B-140329, APRIL 5, 1960, 39 COMP. GEN. 678

B-140329, APRIL 5, 1960, 39 COMP. GEN. 678

TRANSPORTATION - MOTOR CARRIER SHIPMENTS - SECTION 22 QUOTATIONS - BILL OF LADING ISSUANCE - SHIPMENTS MOVING IN MORE THAN ONE VEHICLE A RESTRICTIVE NOTE IN A MOTOR CARRIER QUOTATION UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22; ID. 317 (B), WHICH MAKES A TRUCKLOAD RATING ON A PARTICULAR ITEM APPLICABLE TO THE ACTUAL WEIGHT LOADED IN THE VEHICLE USED, SUBJECT TO A MINIMUM WEIGHT OF 25,000 POUNDS, BUT WHICH REQUIRES THE ISSUANCE OF SEPARATE BILLS OF LADING FOR THE CONTENTS OF EACH VEHICLE IS TO BE INTERPRETED--- IN VIEW OF THE STATUTORY DUTY ON THE CARRIER TO ISSUE BILLS OF LADING--- AS A PART OF THE OFFER, IMPOSING ON THE CARRIER (IN WHOSE EXCLUSIVE KNOWLEDGE IS THE CAPACITY AND AVAILABILITY OF THE VEHICLES) WHEN TENDERED A SHIPMENT WHICH EXCEEDS THE CAPACITY OF THE VEHICLES, TO INFORM THE SHIPPER AND TO SEE TO THE ISSUANCE OF THE NECESSARY ADDITIONAL BILLS OF LADING. ALTHOUGH MANY LARGE SHIPPERS, INCLUDING THE UNITED STATES GOVERNMENT, ISSUE THEIR OWN SHIPPING DOCUMENTS, MAINLY FOR THE CARRIER'S CONVENIENCE, THE CARRIERS HAVE A STATUTORY DUTY UNDER 49 U.S.C. 20 (11), ID. 319, TO ISSUE BILLS OF LADING AND THEY MAY NOT BE RELIEVED FROM THIS DUTY. THE FAILURE OF A MOTOR CARRIER, UNDER A SECTION 22 QUOTATION WHICH PROVIDES FOR THE ISSUANCE OF SEPARATE BILLS OF LADING FOR EACH VEHICLE, TO REQUIRE THE ISSUANCE OF AN ADDITIONAL BILL OF LADING AT THE TIME A GOVERNMENT SHIPMENT WAS ACCEPTED UNDER ONE BILL OF LADING WHEN THE SHIPMENT WAS ACTUALLY MOVED TO THE DESTINATION IN TWO VEHICLES DOES NOT MAKE THE GOVERNMENT LIABLE FOR ADDITIONAL TRANSPORTATION CHARGES.

TO TURNER'S EXPRESS, INC., APRIL 5, 1960:

CONSIDERATION HAS BEEN GIVEN TO YOUR REQUEST FOR A REVIEW OF OUR SETTLEMENT MADE IN CLAIM TK-562301, DATED JULY 13, 1959. THIS SETTLEMENT DISALLOWED YOUR CLAIM FOR $271.31 ADDITIONAL TO THE CHARGES PAID TO THE DELIVERING CARRIER, THE NEW YORK AND NEW BRUNSWICK AUTO EXPRESS COMPANY, FOR THE TRANSPORTATION OF A SHIPMENT OF ORDNANCE MATERIAL ON BILL OF LADING WY-2582224, DATED SEPTEMBER 22, 1953.

