B-146559, JANUARY 22, 1962, 41 COMP. GEN. 464

B-146559, JANUARY 22, 1962, 41 COMP. GEN. 464

TRANSPORTATION - RATES - DOCUMENT DEFECTS - CORRECTION THE FAILURE OF A MOTOR CARRIER TO INDICATE ON THE SHIPPING DOCUMENTS, AT THE TIME A SHIPMENT MOVING UNDER A GOVERNMENT BILL OF LADING WAS TENDERED, THAT THE GOVERNMENT HAD RESERVED A PORTION OF THE CAPACITY OF THE CARRIER AS REQUIRED UNDER THE CARRIER'S PUBLISHED TARIFF FOR RESERVED SPACE SHIPMENTS IS A DEFECT WHICH CANNOT BE CURED BY LATER STATEMENTS OF THE SHIPPER'S INTENTIONS; THEREFORE, THE OVERPAYMENT COLLECTED FROM THE CARRIER ON THE BASIS THAT THE HIGHER RATE FOR A RESERVED SPACE SHIPMENT WAS NOT FOR APPLICATION MAY NOT BE REFUNDED.

TO THE UNITED VAN LINES, INC., JANUARY 22, 1962:

WE REFER TO YOUR REQUEST FOR A REVIEW OF OUR SETTLEMENT CERTIFICATE DATED AUGUST 29, 1961 (OUR CLAIM NO. TK 659582, YOUR ORDER NO. 696-55 60), WHICH DISALLOWED YOUR CLAIM, STATED IN YOUR LETTER OF JULY 26, 1961, FOR $100.89. THE AMOUNT CLAIMED REPRESENTS YOUR REFUND OF THE AMOUNT OF AN OVERPAYMENT FOUND IN OUR AUDIT OF THE ORIGINAL CHARGES OF $308, COLLECTED BY YOU ON YOUR BILL NO. 696-55-60 FOR TRANSPORTING A FLIGHT SIMULATOR, WEIGHING 1,581 POUNDS AND HAVING A VOLUME OF 296 CUBIC FEET, FROM GRAND PRAIRIE, TEXAS, TO EL TORO, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING NO. A-1828709, IN JULY 1960.

THE TRANSPORTATION CHARGES ORIGINALLY COLLECTED BY YOU WERE BASED ON A RATE OF $11 PER 100 POUNDS, SHOWN IN HOUSEHOLD GOODS CARRIERS' BUREAU MILITARY RATE TARIFF, I.C.C. NO. 1, TO APPLY TO A DISTANCE OF 1,424 MILES AND A WEIGHT OF 2,800 POUNDS, USED BY YOU AS THE MINIMUM WEIGHT FOR THE SHIPMENT. NOTHING ON BILL OF LADING NO. A-1828709 OR ELSEWHERE IN THE PAYMENT RECORD INDICATED THE BASIS FOR THE APPLICATION OF THE 2,800 POUND MINIMUM WEIGHT. FOR THAT REASON THE BASIS SHOWN ON OUR NOTICE OF OVERPAYMENT ( USGAO FORM 1003), DATED MARCH 28, 1961, USED A RATE OF $13 PER 100 POUNDS, WHICH IS SHOWN IN THE MILITARY RATE TARIFF TO APPLY TO A DISTANCE OF 1,424 MILES AND TO A WEIGHT OF 1,581 POUNDS, THE ACTUAL WEIGHT OF THE SHIPMENT. THE RESULTING OVERPAYMENT, $100.89, WAS REFUNDED BY YOUR CHECK WHICH WAS ENCLOSED WITH YOUR LETTER OF JULY 26, 1961. THE CLAIM PRESENTED BY THAT LETTER WAS DISALLOWED BY THE SETTLEMENT CERTIFICATE OF AUGUST 29, 1961, WHICH REPRESENTED THE "FINAL ACTION" TAKEN BY OUR TRANSPORTATION DIVISION.

