B-127277, MAR. 28, 1956

B-127277, MAR. 28, 1956

TO P. A. CLARK, AUTHORIZED CERTIFYING OFFICER, UNITED STATES ATOMIC ENERGY COMMISSION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 8, 1956, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT A VOUCHER STATED IN FAVOR OF RAILWAY EXPRESS AGENCY, INC., IN THE AMOUNT OF $9.06 COVERING EXPRESS CHARGES ON A SHIPMENT OF ELECTRONIC TUBES.

IT APPEARS THAT THE SHIPMENT WAS MADE BY CADILLAC ELECTRONIC CORPORATION IN RESPONSE TO A DELIVERY ORDER ISSUED UNDER CONTRACT NO. GS-03S-NO. 14627. HOWEVER, INSTEAD OF MARKING SHIPMENT F.O.B. DESTINATION AS PROVIDED BY THE DELIVERY ORDER AND THE CONTRACT, SHIPMENT WAS MADE EXPRESS CHARGES COLLECT. THE CARRIER DELIVERED THE SHIPMENT TO THE GENERAL ELECTRIC COMPANY, THE ATOMIC ENERGY COMMISSION'S RECEIVING AGENT, WITHOUT COLLECTING THE EXPRESS CHARGES AND HAS ATTEMPTED UNSUCCESSFULLY TO COLLECT THE CHARGES FROM THE SHIPPER. PAYMENT WAS MADE TO THE SHIPPER FOR THE TUBES ON YOUR CERTIFICATION IN THE AMOUNT OF $219.70 AFTER DEDUCTION OF THE TIME DISCOUNT OFFERED, WITHOUT DEDUCTION OF THE AMOUNT OF THE EXPRESS CHARGES. IT IS STATED IN YOUR LETTER, IN SUBSTANCE, THAT THE USUAL PROCEDURE WAS FOLLOWED IN THIS MATTER AND THAT "HERETOFORE THERE NEVER HAD BEEN ANY REFUSAL ON THE PART OF THE SHIPPER TO PAY THE TRANSPORTATION CHARGES.' YOU INQUIRE WHETHER THIS OFFICE WILL MAKE DIRECT SETTLEMENT OR WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT FROM APPROPRIATED FUNDS OR WHETHER THE AMOUNT SHOULD BE PAID FROM YOUR PERSONAL FUNDS.

IT SEEMS CLEAR THAT THE CARRIER HAS A VALID CLAIM AGAINST THE UNITED STATES FOR THE AMOUNT OF THE UNPAID EXPRESS CHARGES. IN LOUISVILLE AND NASHVILLE RAILROAD COMPANY V. UNITED STATES, 267 U.S. 395, IT IS STATED:

"THE GENERAL RULE IS THAT, IF A CONSIGNEE ACCEPTS A SHIPMENT, HE BECOMES LIABLE AS A MATTER OF LAW FOR THE FULL AMOUNT OF FREIGHT CHARGES.'

SEE, ALSO, WATERS V. PFISTER AND VOGEL LEATHER COMPANY, 186 N.W. 173. THE CARRIER PROPERLY COULD HAVE REFUSED TO DELIVER THE SHIPMENT WITHOUT PAYMENT OF THE TRANSPORTATION CHARGES. SEE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY V. FINK, 250 U.S. 577 (63 L.ED. 1151), WHEREIN IT WAS HELD (QUOTING SYLLABUS 1):

"ONLY UPON PAYMENT OF THE APPLICABLE PUBLISHED RATE IS THE CONSIGNEE OF AN INTERSTATE SHIPMENT ENTITLED, UNDER THE EQUAL RATES REQUIREMENT OF THE INTERSTATE COMMERCE ACT, TO RECEIVE THE SHIPMENT.'

SINCE THE USUAL PROCEDURE WAS FOLLOWED IN THE MATTER AND PAYMENT OF THE INVOICE FOR THE MERCHANDISE WAS EXPEDITED IN ORDER TO TAKE ADVANTAGE OF THE DISCOUNT, IT IS CONCLUDED THAT YOU, AS CERTIFYING OFFICER, ARE NOT PROPERLY CHARGEABLE WITH NEGLIGENCE SO AS TO REQUIRE PAYMENT OF THE TRANSPORTATION CHARGES FROM YOUR PERSONAL FUNDS.

IN VIEW OF THE FOREGOING, THE VOUCHER MAY BE CERTIFIED BY YOU WITHOUT OBJECTION BY THIS OFFICE. THE TAX OF 26 CENTS REFERRED TO IN YOUR LETTER NEED NOT BE DEDUCTED IN VIEW OF ITS SMALL AMOUNTS AND THE FACT THAT IT SUBSEQUENTLY WILL BE PAID TO THE GOVERNMENT BY THE CARRIER.