B-166151, JULY 2, 1969, 49 COMP. GEN. 6

TRANSPORTATION -- RATES -- MIXED SHIPMENTS -- "FREIGHT ALL KINDS" A CLAIM FOR REFUND OF TRANSPORTATION OVERCHARGES RECOVERED ON A SHIPMENT DESCRIBED ON THE BILL OF LADING AS "FREIGHT ALL KINDS" (FAK) WHICH IS BASED ON THE CONJECTURE THE SHIPMENT MAY HAVE CONTAINED CONTRABAND ARTICLES BECAUSE AN UNRELATED FAK SHIPMENT HAD CONTAINED CONTRABAND IS DENIED, THE CONJECTURE BEING INSUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS OF THE BILL OF LADING DESCRIPTION PREPARED PURSUANT TO THE APPLICABLE QUOTATION, AND THE CARRIER HAVING FAILED TO EXERCISE THE RIGHT PROVIDED BY THE TARIFF TO INSPECT THE SHIPMENT OR TO REQUIRE OTHER EVIDENCE OF THE NATURE OF THE LADING AT THE TIME OF SHIPMENT, THE UNITED STATES GENERAL ACCOUNTING OFFICE HAS NO LEGAL OBLIGATION TO INVESTIGATE THE CONTENTS OF A FAK SHIPMENT AND IS ENTITLED TO RELY ON THE BILL OF LADING DESCRIPTION FOR THE SETTLEMENT OF FREIGHT CHARGES. TRANSPORTATION -- BILLS OF LADING -- DESCRIPTION - "FREIGHT ALL KINDS" A MAJOR ADVANTAGE TO SHIPPER AND CARRIER ALIKE IN THE USE OF "FREIGHT ALL KINDS" (FAK) RATES IS THE ELIMINATION OF THE NECESSITY TO DESCRIBE AND RATE THE MANY VARIOUS ARTICLES COMPRISING MIXED-TRUCKLOAD SHIPMENTS, AN ADVANTAGE THAT WOULD BE NEGATED IF LONG AFTER A SHIPMENT HAD MOVED THE UNITED STATES GENERAL ACCOUNTING OFFICE WAS REQUIRED TO INVESTIGATE EVERY FAK LADING REACHED IN THE AUDIT OF GOVERNMENT TRANSPORTATION ACCOUNTS, BECAUSE THE ADMINISTRATIVE BURDEN WOULD BE OUT OF ALL PROPORTION TO ANY BENEFITS ACCRUING FROM THE USE OF FAK RATES AND, THEREFORE, QUESTIONS CONCERNING FAK LADINGS SHOULD BE RAISED BY A CARRIER'S AGENT AT THE TIME THE SHIPMENT IS ACCEPTED FOR TRANSPORTATION.

TO THE RED BALL MOTOR FREIGHT, INC., JULY 2, 1969:

WE REFER TO YOUR LETTER OF FEBRUARY 6, 1969, YOUR CLAIM 77534, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM (OUR TK-882261) FOR $112.95 BY SETTLEMENT CERTIFICATE DATED JANUARY 31, 1969.

THE AMOUNT IS CLAIMED AS ADDITIONAL TRANSPORTATION CHARGES IN CONNECTION WITH A SHIPMENT DESCRIBED ON THE BILL OF LADING AS 7 CRATES OF, "FREIGHT ALL KINDS," WEIGHING 12,550 POUNDS, FROM AMARILLO AFB, TEXAS, TO SHEPPARD AFB,TEXAS, UNDER GOVERNMENT BILL OF LADING NO. D 4136392, DATED JUNE 2, 1967. THE BILL OF LADING SHOWS AS TARIFF AUTHORITY, "QUO HUGHETTS 1000W EFF 22 FEB 65."

