. ARTHUR L. WOODSON, WAS TENDERED TO ARTIC (ARCTIC) MOVING CO., INC., SHOWN AS AGENT OF ADVANCE CONTAINER TRANSIT, FOR TRANSPORTATION TO WAVERLY. APPROPRIATE NOTATIONS ON THE BILL OF LADING INDICATE THAT THE ORIGINAL BILL OF LADING WAS SURRENDERED AT FORT WAINWRIGHT TO ARCTIC; THAT "SIT (STORAGE IN TRANSIT) AUTH AT DESTINATION NOT TO EXCEED 90 DAYS; " THAT A GOVERNMENT-OWNED CONEX CONTAINER WAS FURNISHED; AND THAT THE TARIFF OR SPECIAL RATE AUTHORITY WAS "FT NO. 1 REV 49, 15 AUG 61.' THE CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE BILL OF LADING SHOWS THAT ON APRIL 20, 1962, THE UNIVERSAL CARLOADING AND DISTRIBUTING CO. (UNIVERSAL) DELIVERED THE SHIPMENT TO THE TAKIN BROS. TRANSFER AND STORAGE COMPANY AT WATERLOO, IOWA, APPARENTLY FOR STORAGE PURPOSES.

UNIVERSAL'S BILL NO. G 308844, FOR $451.55, SUPPORTED WITH THE ACCOMPLISHED BILL OF LADING AND WITH A COPY OF UNIVERSAL'S FREIGHT BILL SHOWING ALASKA TRUCK TRANSPORT, FAIRBANKS, ALASKA, AS SHIPPER, WAS PRESENTED TO THE U.S. ARMY FINANCE CENTER AND WAS PAID IN JUNE 1962; LATER, IN AUGUST 1962, UNIVERSAL'S SUPPLEMENTAL BILL NO. G 308844 SUPP, FOR $56.63, REPRESENTING CHARGES FOR 47 DAYS OF STORAGE, AND FOR WAREHOUSE HANDLING AND DELIVERY, WAS PAID BY THE ARMY FINANCE CENTER. IT IS SUPPORTED BY AN ACCESSORIAL SERVICES CERTIFICATE, DATED JUNE 5, 1962, AND SIGNED BY ARTHUR L. WOODSON, THE PROPERTY OWNER, AND BY TAKIN BROS. TRANSFER AND STORAGE COMPANY, FOR UNIVERSAL.

IN FEBRUARY 1965, TRAFFIC SERVICES, INC., ACTING FOR VON DER AHE VAN LINES, INC., SENT US A LETTER CLAIMING $549.64 ON BEHALF OF ADVANCE CONTAINER TRANSIT FOR THE HANDLING OF THE SHIPMENT. INCLUDED AMONG THE PAPERS ENCLOSED WITH THE LETTER WERE COPIES OF VON DER AHE'S BILL WHICH WAS ADDRESSED TO THE U.S. ARMY FINANCE CENTER, A COPY OF A CERTIFICATE IN LIEU OF A LOST GOVERNMENT BILL OF LADING, TOGETHER WITH COPIES OF LETTERS FROM THE ARMY FINANCE CENTER TO (1) TRAFFIC SERVICES, EXPLAINING THAT PAYMENT ON THE ORIGINAL BILL OF LADING HAD BEEN MADE TO UNIVERSAL; (2) UNIVERSAL, ASKING FOR AN EXPLANATION OF ITS PARTICIPATION IN THE SHIPMENT; AND (3) TRAFFIC SERVICES, TELLING IT TO CONTACT UNIVERSAL FOR INFORMATION ABOUT THE PAYMENT. TRAFFIC SERVICES APPARENTLY WAS UNABLE TO MAKE ADJUSTMENT WITH UNIVERSAL, AND THE CLAIM FOR $549.64, WAS PRESENTED TO THE GENERAL ACCOUNTING OFFICE.

THE CLAIM WAS DISALLOWED IN THE SETTLEMENT HERE UNDER REVIEW. VON DER AHE (ADVANCE CONTAINER TRANSIT) WAS ADVISED IN EFFECT THAT PAYMENT FOR THE TRANSPORTATION HAD BEEN MADE TO UNIVERSAL, THE LAST CARRIER SHOWN IN THE BILL OF LADING CONSIGNEE'S CERTIFICATE OF DELIVERY, UPON PRESENTATION OF THE PROPERLY ACCOMPLISHED ORIGINAL BILL OF LADING. THIS PAYMENT WAS IN ACCORDANCE WITH CONDITION 1 ON THE BACK OF THE BILL OF LADING, AND VON DER AHE WAS TOLD THAT SETTLEMENT FOR ANY CHARGES CONSIDERED TO BE DUE SHOULD BE MADE WITH UNIVERSAL.

