B-144872, SEP. 20, 1961

B-144872, SEP. 20, 1961

TO THE SOUTHWESTERN TRANSPORTATION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 11, 1961, AND MAY 30, 1961, FILE 620.03-6, REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 14, 1960, WHICH DISALLOWED A CLAIM FOR $1,973.26, PRESENTED TO THIS OFFICE BY HAYES FREIGHT LINES, INC., ON ITS BILL NO. 179-A. THE CLAIM IS FOR ADDITIONAL FREIGHT CHARGES WHICH ALLEGEDLY WOULD BE DUE THE CARRIER ON THE BASIS OF RATES FOR SPECIAL MILITARY AND EXCLUSIVE-USE-OF-VEHICLE SERVICE ON SHIPMENTS OF AMMUNITION FOR CANNON THAT MOVED FROM ORDNANCE, OREGON, TO FORT KNOX, KENTUCKY, DURING SEPTEMBER AND OCTOBER 1959, UNDER GOVERNMENT BILLS OF LADING NOS. WY 10163629, WY-10163630, WY-10163636, AND WY-10163639. THE TRANSPORTATION CHARGES ORIGINALLY CLAIMED AND COLLECTED BY HAYES FREIGHT LINES WERE COMPUTED ON THE BASIS OF A COMBINATION OF TRUCKLOAD RATES.

IN OUR SETTLEMENT CERTIFICATE ADDRESSED TO HAYES FREIGHT LINES IT WAS POINTED OUT THAT DISALLOWANCE OF THE CLAIM WAS BASED ON THE FACT THAT NONE OF THE BILLS OF LADING INVOLVED WERE ANNOTATED IN ACCORDANCE WITH THE REQUIREMENT SET FORTH IN THE APPLICABLE TARIFF PROVISIONS FOR SPECIAL MILITARY SERVICE OR EXCLUSIVE-USE-OF-VEHICLE SERVICE. WHILE ORDINARILY YOUR COMPANY, NOT BEING THE DELIVERING CARRIER TO WHICH, UNDER THE GOVERNMENT BILL OF LADING CONTRACT, THE TRANSPORTATION CHARGES WERE PAID,WOULD NOT BE THE PROPER PARTY ENTITLED TO OUR REVIEW OF THE SETTLEMENT, IT IS NOTED THAT THE DELIVERING CARRIER, HAYES FREIGHT LINES, MAINTAINS AN INTEREST IN THE APPLICATION FOR ADDITIONAL CHARGES. IN THIS INSTANCE, THEREFORE, WE WILL CONSIDER YOUR REQUEST FOR REVIEW AS ONE MADE ON BEHALF OF HAYES FREIGHT LINES AND OTHER CARRIERS WHICH ARE PARTIES IN INTEREST.

YOU TAKE ISSUE WITH THE CONCLUSION REACHED IN OUR SETTLEMENT CERTIFICATE, AND YOU CONTEND THAT THE OMISSION OF ANNOTATIONS WAS CORRECTED BY THE FACT THAT ONE LIEUTENANT ALLEN C. LIVINGSTON OF THE UMATILLA ORDNANCE DEPOT ADDRESSED A LETTER, DATED NOVEMBER 24, 1959, TO THE ATTENTION OF THE TRANSPORTATION OFFICER AT FORT KNOX WHEREIN IT WAS NOTED THAT THE OMISSION OF THE REQUIRED ANNOTATION WAS INADVERTENT AND A REQUEST MADE THAT THE BILLS OF LADING IN ISSUE BE CORRECTED UNDER THE AUTHORITY OF AR 55-355, PARAGRAPH 214085 (E) (2). APPARENTLY WRITING PURSUANT TO THAT PROVISION OF PARAGRAPH 214085 (E) (2), WHICH REQUIRES THE CONSIGNEE TO NOTIFY THE CARRIER'S LOCAL AGENT OF A BILL OF LADING CORRECTION AFFECTING THE FREIGHT CHARGES, COLONEL MAX OBOLER, TRANSPORTATION OFFICER AT FORT KNOX, ADDRESSED A LETTER DATED DECEMBER 24, 1959, TO HAYES FREIGHT LINES, REQUESTING A CORRECTION OF THE BILLS OF LADING WHICH BY THEN HAD BEEN SURRENDERED TO THE CARRIER.