FREIGHT CHARGES IN THE AMOUNT OF $2.62 PER 100 POUNDS, BASED ON THE ACTUAL WEIGHT OF 12,550 POUNDS SHIPPED, $328.81, WERE BILLED AND PAID. APPARENTLY THE RATE CLAIMED IS THAT PROVIDED FOR CLASS 100, LTL, IN SECTIONS 4 AND 8 OF SOUTHWESTERN MOTOR FREIGHT BUREAU, INC., TARIFF NO. 25 -L, MF-I.C.C. 432 AND SECTION 1 OF SOUTHWESTERN MOTOR BUREAU, INC., TARIFF NO. 14-F, MF-I.C.C. NO. 390.

IN THE AUDIT OF THE PAYMENT VOUCHERS HERE, APPLICABLE CHARGES WERE DETERMINED TO BE $215.86, COMPUTED AT THE RATE OF $1.72 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 12,550 POUNDS, BASED ON 70 PERCENT OF THE FIRST CLASS RATE OF $2.46 PER 100 POUNDS AT 12,000 POUNDS MINIMUM WEIGHT AS SHOWN IN ITEMS 2640 AND 2641 OF J. D. HUGHETT'S TARIFF 1000-W, I.C.C. NO. 16 (HEREAFTER TARIFF 1000-W) WHICH IS A PUBLICATION OF "RATE QUOTATIONS ON U.S. GOVERNMENT FREIGHT." WHEN YOUR COMPANY DECLINED TO REFUND THE RESULTING OVERCHARGE, THE SUM OF $112.95 WAS DEDUCTED FROM REVENUE OTHERWISE DUE FOR OTHER SERVICES.

IN YOUR REQUEST FOR REVIEW, YOU REFER TO YOUR LETTERS OF MAY 23 AND SEPTEMBER 18, 1968, TO OUR TRANSPORTATION DIVISION, WHEREIN YOU CONTEND THAT ITEM 2640 DOES NOT APPLY BECAUSE THE GOVERNMENT HAS FAILED TO FURNISH DOCUMENTARY EVIDENCE THAT THE SHIPMENT DID NOT INCLUDE CONTRABAND FREIGHT; I.E., COMMODITIES DESCRIBED IN ITEM 4000 OF TARIFF 1000-W. AS JUSTIFICATION FOR YOUR SKEPTICISM AS TO THE CONTENT OF THIS SHIPMENT, YOU ALLEGE THAT YOU HAVE "CHECKED SEVERAL SHIPMENTS FROM SAN ANTONIO, TEXAS, KELLY AFB, TO TINKER AFB, OKLAHOMA, CONTAINING SEVERAL ARTICLES WEIGHING LESS THAN SIX POUNDS PER CUBIC FOOT."

TO ILLUSTRATE THIS YOU FURNISHED A COPY OF A CONTINUATION SHEET FOR AN UNRELATED GOVERNMENT BILL OF LADING, NO. D-4497422, PREPARED AT MCCHORD AIR FORCE BASE, WASHINGTON, FOR A SHIPMENT DESCRIBED AS "FREIGHT ALL KINDS," THAT APPEARS TO HAVE MOVED UNDER ANOTHER TARIFF. TARIFF 1000-W DOES NOT APPLY TO SHIPMENTS MOVING FROM OR TO THE STATE OF WASHINGTON AND THE FACT THAT A TOTALLY UNRELATED FREIGHT-ALL-KINDS SHIPMENT MAY HAVE CONTAINED A CERTAIN TYPE OF ARTICLE IS NO INDICATION THAT THE SHIPMENT HERE CONTAINED A SIMILAR ARTICLE.

TARIFF 1000-W (QUO HUGHETTS 1000-W) IS, AS MENTIONED ABOVE, CITED ON GBLD -4136392 IN THE BLOCK PROVIDED FOR TARIFF OR SPECIAL RATE AUTHORITIES AND THE SHIPMENT WAS DESCRIBED AS "FREIGHT ALL KINDS," TO CONFORM WITH ITEM 2640 OF THAT QUOTATION. THERE IS NO EVIDENCE HERE THAT THE SHIPMENT CONTAINED CONTRABAND AND IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, IT MUST BE PRESUMED THAT THE BILL OF LADING DESCRIPTION WAS CORRECT. SEE JANICE, INC. V ACME FAST FREIGHT, INC., 302 I.C.C. 596 (1958). YOUR ALLEGATION THAT THE SHIPMENT MAY HAVE CONTAINED CONTRABAND APPEARS TO BE MERELY CONJECTURAL AND IS INSUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS OF THE BILL OF LADING DESCRIPTION.

