B-145480, JAN. 18, 1962

TO NAVAJO FREIGHT LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1961, WHICH, IN EFFECT, IS A REQUEST FOR REVIEW OF THE ACTION TAKEN ON YOUR CLAIM NO. 3376'S FOR ADDITIONAL FREIGHT CHARGES ON SHIPMENTS OF TWO TRAILERS TRANSPORTED FROM OAKLAND, CALIFORNIA, TO LOS ALAMOS, NEW MEXICO, UNDER GOVERNMENT BILLS OF LADING WY-1571926 AND WY-1571927, IN DECEMBER 1952.

FOR THE SERVICES PERFORMED, YOU ORIGINALLY CLAIMED AND WERE PAID ON YOUR BILL NO. 28A-2-25 THE AMOUNT OF $904.50 ON EACH SHIPMENT, BASED ON YOUR SECTION 22 TENDER NO. 228, DATED NOVEMBER 17, 1952. IN OUR ORIGINAL AUDIT OF THE PAYMENT VOUCHER IT WAS DETERMINED THAT OVERCHARGES OF $220.71 AND $224.26 HAD BEEN MADE ON THE SHIPMENTS COVERED BY BILLS OF LADING WY- 1571926 AND WY-1571927, RESPECTIVELY, AND THE TOTAL OF SUCH OVERCHARGES, $444.97, WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU. BY YOUR SUPPLEMENTAL BILLS NOS. 28-A-25A AND 28-A 25B, CLAIMING THE AMOUNTS OF $224.26 AND $220.71, YOU SOUGHT TO RECOVER THE AMOUNTS SO DEDUCTED. THE ACCOUNT WAS THEN RE-AUDITED AND IT WAS DETERMINED THAT YOUR SUPPLEMENTAL BILLS SHOULD BE DISALLOWED, AND THAT ADDITIONAL OVERCHARGES OF $173.05 AND $195.45 HAD BEEN MADE ON THE SHIPMENTS COVERED BY BILLS OF LADING WY- 1571926 AND WY-1571927, RESPECTIVELY. THUS, THE CHARGES FOR THESE TWO MOVEMENTS WERE FOUND TO BE $510.74 FOR THE SHIPMENT UNDER BILL OF LADING WY-1571926, INVOLVING A TRUCK TRAILER WEIGHING 21,170 POUNDS, AND $484.79 FOR SHIPMENT UNDER BILL OF LADING WY-1571927, INVOLVING A TRUCK TRAILER WEIGHING 21,060 POUNDS.

THE BILLS OF LADING EACH BEAR A NOTATION REFERRING TO NAVAJO FREIGHT LINES SECTION 22 TENDER 228, WHICH APPLIES TO "FREIGHT, ALL KINDS, EXCEPT HIGH EXPLOSIVES AND EXPLOSIVE AMMUNITION" BETWEEN THE POINTS INVOLVED IN THIS CASE. THE EXCLUSIVE USE PROVISION OF THE CITED TENDER UNDER WHICH YOU ORIGINALLY CLAIMED PROVIDES THAT "TRAILERS PROVIDED ARE FOR EXCLUSIVE USE OF SHIPPER WHO MUST ENDORSE ON BILL OF LADING "EXCLUSIVE USE OF VEHICLE REQUESTED. SHIPPER'S LOAD AND COUNT.'" THE BILLS OF LADING DO NOT BEAR SUCH AN ENDORSEMENT AND IT HAS NOW BEEN ESTABLISHED THAT THE VEHICLES INVOLVED WERE TUBE TYPE TRAILERS USED FOR TRANSPORTING HYDROGEN GAS, WHICH WERE TOWED ON THEIR OWN WHEELS IN TOW-AWAY SERVICE. SINCE TOW- AWAY SERVICE WAS UTILIZED, YOUR SECTION 22 TENDER 228, WHICH CLEARLY CONTEMPLATES HAVING THE SHIPMENTS LOADED ON YOUR OWN EQUIPMENT, WAS NOT FOR APPLICATION IN DETERMINING FREIGHT CHARGES. THE UNITED STATES ATOMIC ENERGY COMMISSION, ALBUQUERQUE OPERATIONS OFFICE, ALBUQUERQUE, NEW MEXICO, HAS REPORTED THAT THESE TRAILERS WERE TRANSPORTED EMPTY AND THAT SINCE THEY CONSISTED OF TUBES FOR THE TRANSPORTATION OF HYDROGEN GAS, THE MANIFOLDING SYSTEM USED TO LOAD AND DISCHARGE THIS GAS IS KEPT LOCKED AT ALL TIMES TO PREVENT ACCIDENTAL CONTAMINATION.

PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 316 (B), REQUIRES MOTOR COMMON CARRIERS TO ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE RATES, CHARGES AND PRACTICES RELATING THERETO. GOVERNMENT OFFICERS ARE WITHOUT AUTHORITY TO CONTRACT FOR TRANSPORTATION SERVICES AT CHARGES HIGHER THAN THOSE AVAILABLE TO THE PUBLIC UNDER PUBLISHED AND FILED TARIFFS FOR LIKE SERVICES UNDER LIKE CONDITIONS. SEE 19 COMP. DEC. 208, 211, WHERE IT IS STATED, QUOTING FROM THE SYLLABUS, THAT "THE GOVERNMENT BEING ENTITLED LIKE ANY OTHER SHIPPER TO THE REGULAR TARIFF RATE * * * NO CONTRACT IN EXCESS OF SAID NET RATE IS VALID, FOR IT WOULD BE, AS TO SAID EXCESS, A GIFT OF PUBLIC MONEY WITH NO CONSIDERATION THEREFOR, AND NO OFFICER HAS THE RIGHT TO GIVE AWAY PUBLIC REVENUES.' ALSO, SEE SOUTHERN PACIFIC CO. V. UNITED STATES, 60 CT.CL. 662, AFFIRMED 272 U.S. 445; MISSOURI PACIFIC RAILROAD CO. V. UNITED STATES, 71 CT.CL. 650; AND UNITED STATES LINES OPERATIONS, INC. V. UNITED STATES, 99 CT.CL. 744.

YOU SEEM TO FEEL THAT YOU WERE MISLED BY THE GOVERNMENT SHIPPING OFFICER INTO ACCEPTING A SHIPMENT ON A BASIS NOT MADE CLEAR BY THE BILL OF LADING, AND THAT IF YOU HAD REALIZED THAT TOW-AWAY SERVICE WAS TO BE PERFORMED YOU WOULD NOT HAVE ACCEPTED THE SHIPMENT, SINCE YOU HELD NO TOW-AWAY OPERATING RIGHTS. IT APPEARS FROM THE RECORD THAT THE SHIPPER CONTEMPLATED HAVING THE SHIPMENTS LOADED ON YOUR EQUIPMENT AND TRANSPORTED UNDER THE PROVISIONS OF YOUR TENDER 228. HOWEVER, THE FACT REMAINS THAT TOW-AWAY SERVICE WAS PERFORMED.

SO FAR AS THE PREPARATION OF THE GOVERNMENT BILLS OF LADING IS CONCERNED, IT IS WIDELY ACCEPTED AND A LONG STANDING PRACTICE OF MANY 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, AND EMERGENCY FREIGHT CHARGES, 1935, 208 I.C.C. 4, 51. THIS DOES NOT, HOWEVER, RELIEVE THE CARRIER OF THE DUTY IMPOSED 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. EVEN WHERE THE BILL OF LADING IS PREPARED BY THE SHIPPER, THE MOTOR CARRIER HAS AN OBLIGATION TO REFRAIN FROM EXECUTING THE DOCUMENT IF IT CANNOT BE LAWFULLY COMPLIED WITH, OR IF IT CONTAINS CONFLICTING PROVISIONS. SEE EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY CO., 234 I.C.C. 441, 442, AND SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY RAILROAD CO., 274 I.C.C. 245, 247. SINCE YOU NOW ASSERT THAT YOU DID NOT HAVE TWO-WAY OPERATING RIGHTS, AND YOU DID NOT LOAD THE TRAILERS ON YOUR OWN EQUIPMENT, YOU SHOULD HAVE REFUSED THE SHIPMENTS.

