B-167729, NOV. 25, 1969

B-167729, NOV. 25, 1969

BILLS OF LADING--NOTATIONS--DENSITY OF SHIPMENT UPON RECONSIDERATION OF CLAIM FOR ADDITIONAL FREIGHT CHARGES FOR ENGINE SHIPMENT BY CARRIER WHO, AFTER BILLING GOVERNMENT AT LOWER RATE, ALLEGED THAT NOTATION "CU 207" AND STATEMENT OF TOTAL WEIGHT ON GOVERNMENT BILL OF LADING DID NOT COMPLY WITH ITEM 240 OF ROCKY MOUNTAIN MOTOR FREIGHT BUREAU QUOTATION NO. 18 OR SECTION 8, RULE 110 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-9, CLAIM IS AGAIN DENIED, SINCE FACT THAT CARRIER BILLED GOVERNMENT ON SECTION 22 BASIS EVIDENCE CARRIER WAS SUFFICIENTLY APPRISED OF GOVERNMENT'S REQUEST FOR LOWER RATE BASED UPON DENSITY OF AT LEAST 8 POUNDS PER CUBIC FOOT AND CLEARLY REFLECTS CARRIER'S UNDERSTANDING OF REASON FOR REFERENCE TO QUOTATION NO. 18; SECTION 8, RULE 110 OF CLASSIFICATION A-9 WAS NOT VIOLATED SINCE FACTORS (WEIGHT AND CUBAGE/ESSENTIAL TO DETERMINING DENSITY WERE STATED ON GBL) AND, IF CARRIER QUESTIONED DENSITY, ARTICLE SHIPPED IN ITS POSSESSION COULD HAVE BEEN MEASURED.

TO RED BALL MOTOR FREIGHT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 27, 1969, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 21, 1969, ON REVIEW OF THE SETTLEMENT CERTIFICATE (OUR TK-890449) SUSTAINING THE DISALLOWANCE OF YOUR CLAIM ON BILL NUMBER 96007-A IN THE AMOUNT OF $10.66. YOUR CLAIM IS FOR ADDITIONAL FREIGHT CHARGES RELATING TO A SHIPMENT DESCRIBED AS ENGINE, INTERNAL COMBUSTION, NOI, RADIAL CYLINDER TYPE, NMFC 120820, WEIGHING 3,950 POUNDS. THIS SHIPMENT MOVED FROM NORTON AIR FORCE BASE, CALIFORNIA, TO DALLAS AIR MOTIVE, INC., DALLAS, TEXAS, UNDER GOVERNMENT BILL OF LADING (GBL) D-3925570, DATED DECEMBER 21, 1967.

YOUR ORIGINAL BILLING WAS PAID AS CLAIMED IN THE AMOUNT OF $234.63, AND THE SUPPLEMENTAL CLAIM FOR $10.66 IS BASED ON YOUR POSITION THAT THE SECTION 22 QUOTATION BASIS (REFERENCED ON THE GBL) WAS NOT APPLICABLE BECAUSE THE WEIGHT DENSITY WAS NOT SHOWN ON THE GBL. IT HAS BEEN YOUR CONTENTION THAT THE NOTATION ON THE GBL WHICH READS "CU 207," TOGETHER WITH THE STATEMENT OF THE TOTAL ACTUAL WEIGHT DOES NOT COMPLY WITH THE REQUIREMENTS OF ITEM 240 OF THE ROCKY MOUNTAIN MOTOR FREIGHT TARIFF BUREAU (RMMFTB) QUOTATION NO. 18. WHEN RATES ARE BASED UPON THE CUBIC DISPLACEMENT OF THE COMMODITY SHIPPED, ITEM 240 REQUIRES THE FOLLOWING NOTATION ON THE BILL OF LADING: "ACTUAL DENSITY OF THE SHIPMENT IS HEREBY STATED BY THE SHIPPER TO BE ----- POUNDS PER CUBIC FOOT.'

YOU CONTINUE TO MAINTAIN THAT THE NOTATION "CU 207" DOES NOT SUBSTANTIALLY COMPLY WITH THE REQUIREMENTS OF ITEM 240. IN THIS CONNECTION YOU REFER TO THE DEFINITION OF DENSITY IN SECTION 8, RULE 110 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-9. THE PROVISION STATES THAT THE "DENSITY SHALL BE THE RESULT OF THE DIVISION OF THE WEIGHT PER ARTICLE, PIECE OR PACKAGE BY THE CUBAGE ASCERTAINED.' YOU ALSO DISPUTE THE PERTINENCY OF CAMPBELL "66" EXPRESS, INC. V UNITED STATES, 302 F.2D 270, 272 (1962), WHICH WE CITED IN OUR PREVIOUS DECISION.