YOUR AGENT, RAYMOND HARVEY, ACCEPTED THE SHIPMENT ON JUNE 2, 1967, AND SIGNED THE BILL OF LADING RECEIPT CERTIFYING THAT HE RECEIVED THE PROPERTY DESCRIBED (CONTENTS AND VALUE UNKNOWN). AT THAT TIME MR. HARVEY COULD HAVE DETERMINED WHETHER ANY OF THE 7 CRATES TENDERED WEIGHED LESS THAN 6 POUNDS PER CUBIC FOOT AS PACKED FOR SHIPMENT (THE SECOND CONTRABAND ARTICLE SHOWN IN ITEM 4000 AND THE ONE YOU ALLEGE WAS INCLUDED IN OTHER SHIPMENTS).

THE DESCRIPTION OF THE PROPERTY AND REFERENCE TO THE TARIFF WERE IN ACCORDANCE WITH RULE 360, SECTION 2(C), OF NATIONAL MOTOR FREIGHT CLASSIFICATION A-9, ONE OF THE TARIFFS GOVERNING THE QUOTATION, WHICH READS, IN PERTINENT PART:

TO INSURE THE ASSESSMENT OF CORRECT FREIGHT CHARGES AND AVOID INFRACTIONS OF FEDERAL AND STATE LAWS, SHIPPERS SHOULD ACQUAINT THEMSELVES WITH THE DESCRIPTIONS OF ARTICLES IN THE TARIFF UNDER WHICH THEY SHIP. COMMODITY WORD DESCRIPTIONS MUST BE USED IN SHIPPING ORDERS AND BILLS OF LADING AND MUST CONFORM TO THOSE IN THE APPLICABLE TARIFF. ***

AND SECTION 3 OF THE SAME RULE READS:

WHEN CARRIER'S AGENT BELIEVES IT NECESSARY THAT THE CONTENTS OF PACKAGES BE INSPECTED, HE SHALL MAKE OR CAUSE SUCH INSPECTION TO BE MADE, OR REQUIRE OTHER SUFFICIENT EVIDENCE TO DETERMINE THE ACTUAL CHARACTER OF THE PROPERTY. WHEN FOUND TO BE INCORRECTLY DESCRIBED, FREIGHT CHARGES MUST BE COLLECTED ACCORDING TO PROPER DESCRIPTION.

THUS, THE RULE REQUIRES A SHIPPER TO DESCRIBE HIS PROPERTY IN TERMS OF THE APPLICABLE TARIFF DESCRIPTION, SUBJECT TO THE CARRIER'S RIGHT OF INSPECTION OR RIGHT TO "REQUIRE OTHER SUFFICIENT EVIDENCE TO DETERMINE THE ACTUAL CHARACTER OF THE PROPERTY." WHILE THE RULE DOES NOT EXPRESSLY SAY SO, IT SEEMS OBVIOUS THAT THE CARRIER'S RIGHT TO INSPECT THE PROPERTY OR TO REQUIRE OTHER EVIDENCE OF THE NATURE OF THE LADING MUST BE EXERCISED AT THE TIME OF SHIPMENT AND NOT MONTHS OR YEARS AFTER THE TRANSPORTATION HAS BEEN PERFORMED.

