B-129087, JANUARY 24, 1957, 36 COMP. GEN. 529

B-129087, JANUARY 24, 1957, 36 COMP. GEN. 529

TRANSPORTATION - RATES - LUMBER FROM UNITED STATES TO AZORES - ABSENCE OF SPECIFIC TARIFF - PAYMENT BASIS IN THE DETERMINATION OF TRANSPORTATION CHARGES FOR A SHIPMENT OF GOVERNMENT LUMBER FROM THE UNITED STATES TO THE AZORES BY A CARRIER WHICH DID NOT HAVE A TARIFF ON FILE WITH THE FEDERAL MARITIME BOARD OR A SPECIFIC RATE AGREEMENT WITH THE SHIPPING AGENCY, MILITARY SEA TRANSPORTATION SERVICE, THERE IS FOR APPLICATION THE TARIFF WHICH IS ESTABLISHED FOR SHIPMENTS TO PORTUGAL AND WHICH PROVIDES A RATE OF $27 PER TON FOR LUMBER; THEREFORE, THE CARRIER MAY ONLY BE PAID THE SPECIFIC RATE FOR LUMBER RATHER THAN THE HIGHER RATE FOR GENERAL CARGO NOT OTHERWISE SPECIFIED.

TO PRUDENTIAL STEAMSHIP CORPORATION, JANUARY 24, 1957:

REFERENCE IS MADE TO YOUR EXCHANGE OF CORRESPONDENCE WITH OUR TRANSPORTATION DIVISION, CONCERNING THE CHARGES ON A CONSIGNMENT OF CARGO TRANSPORTED BY THE PRUDENTIAL STEAMSHIP CORPORATION FOR THE UNITED STATES ABOARD THE S.S. NEWBERRY VICTORY, VOYAGE 3, MA 1558, SF 1657-3, FROM NORFOLK, VIRGINIA, TO PRAIA, AZORES, IN MAY 1951.

THE DESCRIPTION OF THE CARGO IN QUESTION, SHOWN ON GOVERNMENT BILL OF LADING NO. WW-8503885, DATED MAY 4, 1951, IS AS FOLLOWS:

TABLE

PACKAGES

DESCRIPTION OF ARTICLES WEIGHTS NO. KIND

723 BDLS LUMBER -------------------------------- 2,665,816 4596 PCS LUMBER ------------------------------------- 103,050 ---- ----- CUBE 102497 -------------------------------- -------

20 BXS HOUSE, GAS --------------------------- 14,600 --- ----- CUBE 882 -

FOR THE SERVICES IN QUESTION, THE CARRIER CLAIMED AND WAS PAID CHARGES AGGREGATING $142,144.75, COMPUTED ON BASIS OF 103,379 CUBIC FEET AT $55 PER 40 CUBIC FEET, IN THE ACCOUNT OF GOVERNMENT DISBURSING OFFICER J. E. LEWIS, VOUCHER 108507, AUGUST 1, 1951. IN OUR AUDIT OF THE PAID VOUCHER, IT WAS DETERMINED THAT THE MAXIMUM ALLOWABLE CHARGES FOR THE SERVICES IN QUESTION WERE $34,587.47, COMPUTED ON BASIS OF A RATE OF $27 PER TON OF 2,240 POUNDS ON THE 723 BUNDLES AND 4,596 PIECES OF LUMBER, WHICH WEIGHED A TOTAL OF 2,768,866 POUNDS, AND A RATE OF $55 PER 40 CUBIC FEET ON THE 20 BOXES OF HOSE, GAS, WHICH MEASURED 882 CUBIC FEET.

BY U. S. GENERAL ACCOUNTING OFFICE FORM 1003, DATED OCTOBER 7, 1954, YOU WERE REQUESTED TO REFUND THE EXCESS CHARGES OF $107,557.28 WHICH WERE PAID FOR THE SERVICES IN QUESTION. YOU PROTESTED THIS AUDIT ACTION, AND BY LETTER DATED FEBRUARY 23, 1955, FILE T-OD-B-504, OUR TRANSPORTATION DIVISION EXPLAINED ITS AUDIT ACTION AND DISCUSSED THE POINTS RAISED IN YOUR PROTEST. IN RESPONSE TO THAT LETTER, YOU SUBMITTED BY LETTER OF MARCH 30, 1955, AN AFFIDAVIT BY MR. JOHN E. SCHMELTZER, JR., VICE- PRESIDENT OF THE PRUDENTIAL STEAMSHIP CORPORATION, TOGETHER WITH ADVICE THAT YOU UNDERSTOOD THAT A DETAILED REPORT WOULD BE SUBMITTED TO US THROUGH OFFICIAL NAVY CHANNELS BY THE MILITARY SEA TRANSPORTATION SERVICE, ATLANTIC AREA. THE SAID REPORT HAS BEEN RECEIVED AND CAREFULLY CONSIDERED HERE.