IN THE CAMPBELL "66" CASE THE UNITED STATES COURT OF CLAIMS STATED: "IT IS TRUE THAT THE TARIFF RULE EXPRESSLY PROVIDES WHAT LANGUAGE IS TO BE ENDORSED ON THE BILL OF LADING IN ORDER TO REQUEST THE EXCLUSIVE USE OF A CARRIER'S VEHICLE, BUT WE DO NOT THINK IT WAS INTENDED THEREBY THAT ALL OTHER LANGUAGE ADEQUATE TO MAKE THE SAME REQUEST WAS TO BE EXCLUDED. WAS NOT INTENDED THAT FORM RATHER THAN SUBSTANCE WOULD GOVERN THE TRANSACTION. IF THERE APPEARS ON THE BILL OF LADING SOME WRITTEN NOTATION, WHICH REASONABLY APPRISES THE CARRIER THAT THE SHIPPER IS REQUESTING THE EXCLUSIVE USE OF ITS VEHICLE, WE THINK THIS IS SUFFICIENT COMPLIANCE WITH THE REQUIREMENT FOR MAKING THE EXCLUSIVE USE RATES APPLICABLE.' THE CAMPBELL "66" PRINCIPLE IS NOT RESTRICTED TO SITUATIONS INVOLVING REQUESTS FOR THE EXCLUSIVE USE OF VEHICLES. IN STRICKLAND TRANSP. CO. V UNITED STATES, 334 F.2D 172 (5TH CIR. 1964), THE CARRIER'S CONTENTION WAS THAT FULL OR UNRELEASED VALUE RATINGS ON ENGINES, INTERNAL COMBUSTION, NOI, APPLIED, RATHER THAN THE RELEASED VALUE RATINGS IN THE CLASSIFICATION, SINCE THE GOVERNMENT, AS SHIPPER, FAILED TO DECLARE THE RELEASED VALUE OF THE ENGINES ON THE GBL AS REQUIRED BY A TARIFF PROVISION. THE COURT, IN REJECTING THIS CONTENTION, STATED THAT CONDITION 5 ON THE REVERSE OF THE GBL CONSTITUTED SUBSTANTIAL COMPLIANCE. AS IN THE CAMPBELL "66" CASE, THE COURT POINTED TO THE PURPOSE OF THE TARIFF REQUIREMENT. THIS PURPOSE WAS TO ENABLE THE CARRIER TO KNOW THAT THE SHIPMENT WAS MOVING AT THE LOWER VALUATION. SEE, ALSO, LOUISIANA AND ARKANSAS PY. CO. V EXPORT DRUM CO., 359 F.2D 311, 315 (5TH CIR. 1966).

WHILE THE ANNOTATION "CU 207" MIGHT NOT HAVE BEEN SIGNIFICANT TO THOSE UNFAMILIAR WITH TRANSPORTATION PROBLEMS OF THE NATURE INVOLVED. WE NOTE THAT RED BALL HAD NO DIFFICULTY DETERMINING THAT THE ANNOTATION WAS ASSOCIATED WITH RMMFTB QUOTATION NO. 18, SINCE RED BALL BILLED THE GOVERNMENT AND WAS PAID CHARGES ON THE BASIS OF THAT QUOTATION. THIS IS STRONG EVIDENCE THAT THE ANNOTATION TOGETHER WITH THE WEIGHT SHOWN ON THE GBL SUFFICIENTLY APPRISED THE CARRIER OF THE GOVERNMENT'S REQUEST FOR APPLICATION OF THE LOWER RATE BASED UPON DENSITY OF AT LEAST 8 POUNDS PER CUBIC FOOT. ALL THAT WAS REQUIRED OF THE CARRIER FROM THE INFORMATION CONTAINED ON THE GBL WAS TO PERFORM A SIMPLE EXERCISE IN ARITHMETIC TO ARRIVE AT THE CONCLUSION THAT THE DENSITY OF THE ENGINE WAS IN EXCESS OF 19 POUNDS PER CUBIC FOOT.

THE RATE AND CHARGES ORIGINALLY BILLED CLEARLY REFLECT THE CARRIER'S UNDERSTANDING OF THE REASON FOR THE REFERENCE TO QUOTATION NO. 18; SECTION 8, RULE 110 OF CLASSIFICATION A-9 WAS NOT VIOLATED SINCE THE TWO FACTORS (WEIGHT AND CUBAGE) ESSENTIAL TO DETERMINING DENSITY WERE STATED ON THE GBL; ALSO, IF THERE WAS ANY QUESTION AS TO THE DENSITY, THE ARTICLE SHIPPED WAS IN THE POSSESSION OF THE CARRIERS AND COULD HAVE BEEN MEASURED.

ACCORDINGLY, THE CONCLUSION REACHED IN OUR DECISION OF OCTOBER 21, 1969, SUSTAINING THE SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM FOR $10.66, IS REAFFIRMED.