B-146430, NOV. 17, 1961

B-146430, NOV. 17, 1961

TO WESTERN TRUCK LINES, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1961, REQUESTING REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM (G-01503) FOR $630.55 ADDITIONAL TO $1,619.45 PREVIOUSLY ALLOWED YOU FOR TRANSPORTING FOR THE ATOMIC ENERGY COMMISSION A SHIPMENT OF "FREIGHT ALL KINDS," WEIGHING 64,778 POUNDS. THE SHIPMENT WAS LOADED IN THREE TRUCKS AND TRANSPORTED FROM ALBUQUERQUE, NEW MEXICO, TO OAKLAND, CALIFORNIA, ON BILL OF LADING NO. AT 132194, DATED JANUARY 30, 1956. IN YOUR SUBMISSION, YOU URGE THAT THE RATE NAMED IN YOUR TENDER NO. 105 IS NOT APPLICABLE ON THIS SHIPMENT SINCE THERE IS NO SPECIFIC PROVISION THEREIN FOR EXCLUSIVE USE OF THE CONVEYING VEHICLES. FURTHER, THAT THE CHARGES ON THE SHIPMENT ARE FOR COMPUTATION ON THE BASIS PROVIDED IN ITEM 1380 OF INTERSTATE FREIGHT CARRIERS CONFERENCE TARIFF NUMBER 1 D, MF-I.C.C. 3, AND YOU REQUEST THAT YOU BE ALLOWED $765.55, INSTEAD OF $630.55 PREVIOUSLY CLAIMED.

THE CONTRACT FOR THE TRANSPORTATION OF THIS SHIPMENT IS CONTAINED IN GOVERNMENT BILL OF LADING NO. AT 132194. THE FACE OF THIS BILL OF LADING CONTAINS THE FOLLOWING ANNOTATIONS: "AEC SECTION 22 QUOTATION," "EXCLUSIVE USE OF VEHICLE," " MUST BE DELIVERED 3 FEB 1956 AT 8:00 A.M., " AND ,MOVING UNDER US AEC ESCORTS.' A REPORT DATED APRIL 4, 1958, FROM THE TRAFFIC SUPERVISOR OF THE SANDIA CORPORATION, THE SHIPPER, TO OUR OFFICE CONCERNING THE SHIPMENT ON THIS BILL OF LADING STATES, IN PART, AS FOLLOWS:

"THIS PARTICULAR GOVERNMENT BILL OF LADING COVERED THREE VEHICLES WHICH WERE LOADED TO FULL CAPACITY WITH CLASSIFIED MATERIAL, EXCLUSIVE USE OF EQUIPMENT AND MOVING UNDER U.S. A.E.C. COURIERS, AND ANY OVERFLOW RULE WILL NOT APPLY.'

THE QUOTED NOTATIONS ON THE BILL OF LADING AND THIS REPORT APPEAR TO SHOW THAT THE UNDERSTANDING OF THE ATOMIC ENERGY COMMISSION, AT THE TIME THIS SHIPMENT WAS MADE, WAS THAT THE RATE QUOTED IN AN "AEC SECTION 22 QUOTATION" WAS TO BE APPLIED ON THIS VOLUME SHIPMENT OF 64,778 POUNDS.

