B-150167, JUL. 26, 1963

B-150167, JUL. 26, 1963

TO BAGGETT TRANSPORTATION COMPANY:

WE AGAIN REFER TO YOUR LETTER OF JANUARY 21, 1963, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE DATED JANUARY 4, 1963, OUR CLAIM FILE NO. TK-749596. THE SETTLEMENT DISALLOWED YOUR CLAIM FOR $123.56, THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF A SHIPMENT CONTAINING AN OVERHAULED PRATT AND WHITNEY TWIN WASP ENGINE, MODEL 0200-R2000-13, WEIGHING 4,246 POUNDS, FROM CANADIAN PRATT AND WHITNEY A/C CO., LTD., LONGUEUIL, QUEBEC, TO THE ACCOUNTABLE PROPERTY OFFICER, TRANSPORTATION AIRCRAFT TEST AND SUPPORT ACTIVITY, U.S. ARMY, FORT RUCKER, ALABAMA, DURING MAY 1961.

THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER, MARCELL'S MOTOR EXPRESS, INC., ON A COMMERCIAL BILL OF LADING CONTAINING IN THE "ROUTING" SPACE THE NOTATION "MARCELL'S COLLECT BILLING TO BE CONVERTED TO GOVERNMENT BILL OF LADING AT DESTINATION.' GOVERNMENT BILL OF LADING NO. B-0943615, PREPARED ON JUNE 21, 1961, APPARENTLY AT FORT RUCKER, SHOWS THAT ON JUNE 2, 1961, THE SHIPMENT WAS DELIVERED AT DESTINATION BY BAGGETT TRANSPORTATION CO. AND CONTAINS THIS NOTATION: "CONVERTED AT DESTINATION FROM ONE COMMERCIAL BILL OF LADING ATTACHED.'

THE NOTATIONS WERE PLACED ON THE TWO BILLS OF LADING IN ACCORDANCE WITH REGULATIONS ESTABLISHING PROCEDURES FOR CONVERTING COMMERCIAL BILLS OF LADING TO GOVERNMENT BILLS OF LADING. THESE REGULATIONS ARE SET OUT IN PART 52, CHAPTER 1, TITLE 4, OF THE CODE OF FEDERAL REGULATIONS, AND, WHERE PERTINENT, READ AS FOLLOWS:

"52.19 PRELIMINARY REQUIREMENTS FOR CONVERSION.

"EVERY PRECAUTION SHOULD BE TAKEN TO GUARD AGAINST THE SHIPMENT OF GOVERNMENT PROPERTY ON A COMMERCIAL BILL OF LADING OR COMMERCIAL EXPRESS RECEIPT, SINCE PAYMENT TO THE CARRIER OF THE TRANSPORTATION CHARGES WILL NOT BE MADE BY THE GOVERNMENT ON SUCH COMMERCIAL DOCUMENT ALONE. IF, HOWEVER, GOVERNMENT PROPERTY UNAVOIDABLY MOVES ON A COMMERCIAL BILL OF LADING OR COMMERCIAL EXPRESS RECEIPT, THE WORDS "TO BE CONVERTED TO A GOVERNMENT BILL OF LADING" MUST BE PLACED ON THE ORIGINAL COMMERCIAL DOCUMENT AND ON ALL COPIES THEREOF IN A CONSPICUOUS MANNER. * * *

"52.20 PROCEDURE.

"/A) * * * THE COMMERCIAL DOCUMENT ON WHICH THE PROPERTY WAS SHIPPED SHOULD BE SECURELY ATTACHED TO THE GOVERNMENT BILL OF LADING AND BOTH THE GOVERNMENT BILL OF LADING AND THE COMMERCIAL DOCUMENT SHOULD BE CROSS- REFERENCED AND FORWARDED TO THE CONSIGNEE WITHOUT DELAY FOR EXECUTION OF CONSIGNEE'S CERTIFICATE OF DELIVERY ON THE GOVERNMENT BILL OF LADING DELIVERY OF THE SHIPMENT.'

THE ABOVE PROVISIONS ARE ALSO CONTAINED IN SECTION 3050, TITLE V, GENERAL ACCOUNTING OFFICE MANUAL FOR THE GUIDANCE OF FEDERAL AGENCIES, AND IN SECTION IX, CHAPTER 214, OF MILITARY TRAFFIC MANAGEMENT REGULATION, AR-55- 355. THESE REGULATIONS, WHICH REFLECT THAT THE TERMS AND CONDITIONS OF THE GOVERNMENT BILL OF LADING APPLY IN THE CIRCUMSTANCES, HAVE THE FORCE AND EFFECT OF LAW. PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, 542 (1958).

