B-141366, AUG. 19, 1960

B-141366, AUG. 19, 1960

TO HENNIS FREIGHT LINES, INC.:

BY YOUR LETTER OF JULY 29, 1960, YOUR CLAIM NO. CC-1429-6-58, HENNIS PRO NOS. 1-572726 AND 1-572785, YOU, IN EFFECT, REQUEST RECONSIDERATION OF OUR DECISION OF MARCH 10, 1960, B-141366, IN WHICH WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR EXCLUSIVE USE OF VEHICLES UNDER GOVERNMENT BILLS OF LADING NOS. WY -7171924 AND WY-7171913 COVERING SHIPMENTS TRANSPORTED DURING NOVEMBER 1956. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT NEITHER BILL OF LADING WAS MARKED NOR STAMPED WITH THE NOTATION "EXCLUSIVE USE OF VEHICLE (OR VEHICLES) ORDERED BY SHIPPER," WHICH WAS REQUIRED BY THE TARIFF AND THE DEFECT WAS NOT CONSIDERED CURED BY A STATEMENT ISSUED BY THE MARION ENGINEER DEPOT, U.S. ARMY, NEARLY TWO YEARS LATER, AND SIGNED BY ONE OLIVER E. BUSH, DESIGNATED AS "T.A. FOR T.O., " ATTESTING THAT EXCLUSIVE USE OF TRAILER WAS REQUESTED BUT THROUGH ERROR IN BILLING WAS NOT NOTED ON THE BILL OF LADING.

WITH YOUR REQUEST FOR RECONSIDERATION YOU AGAIN SUBMIT A COPY OF THE STATEMENT FROM THE MARION ENGINEER DEPOT AND STATE IN PART:

"* * * YOUR MR. WEITZEL HAS AGAIN DISALLOWED OUR REQUEST FOR PAYMENT OF THIS UNDERCHARGE BILL, REFUSING TO ACCEPT MR. BUSH'S STATEMENT AND BASING HIS REFUSAL ONLY ON THE TECHNICALITY THAT NOTATION REQUEST WAS NOT SHOWN ON THE BILL OF LADING.'

THE REQUIRED NOTATION IS NOT, HOWEVER, A MERE TECHNICALITY AS ALLEGED. SIMILAR ASSERTION WAS CONSIDERED AND REJECTED BY THE INTERSTATE COMMERCE COMMISSION IN GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603 AT PAGE 605. IN THAT CASE THE CARRIER HAD COLLECTED CHARGES BASED ON EXCLUSIVE-USE SERVICE WHICH HAD BEEN REQUESTED BY THE SHIPPER AND PERFORMED BY THE CARRIER, BUT NO NOTATION APPEARED ON EITHER THE BILL OF LADING OR THE FREIGHT BILL AS WAS REQUIRED BY THE TARIFF. THE CARRIER ARGUED, IN PART,"* * * THAT ITS FAILURE PROPERLY TO ENDORSE THE BILL OF LADING AND FREIGHT BILL DOES NOT RENDER INAPPLICABLE THE PROVISIONS OF THE RULE GOVERNING THE CHARGES TO BE ASSESSED, AND THAT THE REQUIREMENT FOR SUCH ENDORSEMENT IS SIMPLY A MATTER OF FORM, THE ABSENCE OF WHICH DOES NOT AFFECT THE REMAINING PROVISIONS OF THE RULE.' IN REPLY, THE COMMISSION STATED "WE THINK NOT. IT IS WELL SETTLED THAT A RULE CONTAINED IN A TARIFF IS A PART OF THE TARIFF, AND CANNOT BE WAIVED.' SEE ALSO SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CARRIERS CASES 710.

THE DECISION IN THE GUS BLASS CASE WAS RECENTLY REAFFIRMED IN A LETTER DATED AUGUST 2, 1960, UNDER FILE 195047 ADDRESSED TO BOWMAN TRANSPORTATION, INC., EAST GADSDEN, ALABAMA, COPY ENCLOSED, IN WHICH THE INTERSTATE COMMERCE COMMISSION HELD THAT THE CARRIER WAS NOT ENTITLED TO CHARGES COMPUTED ON THE BASIS OF THE VOLUME RATE AND A MINIMUM WEIGHT OF 22,000 POUNDS FOR EACH VEHICLE LOADED TO CAPACITY IN ACCORDANCE WITH THE CAPACITY LOAD RULE IN ITEM 4550 OF CENTRAL AND SOUTHERN MOTOR FREIGHT TARIFF MF-I.C.C.NO. 140, SINCE THE CARRIER HAD FAILED TO PLACE THE REQUIRED NOTATION ON THE GOVERNMENT BILL OF LADING. AS INDICATED IN THE GUS BLASS CASE, AND IN THE LETTER MENTIONED ABOVE, THE RULE IS WELL SETTLED THAT RULES, REGULATIONS AND CONDITIONS GOVERNING APPLICATION OF A RATE ARE A PART OF THE RATE AND WHEN PUBLISHED AND FILED WITH THE INTERSTATE COMMERCE COMMISSION IN ACCORDANCE WITH THE INTERSTATE COMMERCE ACT HAVE THE FORCE OF A STATUTE AND CANNOT BE VARIED BY EITHER WAIVER OR ESTOPPEL. WESTERN UNION TEL.CO. V. ESTEVE BROS. AND CO., 256 U.S. 567; ERIE R.R.CO. V. STONE, 244 U.S. 332, 336; BOSTON AND MAINE R.R. V. HOOKER, 233 U.S. 97; KANSAS SOUTHERN RY. V. CARL, 227 U.S. 639; MINNEAPOLIS AND ST. LOUIS RY. V. PACIFIC GAMBLE ROBINSON CO., 215 F.2D 126, 136; AMERICAN RAILWAY EXPRESS V. AMERICAN TRUST CO., 47 F.2D 16; AND UNION PACIFIC R.R. V. CORNELI SEED CO., 161 F.SUPP. 52. PLACEMENT OF THE REQUIRED NOTATION ON THE BILLS OF LADING IS, IN THIS CASE AS IN THE GUS BLASS CASE, SUPRA, A CONDITION UPON COMPLIANCE WITH WHICH THE CARRIER'S OBLIGATION TO PERFORM THE REQUESTED SERVICE AND ITS RIGHT TO COLLECT THE CHARGE DEPEND.

