B-141926, NOV. 7, 1960

B-141926, NOV. 7, 1960

TO MR. GREGORY M. REBMAN, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 1960, ACKNOWLEDGED JULY 27, PERTAINING TO THE SETTLEMENT ISSUED TO THE VIKING FREIGHT COMPANY WHICH DISALLOWED ITS CLAIM ON BILL 250-A FOR $238 IN ADDITIONAL CHARGES FOR THE TRANSPORTATION SERVICES UNDER BILL OF LADING AF-7166078.

YOU CONTEND THAT THE DISALLOWANCE OF YOUR CLIENT'S CLAIM IS UNTENABLE BECAUSE EXCLUSIVE USE OF VEHICLE SERVICE WAS FURNISHED IN ACCORDANCE WITH THE NOTATION INSERTED ON THE BILL OF LADING BY THE GOVERNMENT TRANSPORTATION OFFICER TO THE EFFECT THAT THE VEHICLE WAS SEALED BY THE SHIPPER AT ORIGIN AND THE CARRIER INSTRUCTED NOT TO BREAK THE SEAL WITHOUT COORDINATION WITH THE TINKER AIR FORCE BASE. YOU ASSERT THAT THIS NOTATION CLEARLY EVIDENCES A DEMAND FOR THE EXCLUSIVE USE OF A VEHICLE AND THAT YOUR CLIENT IS ENTITLED TO PAYMENT FOR SUCH SERVICE.

CHARGES FOR EXCLUSIVE USE OF VEHICLE RULE ARE PROVIDED FOR IN ITEM 15 OF MIDDLEWEST MOTOR FREIGHT BUREAU TARIFF 45-A, MF-I.C.C. 241, AS AMENDED. SUCH RULE PROVIDES FOR SUCH CHARGES WHERE BOTH THE SHIPPING ORDER AND THE BILL OF LADING ARE ENDORSED WITH THE WORDS "EXCLUSIVE USE OF VEHICLE REQUIRED.' THE INSTANT BILL WAS NOT SO ANNOTATED. IN GUS BLASS COMPANY V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, THE INTERSTATE COMMERCE COMMISSION, IN CONSIDERATION OF A SIMILAR RULE, REITERATED THE WELL- ESTABLISHED PRINCIPLE THAT THE RULES IN A TARIFF CANNOT BE WAIVED (DAVIS V. HENDERSON, 266 U.S. 92; NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD CO. OF N.J., 216 I.C.C. 105), AND HELD THAT THE OMISSION OF A REQUIRED BILL OF LADING ENDORSEMENT WAS A DEFECT FATAL TO THE APPLICATION OF TRANSPORTATION CHARGES BASED ON THE EXCLUSIVE-USE OF VEHICLE RULE, EVEN THOUGH SUCH SERVICE WAS ACTUALLY REQUESTED AND FURNISHED. SEE, ALSO, SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CARRIERS CASES 710.

REGARDING YOUR STATEMENTS RELATIVE TO THE PREPARATION OF THE GOVERNMENT BILL OF LADING, IT IS A WIDELY ACCEPTED AND A LONG STANDING PRACTICE OF MANY LARGE BUSINESS ENTERPRISES, AS WELL AS OF THE GOVERNMENT, TO PREPARE THEIR OWN BILLS OF LADING. SEE DOMESTIC BILL OF LADING AND LIVESTOCK CONTRACTS, 172 I.C.C. 362, 364; EMERGENCY FREIGHT CHARGES, 1935, 208 I.C.C. 4, 51. THIS DOES NOT, HOWEVER, RELIEVE THE CARRIER OF THE DUTY IMPOSED BY SECTIONS 20 (11) AND 219, OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11) AND 319, OF ISSUING- - AS DISTINGUISHED FROM PREPARING--- APPROPRIATE BILLS OF LADING. EVEN WHERE THE BILL OF LADING IS PREPARED BY THE SHIPPER, THE MOTOR CARRIER HAS AN OBLIGATION TO REFRAIN FROM EXECUTING THE DOCUMENT IF IT CANNOT BE LAWFULLY COMPLIED WITH, OR IF IT CONTAINS CONFLICTING PROVISIONS. SEE EXPOSITION COTTON MILLS V. SOUTHERN RY. CO., 234 I.C.C. 441, 442; SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY R. CO., 274 I.C.C. 245, 247. ALTHOUGH THE GOVERNMENT BILL OF LADING FORM IS DESIGNED TO MEET THE ACCOUNTING NEEDS OF THE GOVERNMENT, THERE IS NOTHING IMPRINTED THEREON WHICH RELIEVES EITHER THE CARRIER OR THE GOVERNMENT FROM OBSERVING THE CONDITIONS IMPOSED BY THE EXCLUSIVE USE OR OTHER RULES OF THE TARIFF WITH THE EXCEPTION OF DEPARTURES AUTHORIZED UNDER SECTIONS 22 AND 217 (B) OF THE ACT, 49 U.S.C. 22 AND 317 (B).

UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, 42 STAT. 24, 31 U.S.C. 71, WE ARE CHARGED WITH THE DUTY OF SETTLING AND ADJUSTING ALL CLAIMS AND DEMANDS MADE BY OR AGAINST THE GOVERNMENT OF THE UNITED STATES. IN THE SETTLEMENT OF TRANSPORTATION CLAIMS, IT IS INCUMBENT UPON OUR OFFICE TO GIVE EFFECT TO THE PRINCIPLES AND FINDINGS ENUNCIATED IN DECISIONS OF THE INTERSTATE COMMERCE COMMISSION RELATIVE TO THE NON- APPLICATION OF SIMILAR RATES UNDER SIMILAR CIRCUMSTANCES. TO SANCTION THE PAYMENT OF PUBLIC FUNDS FOR CHARGES IN CONTRAVENTION OF SUCH FINDINGS OF THE COMMISSION WOULD BE IN VIOLATION OF THE DUTY IMPOSED BY LAW UPON OUR OFFICE.

ACCORDINGLY, THE SETTLEMENT WHICH DISALLOWED THE CLAIM OF VIKING FREIGHT COMPANY FOR EXCLUSIVE-USE CHARGES APPEARS PROPER, AND IS SUSTAINED.