B-146633, FEB. 1, 1962

B-146633, FEB. 1, 1962

TO A. B. JAMES FREIGHT LINES:

IN YOUR LETTER OF JANUARY 10, 1962, FILE NO. N-466/48, UC-148, 164143, TK -711659, YOU REQUEST RECONSIDERATION OF THAT PART OF OUR DECISION OF DECEMBER 26, 1961, B-146612, B-146633, TO YOU, IN WHICH WE HELD THAT AS A RESULT OF THE NOTATION ON THE FACE OF GOVERNMENT BILLS OF LADING NOS. N- 30530045 AND N-30518411, DATED DECEMBER 30 AND DECEMBER 22, 1947, RESPECTIVELY, THE MAXIMUM FREIGHT CHARGES APPLICABLE TO THE SHIPMENTS UNDER THOSE TWO BILLS OF LADING WERE THOSE PUBLISHED IN CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2.

THESE BILLS OF LADING COVERED MIXED SHIPMENTS FROM NORTH ISLAND TO OAKLAND, CALIFORNIA. THE BILLS OF LADING BEAR THE ANNOTATION "SUBJECT TO APPLICABLE TARIFF RATES LAWFULLY ON FILE WITH ICC AND/OR CRC HIGHWAY CARRIERS TARIFF NUMBER TWO (2), AS A MAXIMUM.' BECAUSE OF THIS NOTATION OUR OFFICE HELD IN B-146612, B-146633, DATED DECEMBER 26, 1961, FOLLOWING OUR DECISIONS IN B-138933 OF SEPTEMBER 10, 1959, AND B-146511 OF NOVEMBER 22, 1961, COPIES OF WHICH WERE SENT TO YOU, THAT THE APPLICABLE RATES PUBLISHED IN CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2 WERE INCORPORATED BY REFERENCE AND MADE AN INTEGRAL PART OF THE CONTRACT OF CARRIAGE AS THE HIGHEST RATES THE GOVERNMENT COULD LEGALLY BE CALLED UPON TO PAY FOR THE SERVICE FURNISHED.

IN YOUR REQUEST FOR RECONSIDERATION YOU ARGUE THAT THERE IS NO LEGAL AUTHORITY GIVEN FOR OUR POSITION, THAT THE NOTATION ON THE BILLS OF LADING HAVE NO LEGAL SIGNIFICANCE, AND THAT AS A COMMON CARRIER YOU ARE NOT, AND NEVER HAVE BEEN, SUBJECT TO CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2; AND, CITING UNION WIRE ROPE CORP. V. ATCHISON, T. AND S.F.RY., 66 F.2D 965; SANISTONE PRODUCTS CO. V. PENNSYLVANIA R.CO., 192 I.C.C. 565, 566; RYAN CO. V. ILLINOIS C.R., 183 I.C.C. 501, 502; AND WESTERN GRAIN CO. V. ST.L.-S.F.RY., 56 F.2D 160; YOU ARGUE FURTHER THAT SHIPPERS ARE BOUND TO TAKE NOTICE OF THE DULY PUBLISHED TARIFF, THE TERMS OF WHICH CONSTITUTE THE ONLY CONTRACT ALLOWED BY LAW.

THE UNITED STATES GOVERNMENT, HOWEVER, AS A SHIPPER, IS FREE TO CONTRACT FOR ITS TRANSPORTATION SERVICES SUBJECT TO THE INTERSTATE COMMERCE ACT AT LOWER RATES THAN THOSE AVAILABLE TO THE GENERAL PUBLIC AS PUBLISHED TARIFFS. SEE 49 U.S.C. 22, 317 (C) AND 906 (C). ALSO, SUCH CONTRACTING AUTHORITY EXTENDS AS WELL TO INTRASTATE SHIPMENTS AND IT CANNOT BE SUBJECTED TO THE REGULATORY AUTHORITY OF A STATE FOR THE TERMS UPON WHICH IT WILL CONTRACT FOR SUCH SERVICES. PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES, 355 U.S. 534; HUGHES TRANSPORTATION, INC. V. UNITED STATES, 168 F.SUPP. 219, CERTIORARI DENIED 359 U.S. 968; UNION TRANSFER CO. V. UNITED STATES, 168 F.SUPP. 217, CERTIORARI DENIED 359 U.S. 968. SEE ALSO IN RE AMERICAN BOILER WORKS, 220 F.2D 319. CONSEQUENTLY, THE JUDICIAL AND INTERSTATE COMMERCE COMMISSION DECISIONS CITED BY YOU ARE NOT CONTROLLING, AND THE FEDERAL GOVERNMENT WAS FREE TO CONTRACT FOR LOWER RATES THAN WERE AVAILABLE TO THE GENERAL PUBLIC FOR THE INVOLVED SERVICES.