IN ADDITION, HOWEVER, YOU ARGUE THAT---

"UNDER SECTION 20 OF THE INTERSTATE COMMERCE ACT, THE CARRIER HAS THE OBLIGATION TO ISSUE THE BILL OF LADING. HOWEVER, IT IS THE PRACTICE OF THE GOVERNMENT TO ISSUE THEIR OWN BILLS OF LADING. THESE BILLS OF LADING ARE A SPECIAL FORM DESIGNED BY AND UNDER THE COMPLETE CONTROL OF THE UNITED STATES GOVERNMENT. THE CARRIERS ARE NOT AUTHORIZED TO CORRECT, AMEND, OR OTHERWISE ALTER GOVERNMENT BILLS OF LADING IN ANY MANNER WHATSOEVER. THEREFORE, IT IS OUR CONTENTION THAT WHEN THE TRANSPORTATION OFFICER FAILS TO ISSUE A BILL OF LADING IN ACCORDANCE WITH REGULATIONS ESTABLISHED FOR HIS GUIDANCE, IT IS THEREFORE UNREASONABLE TO HOLD THE CARRIER RESPONSIBLE FOR SUCH FAILURE ON THE PART OF THE TRANSPORTATION OFFICER BY REQUIRING THE CARRIER TO RECEIVE LESS CHARGES THAN IT PROPERLY IS ENTITLED TO UNDER ITS TARIFF.'

HOWEVER, THIS PRACTICE DOES NOT APPEAR TO BE PECULIAR TO THE GOVERNMENT. IT SEEMS TO BE THE ACCEPTED PRACTICE OF LARGE BUSINESS ENTERPRISES, AS WELL AS OF THE GOVERNMENT, TO PREPARE THEIR OWN BILLS OF LADING. SEE DOMESTIC BILL OF LADING AND LIVESTOCK CONTRACTS, 172 I.C.C. 362, 364; EMERGENCY FRT. CHARGES, 1935, 208 I.C.C. 4, 51. THAT FACT, HOWEVER, DOES NOT RELIEVE THE MOTOR CARRIERS FROM THE DUTY IMPOSED ON THEM BY SECTIONS 20 (11) AND 219 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11) AND 319, OF ISSUING, AS DISTINGUISHED FROM PREPARING APPROPRIATE BILLS OF LADING. WHEN BILLS OF LADING ARE PREPARED BY SHIPPERS, MOTOR CARRIERS HAVE THE OBLIGATION OF REFRAINING FROM EXECUTING THOSE WHICH LAWFULLY CANNOT BE COMPLIED WITH OR WHICH CONTAIN CONFLICTING PROVISIONS. SEE EXPOSITION COTTON MILLS V. SOUTHERN RY.CO., 234 I.C.C. 441, 442; SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY R.CO., 274 I.C.C. 245, 247. WHILE GOVERNMENT BILLS OF LADING ARE ESPECIALLY DESIGNED FOR USE BY THE GOVERNMENT, THERE IS NOTHING ON THEM WHICH RELIEVES CARRIERS, OR THE GOVERNMENT, FROM OBSERVING THE CONDITIONS IMPOSED BY EXCLUSIVE USE OR SIMILAR RULES IN A TARIFF, EXCEPT AS TO DEPARTURES OR WAIVERS PROPERLY MADE THE SUBJECT OF AGREEMENT UNDER SECTIONS 22 AND 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 AND 317 (B).

ACCORDINGLY, SINCE THE SUBJECT BILLS OF LADING WERE NOT PROPERLY ANNOTATED, AND THERE IS NO EVIDENCE IN THE RECORD THAT THEY WERE NOT AVAILABLE FOR ANNOTATION, OUR PRIOR DECISION SUSTAINING THE DISALLOWANCE OF YOUR CLAIM IS AFFIRMED.