THE COMMODITY SHIPPED, A PRATT AND WHITNEY TWIN WASP ENGINE, IS RATABLE AS AN INTERNAL COMBUSTION ENGINE, NOI. RATINGS IN THE APPLICABLE NATIONAL MOTOR FREIGHT CLASSIFICATION (NO. A-5) ON INTERNAL COMBUSTION ENGINES ARE MADE DEPENDENT UPON VALUE. THE HIGHEST LESS TRUCKLOAD RATING IS CLASS 150 AND IS APPLICABLE WHEN A PROPERTY VALUE IS NOT DECLARED OR RELEASED. THIS, APPARENTLY, IS THE RATING APPLIED BY YOU ON THIS SHIPMENT IN BILLING AND COLLECTING FREIGHT CHARGES OF $440.31. THE LOWEST LESS TRUCKLOAD RATING IS CLASS 85 AND IS APPLICABLE WHEN THE ARTICLE IS RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND. WE USED THIS RATING IN OUR AUDIT ACTION AND IN THE DISALLOWANCE OF YOUR CLAIM BECAUSE CONDITION 5 ON THE BACK OF THE GOVERNMENT BILL OF LADING STATES:

"THIS SHIPMENT IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INDICATED ON THE FACE HEREOF.' THE DIFFERENCE ON THIS SHIPMENT BETWEEN FREIGHT CHARGES COMPUTED AT THE HIGHEST RATING AND THOSE COMPUTED AT THE LOWEST RATING IS $123.56, THE AMOUNT OF YOUR CLAIM.

YOU CONTEND THAT CONDITION 5 ON THE BACK OF THE GOVERNMENT BILL OF LADING IS NOT BINDING ON THE CARRIER BECAUSE THE SHIPMENT MOVED FROM ORIGIN TO DESTINATION ON A COMMERCIAL BILL OF LADING WHICH DID NOT BEAR A RELEASED VALUE NOTATION. YOU FURTHER CONTEND THAT THE COMMERCIAL BILL OF LADING IS THE CONTROLLING CONTRACT; THAT THE NOTATION ON THE COMMERCIAL BILL OF LADING, WHICH IS REQUIRED BY GOVERNMENTAL REGULATIONS, IS A NULLITY, AND THAT TO SUSTAIN THE GOVERNMENT'S CLAIM WOULD AMOUNT TO A RETROACTIVE DECLARATION OF VALUE WHICH WOULD CONTRAVENE SECTION 6 OF THE INTERSTATE COMMERCE ACT.

IT MAY BE NOTED THAT BY REASON OF SECTIONS 22 AND 217 (B), 49 U.S.C. 22 AND 317 (B), CARRIERS ARE AUTHORIZED AS TO SHIPMENTS FOR THE UNITED STATES TO AGREE TO TERMS AND CONDITIONS DIFFERING FROM THOSE CONTAINED IN THEIR PUBLISHED AND FILED TARIFFS. THE SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER ON A COMMERCIAL BILL OF LADING BECAUSE THE SHIPPER APPARENTLY DID NOT HAVE AVAILABLE ANY GOVERNMENT BILLS OF LADING. BY THE STATEMENT SIGNIFYING THAT THE COMMERCIAL BILL OF LADING WAS TO BE CONVERTED TO A GOVERNMENT BILL OF LADING AT DESTINATION, THE ORIGIN CARRIER WAS PUT ON NOTICE OF THE FACT THAT THE TRANSPORTATION CONTRACT WAS SUBJECT TO THE PROVISIONS OF THE GOVERNMENT BILL OF LADING LATER TO BE ISSUED. IN EFFECT THE CARRIER AGREED TO THE TEMPORARY AND CONDITIONAL USE OF THE COMMERCIAL BILL OF LADING (WHICH SERVED AS A RECEIPT FOR THE ENGINE) IN PLACE OF THE GOVERNMENT BILL OF LADING, TO BE FURNISHED AS DESTINATION. THE STATEMENT, FAR FROM BEING A NULLITY, INDICATES THAT AT THE TIME OF SHIPMENT BOTH PARTIES TO THE COMMERCIAL BILL OF LADING CONTRACTED WITH REFERENCE TO THE GOVERNMENT BILL OF LADING AND WITHIN THE FRAMEWORK OF REGULATIONS SPECIFICALLY DESIGNED FOR USE WHEN GOVERNMENT BILLS OF LADING ARE UNAVAILABLE; IT INDICATES FURTHER THAT BOTH PARTIES WERE AWARE THAT THE SHIPMENT WAS MOVING FOR THE ACCOUNT OF THE GOVERNMENT AND THAT IT WAS MOVING UNDER THE GOVERNMENT BILL OF LADING TERMS AND CONDITIONS, ONE OF WHICH, CONDITION 5, APPRISED THE CARRIER THAT, UNLESS OTHERWISE INDICATED ON THE FACE OF THE BILL OF LADING, THE SHIPMENT WAS MADE AT THE VALUATION UNDER WHICH THE LOWEST RATE WAS AVAILABLE.

THE SETTLEMENT CERTIFICATE WHICH DISALLOWED YOUR CLAIM IS NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE, AND, ACCORDINGLY, IT IS SUSTAINED.