WHILE IT IS NOTED THAT THE STATEMENTS CONTAINED IN AN AFFIDAVIT EXECUTED BY MR. JAMES B. SODEN, AN EMPLOYEE OF THE MILITARY SEA TRANSPORTATION SERVICE, DATED MARCH 24, 1955, AGREE, IN SOME RESPECTS, WITH THE AFFIDAVIT BY MR. SCHMELTZER, THE OFFICIAL REPORT OF THE MILITARY SEA TRANSPORTATION SERVICE SHOWS THE FOLLOWING PERTINENT FACTS, AMONG OTHERS:

(1) ALL CARGO TO THE AZORES WAS TO BE BOOKED AT BERTH TERM RATES.

(2) NO WRITTEN CONTRACT WAS EXECUTED FOR THIS MOVEMENT AT THE TIME OF BOOKING, DURING LOADING, OR LATER.

(3) NO SPECIFIC RATE WAS AGREED UPON BY THE CARRIER AND THE MILITARY SEA TRANSPORTATION SERVICE FOR THE SERVICES IN QUESTION.

(4) THERE WAS NO AGREEMENT BY MILITARY SEA TRANSPORTATION SERVICE TO PAY THE SUM OF $142,144.75 OR A RATE OF $55 PER TON WEIGHT OR MEASUREMENT, OR ANY OTHER SPECIFIC RATE, NOR WAS THERE AN AGREEMENT TO PAY THE " GENERAL CARGO ( NOT OTHERWISE SPECIFIED)" RATE ON THIS MOVEMENT.

IN VIEW OF THE UNBROKEN RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT AS TRUE, THE FACTS REPORTED ADMINISTRATIVELY, IN THE ABSENCE, AS HERE, OF EVIDENCE OTHERWISE AVAILABLE, CLEARLY REQUIRING A CONTRARY CONCLUSION (2 COMP. DEC. 242; 3 COMP. GEN. 51; 16 ID. 1105, 1106; 20 ID. 573, 578; 31 ID. 288; 34 ID. 522, 529), IT MUST BE CONCLUDED THIS RECORD DOES NOT ESTABLISH THAT THE GOVERNMENT WAS OBLIGATED TO PAY CHARGES AT OTHER THAN BERTH TERM RATES PROVIDED FOR THE KIND OF ARTICLES INVOLVED.

WITH RESPECT TO THE BERTH TERM RATES AVAILABLE AT THE TIME THIS CARGO WAS MOVED, IT APPEARS THAT THE PRUDENTIAL STEAMSHIP CORPORATION DID NOT HAVE ANY TARIFF ON FILE WITH THE FEDERAL MARITIME BOARD CONTAINING BERTH TERM RATES ON THE CARGO SPECIFICALLY NAMED FOR APPLICATION FROM THE NORTH ATLANTIC PORTS OF THE UNITED STATES TO THE AZORES ISLANDS. IN ADDITION, IT HAS BEEN REPORTED THAT NO SUCH RATES WERE FILED BY TARIFF WITHIN 30 DAYS AFTER THEY WERE TO BE EFFECTIVE, AS REQUIRED BY THE TERMS OF THE ORDER OF THE UNITED STATES SHIPPING BOARD (NOW FEDERAL MARITIME BOARD) IN DOCKET NO. 128, SECTION 19 INVESTIGATION, 1935, 1 U.S.S.B. 470, DECIDED DECEMBER 12, 1935. IN VIEW OF THIS FACT, AND IN THE ABSENCE OF A VALID SPECIFIC AGREEMENT BETWEEN THE CARRIER AND THE GOVERNMENT AS TO THE RATES TO BE APPLIED ON THE INSTANT CONSIGNMENT, CHARGES FOR THE SERVICES ACTUALLY PERFORMED ARE FOR DETERMINATION ON A QUANTUM MERUIT BASIS.

IN ARRIVING AT APPROPRIATE CHARGES UNDER THE CIRCUMSTANCES JUST STATED, WE HAVE ALSO CONSIDERED THE FOLLOWING MATTERS:

1. WHILE NO RATES HAVE BEEN FOUND WHICH WERE PUBLISHED FOR THE ACCOUNT OF THE CARRIER FROM UNITED STATES NORTH ATLANTIC PORTS TO THE AZORES, THE PRUDENTIAL STEAMSHIP CORPORATION WAS A MEMBER OF THE NORTH ATLANTIC PORTUGUESE FREIGHT CONFERENCE, AND PARTICIPATED IN THE RATES PUBLISHED FOR THE CARRIER-MEMBERS OF THAT CONFERENCE FROM THE NORTH ATLANTIC PORTS TO THE PORTUGUESE PORTS OF LEIXOES AND LISBON IN NORTH ATLANTIC PORTUGUESE FREIGHT CONFERENCE TARIFF NO. 5. PORTS OF CALL IN THE AZORES, SUCH AS PRAIA, ARE INTERMEDIATE TO THE PORTS OF LEIXOES AND LISBON, AND UNDER THE DOCTRINE OF DOCKET NO. 500, PUERTO RICAN RATES, 2 U.S.M.C. 117, CHARGES ON SHIPMENTS TO THE AZORES SHOULD NOT EXCEED THOSE PUBLISHED TO THE PORTUGUESE PORTS. THE TARIFF IN QUESTION NAMED A RATE OF $55 PER TON WEIGHT OR MEASUREMENT, ON " GENERAL CARGO ( NOT OTHERWISE SPECIFIED.) AND ALSO A RATE OF $27 PER TON OF 2,240 POUNDS ON " LUMBER, HEAVY, N.O.S.' THE LUMBER RATE APPLIED ON NORTH CAROLINA PINE LUMBER, THE TYPE HERE SHIPPED. UNDER APPROPRIATE RULES OF THE TARIFF, THE SPECIFIED RATE ON " LUMBER, HEAVY, N.O.S.' APPLIED WITHOUT REGARD TO PACKING REQUIREMENTS, I.E., ON LUMBER IN BUNDLES OR ON LUMBER IN LOOSE PIECES, AND SUCH RATE TAKES PRECEDENT OVER THE " GENERAL CARGO ( NOT OTHERWISE SPECIFIED)" RATE NAMED IN THE TARIFF.

2. CERTAIN OTHER CARRIER-MEMBERS OF THE NORTH ATLANTIC PORTUGUESE FREIGHT CONFERENCE REPORTEDLY HAVE APPLIED THE RATES TO LEIXOES AND LISBON ON TRAFFIC DESTINED TO PORTS IN THE AZORES, ONE SUCH CARRIER BEING THE AMERICAN EXPORT LINES, INC.

3. OTHER CARRIERS, NOT MEMBERS OF THE NORTH ATLANTIC PORTUGUESE FREIGHT CONFERENCE, HAVE SIGNIFIED THEIR WILLINGNESS TO APPLY RATES FROM NORTH ATLANTIC PORTS OF THE UNITED STATES TO THE PORTUGUESE PORTS OF LEIXOES AND LISBON, AS PUBLISHED IN THE NORTH ATLANTIC PORTUGUESE FREIGHT CONFERENCE FREIGHT TARIFF NO. 5, ON CARGOES DESTINED TO PORTS LOCATED IN THE AZORES. A CONCURRENCE DATED JUNE 16, 1949, REPORTEDLY FILED WITH THE UNITED STATES MARITIME COMMISSION BY FLOMARCY COMPANY, INC., AGENT FOR COMPANHIA DE NAVEGACAO " CORREGADORES ACOREANOS," AUTHORIZED THE APPLICATION OF PORTUGAL RATES TO AZORES PORTS. ANOTHER NONMEMBER CARRIER WHICH HAS AGREED TO THE SAME BASIS IS WATERMAN STEAMSHIP CORPORATION.

4. CERTAIN OTHER STEAMSHIP LINES WHICH WERE MEMBERS OF THE AMERICAN WEST AFRICAN FREIGHT CONFERENCE WERE SHOWN AS PARTICIPATING CARRIERS IN AMERICAN WEST AFRICAN FREIGHT CONFERENCE EASTBOUND FREIGHT TARIFF NO. 4, EFFECTIVE MARCH 1, 1951, WHICH, IN APPENDIX "A" THERETO, PUBLISHED A SPECIFIC RATE OF $27 PER TON OF 2,240 POUNDS FROM UNITED STATES NORTH ATLANTIC PORTS TO PRAIA, AZORES. THE RATE IN QUESTION APPLIED ON NORTH CAROLINA PINE LUMBER, WITHOUT REGARD TO PACKING REQUIREMENTS.

IN THE CIRCUMSTANCES NO REASON IS APPARENT WHY A RATE OF $27 PER TON OF 2,240 POUNDS SHOULD NOT BE USED AS A PROPER MEASURE OF THE CHARGES DUE THE PRUDENTIAL STEAMSHIP CORPORATION FOR THE SERVICES PERFORMED IN TRANSPORTING THE LUMBER INCLUDED IN THE CARGO COVERED BY GOVERNMENT BILL OF LADING NO. WW-8503885, DATED MAY 4, 1951. WE THEREFORE WOULD NOT BE WARRANTED IN AUTHORIZING THE PAYMENT OF PUBLIC FUNDS FOR ANY AMOUNT IN EXCESS OF THAT FOUND ALLOWABLE BY OUR TRANSPORTATION DIVISION WHICH GAVE EFFECT TO SUCH RATE ON THE LUMBER COVERED BY THE DESIGNATED BILL OF LADING. THE AMOUNT OVERPAID, $107,557.28, SHOULD BE PROMPTLY REFUNDED TO OBVIATE THE NECESSITY OF UNDERTAKING APPROPRIATE ACTION TO ENFORCE COLLECTION.