FOR THE SERVICE FURNISHED, THE DELIVERING CARRIER ASSESSED AND WAS PAID CHARGES BASED UPON AN EXCEPTIONS RATING PROVIDED IN ITEM 40 MIDDLE ATLANTIC CONFERENCE GOVERNMENT RATE SHEET NO. 450. APPARENTLY, IN THE COURSE OF INTERLINE SETTLEMENT, YOU QUESTIONED THE CORRECTNESS OF THOSE CHARGES, ARGUING THAT THE BASIS OF RATINGS NAMED IN ITEM 40 APPLIED ONLY WHERE THERE WAS COMPLIANCE WITH THE CONDITION CONTAINED THEREIN THAT " SEPARATE BILLS OF LADING AND SHIPPING ORDERS MUST BE ISSUED FOR THE CONTENTS OF EACH VEHICLE AND IN NO CASE MAY A SINGLE SHIPMENT EXCEED THE CARRYING CAPACITY OF THE VEHICLE USED.' THE PAYEE-CARRIER THEREUPON ASKED OUR TRANSPORTATION DIVISION FOR ITS VIEWS CONCERNING THE APPLICABILITY OF ITEM 40. AFTER THE CIRCUMSTANCES SURROUNDING THE TENDER OF THIS SHIPMENT AT ORIGIN HAD BEEN INVESTIGATED, THE NEW YORK AND NEW BRUNSWICK AUTO EXPRESS COMPANY WAS INFORMED THAT THE QUESTION WITH RESPECT TO THE NECESSITY FOR ISSUING SEPARATE BILLS OF LADING FOR EACH VEHICLE DID NOT ARISE, SINCE THE SHIPPER STATED THE GOODS WERE TENDERED TO AND ACCEPTED BY TURNER'S EXPRESS, INC., AS A SINGLE SHIPMENT MOVING ON ONE GOVERNMENT BILL OF LADING ON ONE TRUCK AND THAT TWO SEALS WERE USED ON THE TRUCK. THE SAME INFORMATION WAS FURNISHED YOU BY LETTER OF NOVEMBER 5, 1956, FILE T- FSD-DL-VOU-174759-11/53-JLW NY AND NBAE-500/56. ON SEPTEMBER 9, 1958, YOU PRESENTED YOUR CLAIM FOR $271.31, SUPPORTED BY A WAIVER FROM THE PAYEE- CARRIER AND BY COPIES OF YOUR ORIGIN BILL N 112368 (PARTIALLY ILLEGIBLE), AND OF NEW YORK AND NEW BRUNSWICK AUTO EXPRESS COMPANY PRO NOS. 354677-A AND B, EVIDENCING THAT THE GOODS IN FACT MOVED IN TWO TRAILERS. THIS CLAIM WAS DISALLOWED ON THE BASIS OF THE ADMINISTRATIVE ADVICE THAT THE SHIPMENT WAS LOADED IN ONE VEHICLE, AND YOUR PRESENT REQUEST FOR REVIEW FOLLOWED.

GOVERNMENT RATE SHEET NO. 450 IS A CONTINUING OFFER TO THE UNITED STATES, MADE UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, ID. 317 (B), TO TRANSPORT CERTAIN OF ITS GOODS AT THE EXCEPTIONS RATINGS PROVIDED THEREIN. ITEM 40 CONTAINS A TRUCKLOAD RATING OF CLASS 2 FOR SHIPMENTS OF " FIREARMS OR PARTS, NOI" AND " MACHINE GUNS OR PARTS, NOI," WHICH APPLIES WHEN A STATEMENT AS TO THE ACTUAL OR ESTIMATED VALUE IS NOT FURNISHED THE CARRIER, SUBJECT TO A TRUCKLOAD MINIMUM WEIGHT OF 25,000 POUNDS. THIS ITEM IS SUBJECT TO A RESTRICTIVE NOTE WHICH MAKES THE RATING APPLICABLE TO THE ACTUAL WEIGHT LOADED IN THE VEHICLE USED SUBJECT TO THE MINIMUM WEIGHT NAMED. THE NOTE ALSO PROVIDES THAT SEPARATE BILLS OF LADING AND SHIPPING ORDERS MUST BE ISSUED FOR THE CONTENTS OF EACH VEHICLE AND PROVIDES THAT A SINGLE SHIPMENT MAY NOT EXCEED THE CARRYING CAPACITY OF THE VEHICLE USED. CLEARLY, THE OFFER SO MADE CONNOTES A HOLDING-OUT BY CARRIERS PARTIES THERETO THAT THEY WOULD ACCEPT AND TRANSPORT SINGLE SHIPMENTS OF THE DESCRIBED GOODS AND THAT THEY HAD AVAILABLE AND WOULD FURNISH VEHICLES CAPABLE OF TRANSPORTING AT LEAST THE MINIMUM TRUCKLOAD WEIGHT OF 25,000 POUNDS. THERE IS IMPOSED UPON CARRIERS A STATUTORY DUTY TO ISSUE BILLS OF LADING, 49 U.S.C. 20 (11), 319; VALCO MANUFACTURING COMPANY V. C. RICHARD AND SONS, INC., 92 A.2D 501; SCHROEDER V. RAILWAY EXPRESS AGENCY, INC., 75 S.E.2D 393; EXPOSITION COTTON MILLS V. SOUTHERN RY. CO., 234 I.C.C. 441, FROM WHICH THEY ARE NOT RELIEVED BY THE CIRCUMSTANCE THAT MANY LARGE SHIPPERS, INCLUDING THE UNITED STATES, ISSUE THEIR OWN SHIPPING DOCUMENTS, MAINLY FOR THE CARRIERS' CONVENIENCE. THE LIGHT OF THIS STATUTORY DUTY, THE RESTRICTIVE NOTE WOULD LOGICALLY SEEM TO IMPORT, AS PART OF THE OFFER, THAT CARRIERS (IN WHOSE EXCLUSIVE KNOWLEDGE IS THE CAPACITY AND AVAILABILITY OF THEIR VEHICLES) WHEN TENDERED A SHIPMENT WHICH EXCEEDS THE CAPACITY OF THOSE VEHICLES, WILL SO INFORM THE SHIPPER AND CAUSE TO BE ISSUED THE NECESSARY ADDITIONAL BILL OR BILLS OF LADING.