THE DUTY OF ISSUING APPROPRIATE BILLS OF LADING RESTS UPON THE CARRIER, NOT THE SHIPPER. 49 U.S.C. 22/11); 49 U.S.C. 319. THE FACT THAT IT IS NOT UNCOMMON FOR SHIPPERS TO PREPARE BILLS OF LADING FOR EXECUTION BY THE CARRIERS' AGENTS DOES NOT RELIEVE THE CARRIER OF THAT DUTY. FURTHER, THE OBLIGATION RESTS UPON THE CARRIERS' AGENTS TO REFRAIN FROM EXECUTING BILLS OF LADING WHICH CONTAIN CONFLICTING PROVISIONS. SEE SOUTHGATE BROKERAGE COMPANY, INC. V. LEHIGH VALLEY RAILROAD COMPANY, 274 I.C.C. 245-247; EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY, 234 I.C.C. 441-442; PARKERSBURG RIG AND REEL CO. V. BALTIMORE AND OHIO RAILROAD CO., 234 I.C.C. 105-110; AND SOUTHEAST SHIPPERS ASSO. V. ASSOCIATED TRANSPORT, INC., 61 M.C.C. 645-651/652. THE INSERTION OF REFERENCE TO THE AEC SECTION 22 QUOTATION ON THE BILL OF LADING BY THE SHIPPER SHOULD HAVE PLACED THE ORIGINATING CARRIER'S AGENT ON NOTICE THAT THE SHIPPER EXPECTED THE RATE NAMED IN A SECTION 22 QUOTATION, PRESUMABLY TENDER NO. 105, TO BE APPLIED ON THE SHIPMENT. IF THE REFERENCE TO THE QUOTATION THUS INSERTED ON THE BILL OF LADING CREATED A CONFLICT WITH THE OTHER PROVISIONS INSERTED THEREON, IT WAS THE DUTY OF THE INITIAL CARRIER'S AGENT TO OBTAIN FULL AND DEFINITE INSTRUCTIONS FROM THE SHIPPER. THE GOVERNMENT CANNOT BE CHARGED WITH THE NEGLECT OF THE DUTY OF THE CARRIER'S AGENT. WASHINGTON BUILDING LIME COMPANY V. BALTIMORE AND OHIO RAILROAD COMPANY, 173 I.C.C. 370; AND REA-PATTERSON MILLING COMPANY V. MISSOURI PACIFIC RAILROAD CO., 203 I.C.C. 425-426/427.

THE CARRIERS BY TENDER NO. 105, EFFECTIVE SEPTEMBER 1, 1955, OFFERED TO TRANSPORT FOR THE ATOMIC ENERGY COMMISSION SHIPMENTS DESCRIBED AS--- "FREIGHT ALL KINDS, EXCEPT HIGH EXPLOSIVES, AS PROVIDED IN ITEM 210, ROCKY MOUNTAIN TARIFF 43-D," FROM ALBUQUERQUE, NEW MEXICO, TO OAKLAND, CALIFORNIA, AT A RATE OF $2.50 AND A VOLUME MINIMUM WEIGHT OF 30,000 POUNDS. A VOLUME MINIMUM IS DISTINGUISHED FROM A TRUCKLOAD MINIMUM IN THAT THE VOLUME RATE APPLIES WHEN A SHIPPER TENDERS THE VOLUME MINIMUM WEIGHT OF A COMMODITY FOR TRANSPORTATION AT ONE TIME, EVEN THOUGH IT MAY EXCEED THE CARRYING CAPACITY OF THE LARGEST VEHICLE AVAILABLE AND MUST BE TRANSPORTED IN TWO OR MORE VEHICLES, WHEREAS A TRUCKLOAD MINIMUM IS GENERALLY UNDERSTOOD TO BE THE QUANTITY WHICH A CARRIER CAN TRANSPORT IN A SINGLE VEHICLE. SEE STOVES FROM ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641 643; AND GULF PORTS-ALABAMA, GEORGIA AND TENNESSEE--- COMMODITY RATES, 10 M.C.C. 106. THE SHIPMENT UNDER CONSIDERATION HERE WEIGHED 64,778, POUNDS, AND IT WAS LOADED IN THREE TRUCKS. UNDER THE ABOVE RULE OF THE INTERSTATE COMMERCE COMMISSION IT WAS A VOLUME SHIPMENT. IN TENDER NO. 105 (AN AEC SECTION 22 QUOTATION) THE CARRIERS OFFERED TO TRANSPORT VOLUME SHIPMENTS OF ,FREIGHT ALL KINDS," WEIGHING OVER 30,000 POUNDS, FROM ALBUQUERQUE, NEW MEXICO. TO OAKLAND, CALIFORNIA, AT A RATE OF $2.50 PER 100 POUNDS. THE CHARGE ALLOWED FOR THE TRANSPORTATION OF THIS SHIPMENT WAS COMPUTED ON THAT BASIS.