TO SUPPORT YOUR CLAIM FOR THE $100.89, AND TO SUPPORT THE APPLICATION OF THE 2,800 POUND MINIMUM WEIGHT, YOU SENT US A COPY OF GOVERNMENT BILL OF LADING CORRECTION ( NAV S AND A FORM 1074), DATED MAY 15, 1961, WHICH PURPORTED TO AUTHORIZE THE FOLLOWING CORRECTION TO BE MADE ON ORIGINAL GOVERNMENT BILL OF LADING NO. A-1828709: " ADD THE FOLLOWING: SPACE RESERVATIONS MADE FOR 400 CU. FT. SHIPMENT MOVING AT WEIGHT OF 2,800 POUNDS.' YOUR CLAIM WAS DISALLOWED BECAUSE, AT THE TIME THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER AT GRAND PRAIRIE, TEXAS, THE ORIGINAL BILL OF LADING DID NOT CONTAIN THE ANNOTATION REQUIRED BY RULE 5 (D) OF HOUSEHOLD GOODS CARRIERS' BUREAU TARIFF NO. 78-B, MF-1I.C.C. NO. 90, TO BE MARKED OR STAMPED ON THE BILL OF LADING AND FREIGHT BILL WHEN A SHIPPER WISHES TO RESERVE A PORTION OF THE CAPACITY OF A VEHICLE BY ORDERING A SPECIFIC QUANTITY OF SPACE. TARIFF NO. 78-B IS ONE OF THE PUBLISHED TARIFFS PARTICIPATED IN BY UNITED VAN LINES WHICH CONTAINS RULES AND REGULATIONS AND WHICH IS INCORPORATED BY REFERENCE INTO THE MILITARY RATE TARIFF. YOU STATE THAT THE RESERVATION OF SPACE IN THE VEHICLE WAS MADE KNOWN VERBALLY TO THE CARRIER AT THE TIME OF LOADING; THAT YOU SHOULD NOT BE PENALIZED FOR THE GOVERNMENT'S FAILURE TO PROPERLY ANNOTATE THE GOVERNMENT BILL OF LADING, AND THAT WHILE YOU ADMIT THE CARRIER'S ERROR IN FAILING TO STAMP THE STANDARD HOUSEHOLD GOODS BILL OF LADING AND FREIGHT BILL TO INDICATE THE RESERVATION OF SPACE, YOU FIND IT DIFFICULT TO BELIEVE THAT THE PURPORTED ADMINISTRATIVE ERROR CANNOT BE CORRECTED NEARLY A YEAR AFTER THE SHIPMENT MOVED.

THE APPLICABLE RATES ON THE SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING NO. A-1828709 ARE CONTAINED IN THE MILITARY RATE TARIFF, I.C.C. NO. 1, WHICH SETS FORTH REDUCED RATES, TENDERED TO SEVERAL DEPARTMENTS OF THE GOVERNMENT UNDER SECTIONS 22 AND 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 AND 317 (B). THE TITLE PAGE OF THE TENDER CONTAINS THIS PARAGRAPH: " FOR RULES AND REGULATIONS GOVERNING APPLICATION OF THIS TARIFF REFER TO RULES AND REGULATIONS CONTAINED IN CARRIER'S PUBLISHED TARIFF ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.' THE "PUBLISHED ARIFF" OF UNITED VAN LINES CONTAINING THE RULES AND REGULATIONS GOVERNING THIS SHIPMENT IS HOUSEHOLD GOODS CARRIERS' BUREAU TARIFF NO. 78-B, MF- 1I.C.C. 90, AND RULE 5 (D) OF THAT TARIFF (SUPPLEMENT NO. 3, EFFECTIVE APRIL 7, 1960), TITLED " SPACE RESERVATION FOR A PORTION OF VEHICLE," READS AS FOLLOWS:

SUBJECT TO AVAILABILITY OF EQUIPMENT, SHIPPER MAY RESERVE A PORTION OF THE CAPACITY OF A VEHICLE BY ORDERING A SPECIFIC QUANTITY OF SPACE, IN UNITS OF 100 CU. FT., AND ACCEPTING TRANSPORTATION CHARGES BASED ON ACTUAL WEIGHT OF SHIPMENT SUBJECT TO MINIMUM TRANSPORTATION CHARGES AS FOLLOWS:

CHART

300 CU. FT. OR LESS----------------------------------- 2,100 POUNDS

MORE THAN 300 CU. FT. -------------------------------- 700 POUNDS

PER 100 CU. FT. UNIT ORDERED

BILL OF LADING AND FREIGHT BILL TO BE MARKED OR STAMPED:

SPACE OF--------------------1CU. FT. ORDERED BY SHIPPER

SHIPMENT MOVING AT WEIGHT OF ----------------1POUNDS

ACTUAL WEIGHT ----------------1POUNDS

NEITHER THE BILL OF LADING NOR THE FREIGHT BILL ARE MARKED OR STAMPED AS REQUIRED BY THIS RULE.