FROM THE ADMINISTRATIVE REPORT PREVIOUSLY RELATED TO YOU, IT SEEMS CLEAR THAT THE INTENTION OF THE SHIPPER, THE TRANSPORTATION OFFICER AT FORT EUSTIS, WAS TO MAKE ONE SHIPMENT TO RARITAN ARSENAL, AND THAT IN FURTHERANCE OF THIS INTENTION ONE BILL OF LADING WAS PREPARED AND PRESENTED TO YOUR COMPANY AS INITIAL CARRIER. THE BILL OF LADING RECORD IS CLEAR THAT TURNER'S EXPRESS, INC., AS THE INITIAL CARRIER, ACCEPTED THE SHIPMENT AS TENDERED. WHILE THE FREIGHT BILL COPIES FURNISHED US SUGGEST THAT THE GOODS ACTUALLY MOVED THROUGH TO DESTINATION IN TWO TRAILERS, BOTH LOADED BELOW THE TRUCKLOAD MINIMUM WEIGHT, ONE WITH 20,540 POUNDS AND THE OTHER WITH 17,764 POUNDS, THERE IS NOTHING IN THE PRESENT RECORD THAT EXPLAINS THE FAILURE TO COMPLY WITH THE SHIPPER'S INTENTION IN TENDERING THE GOODS, AND THE CARRIER'S APPARENT UNDERSTANDING OF THIS INTENTION IN ACCEPTING THEM WITHOUT EXCEPTION, THAT THERE BE MADE ONE SHIPMENT ON ONE BILL OF LADING IN ONE TRUCK. THERE IS NO SHOWING THAT THE SHIPMENT EXCEEDED THE CARRYING CAPACITY OF THE VEHICLES COMMONLY USED BY YOUR COMPANY IN OVER-THE-ROAD TRANSPORTATION SERVICE AND HELD OUT, BY YOUR PARTICIPATION IN ITEM 40 IN GOVERNMENT RATE SHEET NO. 450, AS BEING CAPABLE OF CONTAINING AT LEAST 25,000 POUNDS OF FIREARMS, MACHINE GUNS, AND PARTS THEREOF. IT IS NOTED THAT THE ITEM DOES NOT INDICATE THE MAXIMUM LOAD THE CARRIER WOULD REGARD AS A CAPACITY LOAD FOR A SINGLE VEHICLE, AND LIMITING THE RULE TO A BASIS OF WEIGHT LOADED ON THE VEHICLE USED CREATES UNCERTAINTY AS TO WHAT THE CHARGES ON ANY GIVEN SHIPMENT MIGHT BE, SINCE THE BASIS OF CHARGES WOULD BE DEPENDENT UPON WHETHER OR NOT THE CARRIER FURNISHED A PARTICULAR VEHICLE TO ACCOMMODATE THE SHIPMENT OFFERED. EVEN IF THE ENTIRE SHIPMENT WAS IN FACT INCAPABLE OF BEING LOADED IN A SINGLE VEHICLE OF THE SIZE CUSTOMARILY OFFERED BY YOUR COMPANY FOR OVER-THE-ROAD TRANSPORTATION, YOUR REPRESENTATIVE UPON RECEIPT OF THE SHIPMENT DID NOT ISSUE OR CAUSE TO BE ISSUED BY THE SHIPPER THE NECESSARY SECOND BILL OF LADING CONTEMPLATED BY ITEM 40.

IN THE CIRCUMSTANCES, THE TRANSPORTATION OFFICER, IN TENDERING ONE SHIPMENT ON ONE BILL OF LADING FOR TRANSPORTATION ON ONE TRUCK, DID ALL THAT WAS THEN REQUIRED OF THE SHIPPER TO ACCEPT THE OFFER MADE IN ITEM 40. THE UNITED STATES MAY NOT BE PENALIZED BY THE ASSESSMENT OF ADDITIONAL CHARGES BECAUSE OF THE FAILURE OF THE INITIAL CARRIER TO FURNISH A VEHICLE OF SUFFICIENT SIZE TO CONTAIN THE SHIPMENT; OR, ASSUMING A VALID EXCUSE THEREFOR, BECAUSE OF THE CARRIER'S FAILURE TO REQUIRE COMPLIANCE WITH THE RESTRICTIVE NOTE IN ITEM 40, GOVERNMENT RATE SHEET NO. 450, BY EXERCISING ITS STATUTORY OBLIGATION WITH RESPECT TO THE ISSUANCE OF BILLS OF LADING. THE DISALLOWANCE OF YOUR CLAIM WAS, THEREFORE, PROPER AND IT IS SUSTAINED.