B-168764, FEB. 25, 1970

B-168764, FEB. 25, 1970

TRANSPORTATION--FREIGHT CHARGES--FREIGHT ALL KINDS RATES DECISION TO GEORGIA HIGHWAY EXPRESS, INC; SUSTAINING DISALLOWANCE OF CLAIM FOR $100.22 FOR ADDITIONAL FREIGHT CHARGES ON MIXED LESS TRUCKLOAD SHIPMENT FROM EDWARDS AIR FORCE BASE TO ROBINS AIR FORCE BASE. A MOTOR CARRIER WHO CONTENDS THAT ITEM 680 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU QUOTATION DOES NOT APPLY TO SEVERAL ITEMS BECAUSE THE "FREIGHT ALL KINDS" (FAK) PIECES ARE NOT SPECIFICALLY DESCRIBED ON THE BILL OF LADING SHOULD HAVE QUESTIONED THE SHIPMENT AND DESCRIPTION AT THE TIME OF ACCEPTANCE. ONE OF THE ADVANTAGES OF FAK RATINGS IS THE ELIMINATION OF THE NECESSITY TO DESCRIBE AND RATE MANY VARIOUS ITEMS COMPRISING MIXED TRUCKLOAD SHIPMENTS. THIS ADVANTAGE WOULD BE NEGATED IF LONG AFTER THE SHIPMENT HAD MOVED, IF THE ITEMS COMPRISING THE SHIPMENT HAD TO BE INVESTIGATED.

TO GEORGIA HIGHWAY EXPRESS, INC.:

WE REFER TO YOUR LETTER DATED JANUARY 5, 1970, TRANSMITTING COPIES OF RELATED PAPERS AND REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR $100.22 (YOUR CLAIM 20372, OUR TK-892347) BY SETTLEMENT DATED OCTOBER 9, 1969.

THE AMOUNT CLAIMED REPRESENTS ADDITIONAL FREIGHT CHARGES ON A MIXED LESS TRUCKLOAD SHIPMENT THAT MOVED FROM EDWARDS AIR FORCE BASE, CALIFORNIA, TO ROBINS AIR FORCE BASE, GEORGIA, UNDER GOVERNMENT BILL OF LADING NO. D- 4404923, DATED SEPTEMBER 20, 1967. THE SHIPMENT CONSISTED OF 11 PIECES OF FREIGHT WEIGHING 2,930 POUNDS. SIX OF THE PIECES ARE SPECIFICALLY DESCRIBED ON PAGE 2 OF THE BILL OF LADING. THE OTHER FIVE PIECES ARE SHOWN AS "FREIGHT ALL KINDS" (FAK). BOTH CUBE AND WEIGHT OF EACH PIECE ARE SHOWN ON PAGE 2 OF THE BILL OF LADING.

YOU COLLECTED $328.79 ON THIS SHIPMENT, WHICH INCLUDED CHARGES APPARENTLY BASED ON A CLASS 100 RATE OF $11.70 A HUNDRED POUNDS APPLIED TO THE 2,232 POUNDS OF FAK ARTICLES.

IN OUR AUDIT OF THE PAYMENT VOUCHER A RATE OF $7.21 A HUNDRED POUNDS PROVIDED BY ITEM 680 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU GOVERNMENT QUOTATION I.C.C. 19 WAS APPLIED TO THE FIVE FAK PIECES WEIGHING 2,232 POUNDS. THIS RATE PRODUCES TOTAL CHARGES OF $228.57 FOR THE SHIPMENT. WHEN YOUR COMPANY DECLINED TO REFUND THE RESULTING OVERPAYMENT OF $100.22, IT WAS DEDUCTED FROM REVENUE PAYABLE FOR OTHER SERVICES. 49 U.S.C. 66.

IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT ITEM 680 DOES NOT APPLY BECAUSE THE FAK PIECES ARE NOT SPECIFICALLY DESCRIBED ON THE BILL OF LADING AND THAT IT IS IMPOSSIBLE FOR YOU TO DETERMINE IF THEY CONSISTED OF CONTRABAND ARTICLES.

THE DESCRIPTION OF THE PROPERTY IS IN ACCORDANCE WITH RULE 360, SEC. 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 SEC. 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 FIVE PIECES INCLUDED IN THE LESS TRUCKLOAD SHIPMENT WERE DESCRIBED AS FAK IN TERMS OF THE APPLICABLE QUOTATION DESCRIPTION AND SO FAR AS THE RECORD HERE SHOWS NO CONTRABAND WAS INCLUDED. SIGNIFICANTLY, THE SIX PIECES OF FREIGHT THAT WERE LISTED BY COMMODITY WORD DESCRIPTION AND ITEM NUMBER SHOWN IN THE GOVERNING CLASSIFICATION ARE SUBJECT TO LESS TRUCKLOAD RATINGS HIGHER THAN CLASS 100 OR THEY WEIGHED LESS THAN SIX POUNDS PER CUBIC FOOT AS PACKED FOR SHIPMENT AND THEREFORE NONE OF THESE SIX PIECES COULD HAVE MOVED AS FAK UNDER THE QUOTATION.

THE SHIPMENT WAS TRANSPORTED FROM ORIGIN TO DESTINATION WITHOUT ANY QUESTION BEING RAISED BY THE CARRIERS AS TO THE NATURE OF THE LADING. THESE CIRCUMSTANCES, WE BELIEVE THERE IS NO LEGAL OBLIGATION ON OUR PART 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. IN THE ABSENCE OF 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). AND THE PARTY SEEKING TO CHANGE THE DESCRIPTION HAS THE BURDEN OF OVERCOMING THE PRESUMPTION OF ITS CORRECTNESS. SEE EASTMAN KODAK CO. V CENTRAL VERMONT RY. CO; 165 I.C.C. 107, 108 (1930); CONCRETE ENGINEERING CO. V CHICAGO & E. I. RY; 178 I.C.C. 433, 435 (1931); AND BUCH EXPRESS CO. V UNITED STATES, 132 CT. CL. 772 (1955), CERTIORARI DENIED 351 U.S. 940.

ONE OF THE MAJOR ADVANTAGES TO SHIPPER AND CARRIER ALIKE IN THE USE OF 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 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 WE WERE REQUIRED TO INVESTIGATE, LONG AFTER THE SHIPMENT HAD MOVED, EVERY FAK LADING REACHED IN OUR AUDIT OF GOVERNMENT TRANSPORTATION ACCOUNTS. FURTHERMORE, THE ADMINISTRATIVE BURDEN, NOT ONLY ON US 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, IT SEEMS TO US, SHOULD BE RAISED BY THE CARRIER'S AGENT AT THE TIME THE SHIPMENT IS ACCEPTED FOR TRANSPORTATION.

THE SETTLEMENT OF OCTOBER 9, 1969, OUR CLAIM TK-892347, NOT HAVING BEEN ALLEGED OR SHOWN TO HAVE BEEN IN ERROR OTHERWISE, IS SUSTAINED.