THE MILITARY RATE TARIFF, WHICH EXPRESSLY REFERS TO THE ABOVE-CITED TARIFF, CONTAINS NOTHING THAT PERMITS ANY VARIATION OR EXCEPTION FROM, OR MAKES ANY PROVISION FOR WAIVER OF, THE TARIFF RULES OR REGULATIONS GOVERNING SHIPMENTS MADE UNDER THE TENDER. THUS, IN THE ABSENCE OF ANY VARIATION, EXCEPTION, OR PROVISION FOR WAIVER IN THE TENDER ITSELF, WE MUST APPLY THE WELL-ESTABLISHED PRINCIPLE OF TRANSPORTATION LAW THAT THE RULES IN A TARIFF CANNOT BE WAIVED. DAVIS V. HENDERSON, 266 U.S. 92 (1924); EMPIRE BOX CORP. V. DELAWARE L AND W R. CO., 171 F.2D 389 (1948); NORTH COAST MFG. CORP. V. UNION PACIFIC RR. CO., 185 F.1SUPP. 287 (1960); GUS BLASS CO. V. POWELL BROS. TRUCKING CO., 53 M.C.C. 603 (1951).

IN THE GUS BLASS CASE, INVOLVING A TARIFF ANNOTATION REQUIREMENT SUBSTANTIALLY SIMILAR IN EFFECT TO THE ONE IN TARIFF NO. 78-B, THE INTERSTATE COMMERCE COMMISSION HELD THAT THE OMISSION OF A REQUIRED BILL OF LADING ENDORSEMENT WAS A DEFECT FATAL TO THE APPLICATION OF TRANSPORTATION CHARGES BASED ON AN EXCLUSIVE-USE-OF-VEHICLE RULE EVEN THOUGH EXCLUSIVE-USE-OF-VEHICLE SERVICE ACTUALLY WAS REQUESTED AND FURNISHED. SEE, ALSO, SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FEDERAL CARRIERS CASES 710. THE FACT THAT THE GOVERNMENT PREPARED ITS OWN BILL OF LADING, AN ACCEPTED PRACTICE OF LARGE BUSINESS ENTERPRISES (SEE DOMESTIC BILL OF LADING AND LIVE STOCK CONTRACT, 172 I.C.C. 362, 364 (1931); EMERGENCY FREIGHT CHARGES, 1935, 208 I.C.C. 4, 51), DOES NOT SEEM MATERIAL IN THIS PARTICULAR CASE, SINCE YOUR OWN FORM OF BILL OF LADING AND FREIGHT BILL, ON WHICH YOU HAVE SHOWN THE MINIMUM WEIGHT BASIS OF 2,800 POUNDS, DOES NOT CONTAIN THE REQUIRED NOTATION. ARE OF THE VIEW, THEREFORE, THAT, UNDER THE AUTHORITY OF THE GUS BLASS AND SOUTHERN KNITWEAR CASES, CITED ABOVE, THE ABSENCE OF THE NOTATION ON THE SHIPPING DOCUMENTS CONCERNING THE RESERVATION OF SPACE REQUIRED BY RULE 5 (D) OF TARIFF 78-B, A RULE WHICH CANNOT BE WAIVED, IS A DEFECT WHICH CANNOT BE CURED BY LATER STATEMENTS OF SHIPPERS' INTENTIONS, AND WE CANNOT AUTHORIZE THE ALLOWANCE OF YOUR CLAIM.

OUR SETTLEMENT CERTIFICATE DATED AUGUST 29, 1961, IS NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE AND, ACCORDINGLY, IT IS SUSTAINED.