B-138981, SEP. 29, 1959

B-138981, SEP. 29, 1959

TO SCHUSTER'S EXPRESS, INC.:

IN YOUR LETTER OF FEBRUARY 26, 1959, YOU REQUEST REVIEW OF OUR DETERMINATION THAT YOU WERE OVERPAID $195.40 ON A SHIPMENT OF ELECTRICAL INSTRUMENTS, NOI, TRANSPORTED FROM HOUSTON, TEXAS, TO NEW LONDON, CONNECTICUT, UNDER GOVERNMENT BILL OF LADING N-32834655 (YOUR PRO NO. 2- 475272), IN MARCH 1957.

THE OVERPAYMENT WHICH YOU HAVE BEEN REQUESTED TO REFUND WAS INITIALLY STATED ON THE BASIS THAT THE CHARGES ASSESSED BY YOU ON THE SHIPMENT WERE UNREASONABLE IN VIEW OF THE DETERMINATIONS MADE BY THE INTERSTATE COMMERCE COMMISSION IN CERTAIN CASES. YOU URGE THAT THE ASSESSED CHARGES ARE REASONABLE AND SUBMIT ARGUMENT AND PAPERS IN SUPPORT OF THAT VIEW. HOWEVER, THE UNITED STATES SUPREME COURT RECENTLY HELD THAT A SHIPPER OF GOODS BY A MOTOR COMMON CARRIER UNDER THE INTERSTATE COMMERCE ACT CANNOT CHALLENGE IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE CARRIER'S CHARGES WHICH WERE MADE IN ACCORDANCE WITH THE TARIFF GOVERNING THE SHIPMENT. T.I.M.E., INC. V. UNITED STATES, 359 U.S. 464. THUS, THE ONLY QUESTION NOW FOR CONSIDERATION IS WHETHER THE CHARGES ORIGINALLY COLLECTED BY YOU WERE PROPERLY APPLICABLE UNDER YOUR TARIFFS.

BILL OF LADING N-32834655 WAS ISSUED ON MARCH 15, 1957, BY THE OFFICE OF THE INSPECTOR OF NAVAL MATERIAL, HOUSTON, TEXAS, TO COVER A SHIPMENT OF ELECTRICAL INSTRUMENTS, WEIGHING 9,000 POUNDS, WHICH WAS CONSIGNED BY THE COMMERCIAL ENGINEERING AND PRODUCTS COMPANY, HOUSTON, TEXAS, TO THE RECEIVING OFFICER, NAVY UNDERWATER SOUND LABORATORY, NEW LONDON, CONNECTICUT. THESE TYPEWRITTEN WORDS APPEAR IN THE BODY OF THE BILL OF LADING:

"EXCLUSIVE USE OF VEHICLE REQUESTED AND AUTHORIZED BY R/O 9N 9371207. NAVY SEALS APPLIED TO EQUIPMENT. DO NOT BREAK SEALS EXCEPT IN EMERGENCY OR WITH PRIOR APPROVAL OF THE NAVY DEPARTMENT. IF BROKEN, APPLY CARRIER SEALS IMMEDIATELY AND NOTIFY CONSIGNEE AND CONSIGNOR. TRAILER NO. 1122 NAVY SEALS:USN 742862"

FOR THIS TRANSPORTATION SERVICE YOU CLAIMED AND COLLECTED FREIGHT CHARGES OF $928.20 WHICH WERE ASSESSED UNDER THE "EXCLUSIVE USE OF EQUIPMENT" RULE, ITEM 150A, SUPPLEMENT NO. 72, EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION MOTOR FREIGHT TARIFF NO. 32, MF-I.C.C. NO. A 102. AS PROVIDED FOR IN THAT RULE, THE CHARGES REPRESENT A MINIMUM CHARGE WHICH IS BASED ON A MINIMUM WEIGHT OF 14,000 POUNDS AND A CLASS 100 RATE OF $6.63 PER 100 POUNDS, APPARENTLY APPLICABLE VIA THE ROUTE OF MOVEMENT.