BY PLACING THE NOTATION ON THE FACE OF THE PRESENT BILLS OF LADING THE GOVERNMENT INCORPORATED, BY REFERENCE AS FULLY AS THOUGH SPECIFICALLY SET OUT, THE RATES PUBLISHED IN CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2 AS THE MAXIMUM WHICH COULD BE CHARGED INTO AND AS A PART OF THE CONTRACT AND THESE TERMS WERE, AT LEAST IMPLIEDLY, AGREED TO BY THE CARRIER ON ITS SIGNING AND ACCEPTANCE OF THE BILLS OF LADING. BENTON RAPID EXPRESS, INC. V. UNITED STATES, 171 F.SUPP. 868; BURDINES V. PAN-ATLANTIC STEAMSHIP CORP., 199 F.2D 571; UNITED STATES V. SEABOARD AIR LINE RY.CO., 22 F.2D 113; AND UNITED STATES V. THE SOUTH STAR, 115 F.SUPP. 102, 106.IT IS IMMATERIAL WHETHER OR NOT THE CARRIER WAS SUBJECT TO THE CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2 BY STATE LAW SINCE BY CONTRACT IT SUBJECTED ITSELF TO OBSERVANCE OF RATES IN THAT TARIFF AS MAXIMUM.

IN ADDITION YOU STATE THAT THESE PROVISIONS IN THE BILLS OF LADING HAVE NO APPLICATION SINCE YOU HAD NEGOTIATED THE RATE AGREEMENT OF NOVEMBER 11, 1947, AND YOU ALLEGE THAT OUR OFFICE HELD IN B-136933 (APPARENTLY SHOULD BE B-138933) OF SEPTEMBER 10, 1959," * * * THAT A NEGOTIATED RATE AGREEMENT WILL OPERATE TO SUPERSEDE AND NEGATE THE PROVISIONS IN THE BILL OF LADING CONTRACT FOR OBSERVING CRC TARIFF NO. 2 RATES AS MAXIMA.' THAT DECISION WE STATED IN PERTINENT PART: "IN SUPPORT OF THE CHARGES BILLED, YOU HAVE NOT SHOWN ANY TARIFF AUTHORITY, OR OFFERED ANY EVIDENCE OF A RATE QUOTATION OR NEGOTIATED RATE AGREEMENT WHICH WOULD OPERATE TO SUPERSEDE OR NEGATE THE PROVISION IN THE BILL OF LADING CONTRACT FOR OBSERVING CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2 RATES AS MAXIMA.' THIS STATEMENT MERELY RECOGNIZES THE POSSIBILITY THAT A RATE AGREEMENT MIGHT BE NEGOTIATED WHICH MIGHT HAVE THE EFFECT OF SUPERSEDING A BILL OF LADING PROVISION, BUT DOES NOT HOLD THAT ANY NEGOTIATED RATE AGREEMENT NECESSARILY WOULD HAVE THAT EFFECT. ANY PROVISION IN A RATE AGREEMENT HAVING THAT EFFECT WOULD HAVE TO BE EXPRESSED IN CLEAR AND UNAMBIGUOUS LANGUAGE, SINCE, AS A GENERAL RULE, A NOTATION ON THE FACE OF A BILL OF LADING CONSTITUTES THE MOST RECENT EXPRESSION OF THE AGREEMENT OF THE CONTRACTING PARTIES AND SUPERSEDES PRINTED PROVISIONS IN THE SAME CONTRACT, WHICH IN TRANSPORTATION INCLUDES BOTH THE BILL OF LADING AND THE TARIFF. SEE BURDINES V. PAN-ATLANTIC S.S. CORP., CITED ABOVE, DEUTSCHLE V. WILSON, 39 F.2D 406; 17 C.J.S. CONTRACTS SEC. 310, P. 729; AND 12 AM.JUR. CONTRACTS SEC. 253, P. 797.

CLEARLY YOUR QUOTATION OF NOVEMBER 8, 1947, FILE L21-1 (10) (STR-1B) WAS MEANT TO HAVE GENERAL APPLICATION ON GOVERNMENT SHIPMENTS IN THE TERRITORY DESCRIBED ON OR AFTER NOVEMBER 8 AS HELD IN OUR PRIOR DECISION IN THIS CASE; BUT THERE IS NOTHING IN THIS QUOTATION WHICH PREVENTS A SPECIAL AGREEMENT FOR A LOWER RATE IN CONNECTION WITH PARTICULAR SHIPMENTS. THEREFORE, THE NOTATION ON THE PRESENT BILL OF LADING BEING AN EXPRESSION OF THE AGREEMENT OF THE CONTRACTING PARTIES AT THE TIME THE SHIPMENT WAS TENDERED, IT PREVAILS OVER INCONSISTENT PROVISIONS IN THE QUOTATION AND INCORPORATES BY REFERENCE THE RATES IN CRC TARIFF NO. 2 MAXIMA. ACCORDINGLY, OUR PRIOR DECISION IS SUSTAINED.

YOU ALSO STATE, HOWEVER, THAT OUR DECISIONS ARE "CONFLICTING, CONTRADICTORY, AND CONTROVERSIAL" AND THAT IN ANOTHER CASE YOU ATTEMPTED TO USE THIS SAME REASONING BUT WERE DENIED THIS PRINCIPLE BY OUR OFFICE. SINCE THE OTHER CASE REFERRED TO IS NOT IDENTIFIED, IT IS NOT POSSIBLE TO COMMENT OTHER THAN TO NOTE THAT OUR DECISIONS ARE BASED UPON THE FACTS SURROUNDING THE PARTICULAR SHIPMENT AND THE LAW APPLICABLE THERETO AND DIFFERENCES IN THE FACTUAL SITUATIONS MAY WARRANT DIFFERING CONCLUSIONS.