IN YOUR LETTER REQUESTING REVIEW YOU POINT OUT THAT ADVANCE CONTAINER TRANSIT IS AN EXEMPT FREIGHT FORWARDER APPROVED BY THE DEFENSE TRAFFIC MANAGEMENT SERVICE AND THAT UNDER SERVICE AND RATE TENDERS FILED WITH THAT AGENCY IT WAS AWARDED THIS SHIPMENT AND ASSUMED RESPONSIBILITY FOR ITS TRANSPORTATION FROM ORIGIN TO DESTINATION. YOU URGE THAT THERE WAS NO BASIS WHATEVER FOR THE GOVERNMENT TO COMPENSATE A PERSON (UNIVERSAL), WITH WHOM THEY HAVE NO CONTRACT, FOR SERVICES RENDERED UNDER CONTRACTUAL ARRANGEMENTS BETWEEN ADVANCE CONTAINER TRANSIT AND THE GOVERNMENT, TO WHICH UNIVERSAL IS NOT PRIVY.

THE GOVERNMENT ARRANGED WITH ADVANCE CONTAINER TRANSIT, AN EXEMPT FREIGHT FORWARDER (49 U.S.C.A. 1002 (B) (2) (, FOR THE TRANSPORTATION OF T. SGT. WOODSON'S HOUSEHOLD GOODS FROM FORT WAINWRIGHT TO WAVERLY AIR FORCE STATION. THE RIGHTS AND LIABILITIES DERIVED FROM THAT ARRANGEMENT ARE BASED ON THE PROVISIONS OF ORIGINAL GOVERNMENT BILL OF LADING NO. B- 0219152, ADVANCE CONTAINER'S TENDER OF SERVICE AND LETTER OF INTENT (AIR FORCE REGULATION NO. 75-17, DATED NOVEMBER 14, 1961, AS AMENDED) AND ITS TENDER OF RATES AND CHARGES (ADVANCE CONTAINER TRANSIT C., FREIGHT TARIFF NO. 1, EFFECTIVE APRIL 1, 1961, AS AMENDED).

WE AGREE THAT UNDER THE SERVICE AND RATE TENDERS, ADVANCE CONTAINER TRANSIT ASSUMES RESPONSIBILITY FROM ORIGIN TO DESTINATION FOR THE TRANSPORTATION OF SHIPMENTS TENDERED TO IT. THIS IS BECAUSE FREIGHT FORWARDERS ARE VIEWED AS CARRIERS IN THEIR DEALINGS WITH THEIR CUSTOMERS AND ARE SUBJECT TO COMMON CARRIER LIABILITY FOR LOSS OF OR DAMAGE TO GOODS. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD CO. V. ACME FAST FREIGHT, 336 U.S. 465, 484-487 (1949). IT BY NO MEANS FOLLOWS, HOWEVER, THAT THE GOVERNMENT HAD NO BASIS WHATEVER TO PAY UNIVERSAL, THE DELIVERING CARRIER SHOWN IN THE BILL OF LADING CONSIGNEE'S CERTIFICATE OF DELIVERY.

THE ORIGINAL GOVERNMENT BILL OF LADING WAS SURRENDERED AT ORIGIN TO ARCTIC MOVING CO; SHOWN AS THE AGENT OF ADVANCE CONTAINER TRANSIT. PROVIDES ON THE BACK, UNDER THE HEADING "CONDITIONS," THAT

"IT IS MUTUALLY AGREED AND UNDERSTOOD BETWEEN THE UNITED STATES AND THE CARRIERS WHO ARE PARTIES TO THIS BILL OF LADING THAT---

"1. * * * ON PRESENTATION OF THIS BILL OF LADING, PROPERLY ACCOMPLISHED AND ATTACHED TO FREIGHT VOUCHER PREPARED ON THE AUTHORIZED GOVERNMENT FORM, TO THE OFFICE INDICATED ON THE FACE HEREOF, PAYMENT WILL BE MADE TO THE LAST CARRIER, UNLESS OTHERWISE SPECIFICALLY STIPULATED.'

NO SPECIFIC STIPULATION APPEARS IN THE BILL OF LADING, THE TENDER OF SERVICE, THE LETTER OF INTENT OR ADVANCE CONTAINER TRANSIT, INC., FREIGHT TARIFF NO. 1, WHICH FAIRLY CONSTRUED COULD BE SAID TO VARY THE EXPRESS LANGUAGE OF CONDITION 1.