IN THE SUBJECT CASE, THE SHIPMENT WAS DESCRIBED IN TERMS OF THE APPLICABLE QUOTATION DESCRIPTION AND SO FAR AS THE RECORD HERE SHOWS NO CONTRABAND WAS INCLUDED THEREIN. THE SHIPMENT WAS TRANSPORTED FROM ORIGIN TO DESTINATION WITHOUT ANY QUESTION BEING RAISED BY THE CARRIERS AS TO THE NATURE OF THE LADING. IN THESE CIRCUMSTANCES, WE BELIEVE THERE IS NO LEGAL OBLIGATION ON THE PART OF THIS OFFICE TO INVESTIGATE THIS SHIPMENT AT THIS LATE DATE IN ORDER TO DETERMINE, IF POSSIBLE ITS ACTUAL CONSIST. AND WE BELIEVE ALSO THAT WE ARE ENTITLED TO RELY ON THE BILL OF LADING DESCRIPTION FOR SETTLEMENT OF THE FREIGHT CHARGES.

AS AUTHORITY FOR THE CLASS 100 LTL RATE CLAIMED, YOU CITE ITEM 141120 QUOTED BELOW:

141120 NOTIONS, NOI, SEE NOTE, ITEM 141122, IN INNER CONTAINERS IN CLOTH BAGS, OR IN BARRELS OR BOXES *** .

141122 NOTE--ARTICLES OF GOLD, STERLING SILVER OR OTHER PRECIOUS METALS OR ARTICLES WITH STERLING SILVER PARTS SUCH AS COVERS, BACKS, FRAMES, HANDLES OR TOPS, BUT NOT INCLUDING ARTICLES WITH SMALL SILVER ORNAMENTS

WE DOUBT IF THE SHIPMENT UNDER GBL D-4136392 CONSISTED OF "NOTIONS, NOI," AND SINCE IT WAS CONTAINED IN 7 CRATES, EVEN THE PACKING DOES NOT CONFORM WITH THE DESCRIPTION IN THE ITEM ON WHICH YOU RELY.

ONE OF THE MAJOR ADVANTAGES TO SHIPPER AND CARRIER ALIKE IN THE USE OF "FREIGHT, ALL KINDS," (FAK) RATES IS THE ELIMINATION OF THE NECESSITY TO DESCRIBE AND RATE THE MANY VARIOUS ARTICLES COMPRISING MIXED TRUCKLOAD SHIPMENTS. THIS ADVANTAGE WAS REFERRED TO BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF PUBLIC UTILITIES COMMISSION OF CALIFORNIA V UNITED STATES, 355 U.S. 534, 544-545 (1958), AND APPARENTLY WAS AN IMPORTANT ELEMENT AFFECTING THE DECISION REACHED THERE. THIS ADVANTAGE OBVIOUSLY WOULD BE NEGATED IF OUR OFFICE WERE REQUIRED TO INVESTIGATE, LONG AFTER THE SHIPMENT HAD MOVED, EVERY FAK LADING REACHED IN THE AUDIT HERE OF GOVERNMENT TRANSPORTATION ACCOUNTS. FURTHERMORE, THE ADMINISTRATIVE BURDEN, NOT ONLY ON THIS OFFICE BUT ON THE SHIPPING AGENCIES AS WELL, WOULD BE OUT OF ALL PROPORTION TO ANY BENEFITS ACCRUING FROM THE USE OF FAK RATES. ANY QUESTIONS ABOUT FAK LADINGS SHOULD, IT SEEMS TO US, BE RAISED BY THE CARRIER'S AGENT AT THE TIME THE SHIPMENT IS ACCEPTED FOR TRANSPORTATION.

FOR THE REASONS STATED, WE BELIEVE THE SETTLEMENT BASED ON THE "FREIGHT, ALL KINDS," RATE PROVIDED IN ITEM 2640 OF THE QUOTATION WAS CORRECT. SINCE YOU HAVE PRESENTED NO EVIDENCE THAT THE SHIPMENT IN QUESTION CONTAINED CONTRABAND ARTICLES, WE SUSTAIN THE SETTLEMENT AND, ACCORDINGLY, DENY YOUR CLAIM FOR REFUND OF THE DEDUCTION MADE TO RECOVER THE OVERCHARGE.