IN CASES OF THIS NATURE, IT IS THE ESTABLISHED POLICY OF OUR OFFICE TO USE THE RATES OF OTHER DULY AUTHORIZED CARRIERS FOR THE SAME OR SIMILAR SERVICE--- THE USUAL OR GOING RATE--- AS THE MEASURE OF A PROPER CHARGE. IN THIS CONNECTION SEE CONRAD FAFARD, INC. V. CANADIAN NATIONAL RAILWAYS, 302 I.C.C. 163; MAPLE ISLAND FARMS, INC. V. CHICAGO, B. AND Q. R., 280 I.C.C. 353; CHARLES A. GREEN AND SONS, INC. V. PENNSYLVANIA R.CO., ID. 357; LYNCHBURG FOUNDRY CO. V. ATCHISON, T. AND S.F. RY., 279 I.C.C. 171, 175; AND O. C. FIELD GASOLINE CORP. V. NEVADA N. RY., 258 I.C.C. 350, IN WHICH THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT A COMPARISON WITH PRESCRIBED AND PREVAILING RATES ON LIKE TRAFFIC IN THE SAME GENERAL TERRITORY FROM AND TO POINTS SIMILARLY SITUATED IS THE BEST TEST OF THE PROPRIETY OF A RATE. ALSO IN R. E. SHUTT V. UNITED STATES, 218 F.2D 10, CERT. DENIED 350 U.S. 822, THE UNITED STATES COURT OF APPEALS HELD THAT BY EXECUTION OF THE PAYEE'S CERTIFICATE ON THE FACE OF THE PUBLIC VOUCHER FORM WHICH PROVIDES:

"I CERTIFY THAT THE ACCOUNT STATED HEREON, AS EVIDENCED BY THE ATTACHED SUBVOUCHERS, IS CORRECT AND JUST; THAT THE SERVICES HAVE BEEN RENDERED AS INDICATED; THAT PAYMENT HAS NOT BEEN RECEIVED; AND THAT THE RATES CHARGED ARE NOT IN EXCESS OF THE LOWEST NET RATES AVAILABLE FOR THE GOVERNMENT, BASED ON TARIFFS EFFECTIVE AT THE DATE OF SERVICE.'

THE CARRIER, WHO WAS NOT A PARTY TO ANY EFFECTIVE RATES OF ITS OWN, HAD ENTERED INTO AN AGREEMENT TO PROTECT THE LOWEST NET RATE PUBLISHED FOR THE SERVICE BY OTHER CARRIERS. SUCH A CERTIFICATE WAS EXECUTED BY YOUR REPRESENTATIVE ON THE VOUCHER ON WHICH THE BILLS OF LADING IN QUESTION WERE ORIGINALLY PAID.

IN YOUR LETTER OF JUNE 14, 1961, YOU SEEM TO CONCEDE THAT YOUR QUOTATIONS HAVE NO APPLICATION TO THESE MOVEMENTS AND EXPRESS THE BELIEF THAT YOU ARE ENTITLED TO A NEGOTIATED AMOUNT FOR THE SERVICES PERFORMED, SUGGESTING THAT A CHARGE OF $700 FOR EACH TRAILER WOULD BE AN EQUITABLE SETTLEMENT.

THE RATES EMPLOYED BY OUR TRANSPORTATION DIVISION IN COMPUTING THE OVERCHARGES ON THESE SHIPMENTS WERE THOSE NAMED IN NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION, AGENT, TARIFF 83-B, MF-I.C.C. NO. 224 FOR ACCOUNT OF DEALER'S TRANSPORT CO. IN RE-EXAMINING THE MATTER IT APPEARS THAT YOU HAVE BEEN OVERPAID AN ADDITIONAL $25.94 ON THE SHIPMENT UNDER BILL OF LADING WY-1571926, SINCE YOU WERE CREDITED WITH AN ALLOWANCE FOR ARBITRARIES IN COMPUTING THE AMOUNT OF THE OVERCHARGE ON THAT SHIPMENT; WHEREAS, ITEM 120 OF THE CITED TARIFF PROVIDES THAT THE ARBITRARY STATE TOLLS AND FEES PROVIDED THEREIN WILL NOT APPLY ON ANY TRAFFIC TRANSPORTED ON GOVERNMENT BILLS OF LADING.

SINCE THERE WAS A DULY FILED TARIFF CONTAINING RATES TO COVER THE TRANSPORTATION SERVICES ACTUALLY RENDERED IN CONNECTION WITH THESE SHIPMENTS AND YOU HAVE BEEN COMPENSATED IN EXCESS OF THOSE CHARGES, UNDER THE PRINCIPLE OF THE SHUTT CASE THERE IS NO BASIS FOR GIVING FAVORABLE CONSIDERATION TO YOUR PRESENT PROPOSAL TO ALLOW YOU AN ADDITIONAL AMOUNT FOR THE SERVICES RENDERED. ACCORDINGLY, THE ACTION TAKEN IN THIS MATTER MUST BE SUSTAINED. THE CITED OVERPAYMENT OF $25.94 SHOULD BE REFUNDED PROMPTLY.