SINCE THERE ARE NO ESTABLISHED ONE-FACTOR THROUGH RATES BETWEEN ORIGIN AND DESTINATION OVER THE BILL OF LADING ROUTE, THE APPLICABLE RATE IS DERIVED FROM TWO TARIFFS. THE FIRST FACTOR OF THE COMBINATION RATE APPLIES FROM ORDNANCE, OREGON, TO MEMPHIS, TENNESSEE, AND THE SPECIAL MILITARY SERVICE REQUIREMENT IS CONTAINED IN ITEM N. 935 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU'S TRANSCONTINENTAL TERRITORIAL DIRECTORY NO. 20-B, MF- I.C.C. NO. 101. ITEM NO. 935 PROVIDED AS FOLLOWS:

"BILLS OF LADING ISSUED FOR "SPECIAL MILITARY SERVICE" WILL BEAR THE FOLLOWING NOTATIONS: SPECIAL MILITARY SERVICE WAS REQUESTED AS FOLLOWS: TIME AND DATE -----------------------------------------------

SIGNATURE OF SHIPPING OFFICER SPECIAL MILITARY SERVICE WAS RECEIVED TIME AND DATE RECEIVED -------------------------- ---------

SIGNATURE OF RECEIVING OFFICER"

THE SECOND FACTOR OF THE COMBINATION RATE, APPLYING FROM MEMPHIS, TENNESSEE, TO FORT KNOX, KENTUCKY, IS PUBLISHED IN SOUTHERN MOTOR CARRIERS CONFERENCE TARIFF NO. 50, MF-I.C.C. NO. 611. ITEM NO. 1020-P OF THAT TARIFF PROVIDES, IN PERTINENT PART, THE FOLLOWING:

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

"EXCLUSIVE USE OF VEHICLE ORDERED BY SHIPPER"

EACH OF THE FOUR BILLS OF LADING HERE INVOLVED BEAR SIMILAR ANNOTATIONS, NAMELY:

"DO NOT BREAK SEALS EXCEPT IN EMERGENCY OR UPON PRIOR AUTHY. CONSIGNOR, CONSIGNEE, REGIONAL DIRECTOR OF EXECUTIVE DIRECTOR, MTMA. BROKEN APPLY CARRIER'S SEALS IMMEDIATELY AND NOTIFY SHIPPER AND CONSIGNEE.'

OBVIOUSLY, EACH OF THE TWO TARIFFS CITED CONTAINED SPECIFIC REQUIREMENTS AS TO ANNOTATIONS ON THE BILL OF LADING TO SHOW THAT THE SHIPPER REQUESTED SPECIAL MILITARY OR EXCLUSIVE-USE SERVICE, AND THE ANNOTATION AS TO THE SEALS APPLIED BY THE SHIPPER DID NOT SATISFY THE SPECIFIC TARIFF REQUIREMENTS. IN SUCH CIRCUMSTANCES THE HIGHER CHARGES BASED ON PREMIUM SERVICE ARE NOT AUTHORIZED FOR PAYMENT.

OUR SETTLEMENT CERTIFICATE OF DECEMBER 14, 1960, REFERRED TO THE CASE OF GUS BLASS COMPANY V. POWELL BROTHERS TRUCK LINES, 53 M.C.C. 603, AS THE AUTHORITY UPON WHICH DISALLOWANCE WAS BASED. IN THAT CASE THE INTERSTATE COMMERCE COMMISSION CONSIDERED A MOTOR CARRIER'S CONTENTION THAT EXCLUSIVE USE CHARGES WERE APPLICABLE ON THE SHIPMENT IN ISSUE ALTHOUGH AN EXCLUSIVE USE ANNOTATION DID NOT APPEAR ON EITHER THE BILL OF LADING OR THE FREIGHT BILL AS REQUIRED BY TARIFF. IN ADOPTING THE CONSIGNEE'S POINT OF VIEW, THE COMMISSION SAID, AT PAGE 605:

"IT APPEARS THAT DEFENDANT'S (CARRIER-S) POSITION IS 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 MERELY A MATTER OF FORM, THE ABSENCE OF WHICH DOES NOT AFFECT THE REMAINING PROVISIONS OF THE RULE. WE THINK NOT. IT IS WELL SETTLED THAT A RULE CONTAINED IN A TARIFF IS PART OF THE TARIFF, AND CANNOT BE WAIVED. * * *"

THE REASONING EMPLOYED BY THE COMMISSION IN GUS BLASS CASE WAS BASED IN PART ON THE DECISION OF THE SUPREME COURT IN THE CASE OF DAVIS V. HENDERSON, 266 U.S. 92. THERE A SHIPPER OF CATTLE SUED THE CARRIER FOR DAMAGES DUE TO THE FAILURE OF THE LATTER TO FURNISH A CAR WITHIN A REASONABLE TIME AFTER IT WAS REQUESTED. SINCE THE PLAINTIFF HAD GIVEN NOTICE OF A REQUEST ORALLY, RATHER THAN IN WRITING, AS REQUIRED BY THE PERTINENT TARIFF, TO THE STATION AGENT, THE CARRIER DEFENDED ON THE GROUND THAT THE SHIPPER HAD NOT COMPLIED WITH THE TARIFF RULE REQUIRING ORDERS FOR CARS TO BE IN WRITING. AT PAGE 93 THE COURT SAID,"THERE IS NO CLAIM THAT THE RULE REQUIRING WRITTEN NOTICE WAS VOID. THE CONTENTION IS THAT THE RULE WAS WAIVED. IT COULD NOT BE. THE TRANSPORTATION SERVICE TO BE PERFORMED WAS THAT OF A COMMON CARRIER UNDER PUBLISHED TARIFFS. THE RULE WAS A PART OF THE TARIFF.'