ITEM 150A OF MOTOR FREIGHT TARIFF NO. 32 CONTAINS THE FOLLOWING PROVISION:

"EACH BILL OF LADING COVERING SHIPMENTS FOR WHICH EXCLUSIVE USE OF VEHICLE IS PROVIDED MUST BE MARKED OR STAMPED AS FOLLOWS:

"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER"

SHIPPERS SIGNATURE"

BILL OF LADING N-32834655 IS NOT MARKED OR STAMPED IN THE REQUIRED MANNER, THAT IS, THE NOTATION AS MADE, IS NOT IN STRICT CONFORMITY TO THAT TARIFF PROVISION AND WE DO NOT BELIEVE THAT THE CARRIERS HAVE ESTABLISHED ENTITLEMENT TO EXCLUSIVE USE CHARGES SINCE SUCH SERVICE IS NOT SHOWN TO HAVE BEEN "ORDERED BY THE SHIPPER," AS WOULD BE EVIDENCED BY THE SHIPPER'S SIGNATURE WHICH DOES NOT APPEAR UNDER THE BILL OF LADING NOTATION. THE NOTATION HERE INVOLVED, WHILE REFLECTING THAT EXCLUSIVE USE WAS REQUESTED, DOES NOT SPECIFICALLY INDICATE IN THE MANNER REQUIRED BY THE PERTINENT TARIFF PROVISION, THE PARTY RESPONSIBLE FOR THE NOTATION. THE RULES IN A TARIFF ARE PART OF THE TARIFF AND, UNLESS AUTHORIZED UNDER SECTIONS 22 AND 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 AND 317 (B), FOR FREE OR REDUCED RATE TRANSPORTATION, IT IS SETTLED LAW AND THE TARIFF RULES CANNOT BE WAIVED. DAVIS V. HENDERSON, 266 U.S. 92; EMPIRE BOX CORPORATION V. DELAWARE, L. AND W. R. CO., 171 F.2D 389; NATURAL PRODUCTS REFINING CO. V. CENTRAL RAILROAD CO. OF N.J., 216 I.C.C. 105; GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603, 605. STRICT COMPLIANCE WITH THE REQUIREMENTS OF SUCH RULES IS ESSENTIAL AS A CONDITION TO THEIR APPLICABILITY. SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED.CARR. CASES 610; SEE, ALSO, LOUISVILLE AND NASHVILLE R.R. V. MAXWELL, 237 U.S. 94, AND READING CO. V. DEXTER CARPENTER COAL ., 96F.SUPP. 650. SINCE BILL OF LADING N-32834655 IS NOT MARKED OR STAMPED IN THE MANNER REQUIRED BY ITEM 150A OF MOTOR FREIGHT TARIFF NO. 32, CHARGES ASSESSED UNDER THAT ITEM ARE NOT LEGALLY APPLICABLE TO THE SHIPMENT.

AS IS EVIDENT FROM THE TYPEWRITTEN WORDS APPEARING IN THE BODY OF THE BILL OF LADING, THE SHIPMENT, WHICH WEIGHED 9,000 POUNDS, WAS SEALED AT ORIGIN WITH INSTRUCTIONS NOT TO BREAK THE SEALS "EXCEPT IN EMERGENCY OR WITH PRIOR APPROVAL OF THE NAVY DEPARTMENT.' WE THINK THAT THIS FACT JUSTIFIES THE CONCLUSION THAT THE SHIPMENT WAS TENDERED AND RECEIVED AS A TRUCKLOAD SHIPMENT (GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603), AND THAT THE LEGALLY APPLICABLE FREIGHT CHARGES ARE THOSE DERIVED FROM THE USE OF A TRUCKLOAD RATE AND MINIMUM WEIGHT. SINCE THE RECORD SUGGESTS THAT THE INSTANT SHIPMENT WAS TENDERED AS A TRUCKLOAD AND REQUIRED NO HANDLING SUPERIOR TO THAT ACCORDED TRUCKLOAD SHIPMENTS THE BASIS NOW SET FORTH ON OUR NOTICE OF OVERPAYMENT (USAGAO FORM 1003), APPEARS TO BE CORRECT, AND THE AMOUNT SHOWN THEREON AS OVERPAID, $195.40, SHOULD BE PROMPTLY REFUNDED TO AVOID COLLECTION BY OTHER MEANS.

AS REQUESTED IN YOUR LETTER, WE ARE SENDING A COPY OF THIS DECISION TO THE STRICKLAND TRANSPORTATION COMPANY, INC. ..END :