THE FACT THAT THE LAST CARRIER WAS UNIVERSAL AND NOT ADVANCE CONTAINER TRANSIT CANNOT IN THIS CASE BE ATTRIBUTED TO ANY ACTIONS OF THE GOVERNMENT SINCE THE ORIGINAL BILL OF LADING WAS SURRENDERED AT ORIGIN TO THE AGENT OF ADVANCE CONTAINER TRANSIT (AS INDICATED ON THE BILL OF LADING) AND THUS WAS OUT OF THE GOVERNMENT'S CONTROL. AND THE HANDLING OF THE DOCUMENT BY THE FORWARDER'S AGENT ULTIMATELY LED THE GOVERNMENT TO BELIEVE THAT UNIVERSAL HAD AUTHORITY TO COLLECT THE CHARGES APPLICABLE ON THE SHIPMENT. COMPLETION OF THE CONSIGNEE'S CERTIFICATE OF DELIVERY IN FAVOR OF UNIVERSAL AND UNIVERSAL'S POSSESSION OF THE DOCUMENT GAVE THAT COMPANY A PRIMA FACIE RIGHT TO THE TRANSPORTATION CHARGES, A RIGHT WHICH THE GOVERNMENT DISBURSING OFFICERS LEGALLY WERE ENTITLED, IF NOT REQUIRED, TO HONOR. IN THE PRESENT KIND OF SITUATION WE BELIEVE THAT THE FORWARDER IS ESTOPPED TO DENY THAT UNIVERSAL HAD THE NECESSARY AUTHORITY AFTER THE GOVERNMENT PAID UNIVERSAL IN RELIANCE ON THAT AUTHORITY. SEE 3 AM.JUR. 2D AGENCY, SECTION 19; RESTATEMENT, AGENCY 2D, SECTION 8B; HAWKINS V. MERRILL, LYNCH, PIERCE, FENNER AND BEANE, 85 F.SUPP. 104, 120 (1949); CF. UNITED STATES V. BETHKE, 132 F.SUPP. 22 (1955).

IT WOULD SEEM TO BE THE RESPONSIBILITY OF THE FREIGHT FORWARDER TO EXERCISE THE NECESSARY CONTROL OVER ITS AGENTS IN ORDER TO INSURE THAT THE RETAINED ORIGINAL GOVERNMENT BILL OF LADING WAS NOT SO HANDLED AS TO FRUSTRATE ITS COLLECTION EFFORTS. INSOFAR AS THE GOVERNMENT IS CONCERNED THE HOLDER OF THE ORIGINAL BILL OF LADING WHO IS SHOWN TO HAVE PARTICIPATED IN THE TRANSPORTATION SERVICE IS THE PARTY ENTITLED TO PAYMENT FOR THE TRANSPORTATION SERVICE, ABSENT ANY TIMELY NOTICE TO THE CONTRARY FROM THE FREIGHT FORWARDER.

ALTHOUGH NOT EXPLICITLY STATED IN YOUR LETTER IT IS APPARENT THAT UNIVERSAL IS NOT AUTHORIZED BY ADVANCE CONTAINER TRANSIT TO COLLECT ANY FURTHER CHARGES ON THIS SHIPMENT. SEE RESTATEMENT, AGENCY 2D, SECTION 125; COOPER - FORTIETH CO. V. KELLER, 75 N.E. 2D 809 (1947); RODRIGUEZ V. SECRETARY OF TREASURY OF PUERTO RICO, 276 F.2D 344, 348 (1960). IN THESE CIRCUMSTANCES WE HAVE INSTRUCTED OUR TRANSPORTATION DIVISION TO REOPEN THE SETTLEMENT AND TO DETERMINE FROM ADVANCE CONTAINER TRANSIT FREIGHT TARIFF 1--- THE RATE AUTHORITY REFERRED TO IN THE BILL OF LADING--- THE FREIGHT CHARGES APPLICABLE ON THE SHIPMENT. THE BALANCE OF THESE CHARGES, IF ANY, REMAINING AFTER DEDUCTING THE TOTAL OF $508.18, PAID TO UNIVERSAL, WHICH IS FOR SETTLEMENT BETWEEN ADVANCE CONTAINER TRANSIT AND UNIVERSAL, WILL BE CERTIFIED FOR PAYMENT TO ADVANCE CONTAINER TRANSIT.

NOTICE OF THE REVISED SETTLEMENT SHOULD REACH THE FORWARDER IN DUE COURSE.

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