SINCE THE REQUIREMENT THAT AN ANNOTATION EVIDENCING A REQUEST FOR SPECIAL MILITARY OR EXCLUSIVE USE SERVICE BE PLACED ON THE BILL OF LADING IS THE TARIFF REQUIREMENT, ANCILLARY OR COLLATERAL DOCUMENTS, SUCH AS THE LETTERS WRITTEN BY LIEUTENANT LIVINGSTON AND COLONEL OBOLER SOME MONTHS AFTER THE TRANSPORTATION WAS PERFORMED, CANNOT BE REGARDED AS EVIDENCE OF A REQUEST IN DEROGATION OF THE TARIFF RULE OR AS A CONTRACT OR AGREEMENT STANDING IN SUBSTITUTION OF THE TARIFF ITSELF. NO PART OF ANY OF THE ESSENTIAL LANGUAGE EVIDENCING A DESIRE OR REQUEST BY THE SHIPPER FOR SPECIAL MILITARY OR EXCLUSIVE USE SERVICE APPEARS ON THE PERTINENT BILLS OF LADING AND FOR ALL THAT APPEARS THESE SHIPMENTS OF AMMUNITION FOR CANNON WERE TRUCKLOAD SHIPMENTS IN EXCESS OF THE PRESCRIBED TRUCKLOAD MINIMUM WEIGHTS, WERE ORDINARY TRUCKLOAD SERVICE UNDER SEAL, AND WERE SUBJECT TO APPLICABLE TRUCKLOAD RATES.

RULES, REGULATIONS AND CONDITIONS GOVERNING THE 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. SEE DAVIS V. HENDERSON, SUPRA; WESTERN UNION TELEGRAPH COMPANY V. ESTEVE BROTHERS AND COMPANY, 256 U.S. 566, EMPIRE BOX CORPORATION OF STROUDSBURG V. DELAWARE, L. AND W. R.CO., 171 F.2D 389. NEITHER CARRIERS, SHIPPERS, NOR ARMY OFFICERS, WHO PURPORT TO ACT UNDER THE AUTHORITY OF ARMY REGULATIONS, CAN MODIFY, AMEND, OR WAIVE THE CONDITIONS OF A RULE IN A TARIFF, UPON WHICH THE GOVERNMENT'S LIABILITY FOR EXTRAORDINARY CHARGES IS PREDICATED. IT MAY BE NOTED, INCIDENTALLY, THAT THAT THE PURPOSE OF SPECIAL MILITARY SERVICE, AS EXPLAINED IN ITEM NO. 935 OF TARIFF NO. 20-B, IS TO PROVIDE A "MORE EXPEDITIOUS HANDLING" THAN AVAILABLE TO THE PUBLIC GENERALLY; YET, THE BILL OF LADING RECORD REFLECTS THAT THE SHIPMENTS WERE IN TRANSIT FROM OREGON TO KENTUCKY FOR 12 DAYS OR MORE.

THE PLACEMENT OF THE REQUIRED ANNOTATION ON THE BILLS OF LADING WAS A CONDITION PRECEDENT UPON WHICH THE CARRIER'S OBLIGATION TO PERFORM THE REQUESTED SERVICE AND RIGHT TO COLLECT THE PREMIUM CHARGES DEPENDED. SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., NO. MC-C- 1410, 9 FEDERAL CARRIERS CASES 710; DEEP FREEZE DIVISION MOTOR PRODUCTS CORP. V. C. A. CONKLIN TRUCK LINES ET AL., MC-C-1712, 11 FEDERAL CARRIER CASES 248. IN THE ABSENCE, AS HERE, OF THE REQUISITE ANNOTATION ON EACH BILL OF LADING IN SUBSTANTIALLY THE FORM PRESCRIBED BY THE APPLICABLE TARIFFS, OUR SETTLEMENT OF DECEMBER 15, 1960,DISALLOWING THE CLAIM FOR SPECIAL MILITARY AND EXCLUSIVE USE SERVICE, IS SUSTAINED. INSOFAR AS THE ALLOWANCE OF ADDITIONAL CHARGES TO HAYES FREIGHT LINES ON CERTAIN OTHER SIMILAR SHIPMENTS ALLEGEDLY AFFORDED SPECIAL MILITARY AND EXCLUSIVE USE SERVICE IS CONCERNED, THE MATTER WILL BE FURTHER EXAMINED TO DETERMINE WHETHER THE ALLOWABLE CHARGES SHOULD BE LIMITED TO THE BASIS CONCLUDED TO BE PROPER IN THIS INSTANCE.