B-169627, MAR 1, 1971, 50 COMP GEN 601

B-169627, MAR 1, 1971, 50 COMP GEN 601

TRANSPORTATION - RATES - EXPORT - THROUGH RATE - BILLS OF LADING STATUS THE FACT THAT THE COMMERCIAL BILL OF LADING COVERING THE SHIPMENT OF RADIO EQUIPMENT FROM CANADA TO CALIFORNIA FOR EXPORT WAS REQUIRED TO BE CONVERTED TO A GOVERNMENT BILL OF LADING AND A SECOND GOVERNMENT BILL OF LADING WAS ISSUED FOR THE CALIFORNIA TO AUSTRALIA PART OF THE SHIPMENT DOES NOT PRECLUDE THE APPLICATION OF THE LOWEST AVAILABLE RATE TO DETERMINE THE CHARGES FROM CALIFORNIA TO AUSTRALIA AND THE RECOVERY FROM THE OCEAN CARRIER OF AN OVERCHARGE THAT IS THE DIFFERENCE BETWEEN LOCAL AND OVERLAND RATES FOR OCEAN FREIGHT AND WHICH INCLUDES WHARFAGE AND HAULING CHARGES. THE EXPORT NATURE OF THE SHIPMENT WAS KNOWN TO THE CARRIERS, AND BUT FOR THE REQUIREMENT TO USE UNITED STATES GOVERNMENT BILLS OF LADING, A THROUGH EXPORT BILL OF LADING WOULD HAVE ISSUED, AND, FURTHERMORE, UNDER THE GOVERNMENT BILLS OF LADING, THE SHIPMENT WAS MADE SUBJECT TO THE TERMS AND RATES OF COMMERCIAL SHIPMENTS.

TO THE GENERAL STEAMSHIP CORPORATION, LTD., MARCH 1, 1971:

WE HAVE FOR CONSIDERATION AN OVERCHARGE OF $1,250.40 COLLECTED BY YOUR COMPANY. THE OVERCHARGE IS THE DIFFERENCE BETWEEN THE LOCAL RATES AND LOWER OVERLAND RATES FOR OCEAN FREIGHT, INCLUDING ALL OF THE WHARFAGE AND HAULING CHARGES COLLECTED FROM THE SHIPPER. OUR REQUEST FOR REFUND (FORM NO. 1003) WAS ISSUED TO YOU ON MARCH 21, 1969, AND YOU DECLINED TO REFUND FOR THE REASONS STATED IN YOUR LETTER OF MAY 15, 1969, TO OUR TRANSPORTATION DIVISION.

THE REQUEST FOR REFUND CONCERNS A SHIPMENT CONSISTING OF THREE CARLOADS OF RADIO EQUIPMENT AND ANTENNAS, PART OF WHICH WERE MOUNTED ON A TRAILER VEHICLE. THE TOTAL WEIGHT OF THE SHIPMENT WAS 54,225 POUNDS WITH A VOLUME OF 6,525 CUBIC FEET. THE CARGO WAS LOADED ABOARD THE M/S CUMULUS AT PIER 143 IN WILMINGTON HARBOR ON NOVEMBER 16, 1967, AND THE GENERAL STEAMSHIP CORPORATION ISSUED AN OCEAN BILL OF LADING BEARING REFERENCE TO EXPORT DECLARATION NO. 135107. THE CONSIGNEE OF THE SHIPMENT IS SHOWN ON THE BILL OF LADING AS THE OFFICER-IN-CHARGE, DGO TELEMETRY STATION, NORTHERN TERRITORY COMMAND, LARRAKEYAH BARRACKS, DARWIN, NORTHERN TERRITORY, AUSTRALIA. THIS BILL OF LADING, ISSUED IN MEMORANDUM FORM, MAKES REFERENCE TO GOVERNMENT BILL OF LADING (GBL) D 5332570, WHICH WAS ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) ON NOVEMBER 1, 1967. BILL OF LADING D-5332570 SHOWS THAT THE CARGO WAS RECEIVED BY THE "RECEIVING CLERK - BERTH 143 PACIFIC AUSTRALIA DIRECT LINE S/S CUMULUS)."

THE INBOUND BILLING WAS COVERED BY A COMMERCIAL BILL OF LADING CONVERTED TO GBL E-8508639 WHICH SHOWS THAT THIS CARGO ORIGINATED AT CHURCHILL, MANITOBA, CANADA, WAS CONSIGNED TO THE GENERAL STEAMSHIP CO., FOR "SS CUMULUS, PIER 143," MOVED DIRECT BY RAILROAD AND WAS DELIVERED IN CARE OF THE UNITED STATES DESPATCH AGENCY AT PIER 143, WILMINGTON, CALIFORNIA, ON NOVEMBER 13, 1967.

PRESUMABLY, BECAUSE NO INBOUND REFERENCE WAS SHOWN ON THE OUTBOUND BILLING YOU COMPUTED FREIGHT AT THE LOCAL RATE OF $84.75 PER MEASUREMENT TON, $13,824.84, PLUS HEAVY LIFT CHARGES OF $447.18; WHARFAGE OF $163.13; AND HANDLING OF $219.31, PRODUCING TOTAL FREIGHT OF $14,654.46 FOR TRANSPORTATION TO BRISBANE, AUSTRALIA, PLUS $5,165.39 FOR FREIGHT FROM BRISBANE TO DARWIN. NO QUESTION EXISTS WITH RESPECT TO THIS LATTER ITEM OF $5,165.39. SINCE OUR TRANSPORTATION DIVISION ESTABLISHED THAT THE CARGO ORIGINATED AT CHURCHILL, MANITOBA, AND TRAVELED ALL RAIL TO PIER 143, WILMINGTON, CALIFORNIA, THE CHARGES WERE REVISED TO THE LOWER OVERLAND BASIS OF RATES, THAT IS, $79.25 PER MEASUREMENT TON, RESULTING IN CHARGES OF $12,927.66, PLUS $447.18 HEAVY LIFT CHARGES. THE OVERLAND RATES INCLUDE WARFAGE AND HANDLING; HENCE YOU WERE REQUESTED TO REFUND THE $163.13 WHARFAGE AND $219.31 HANDLING CHARGES AS WELL AS THE EXCESS THROUGH CHARGES WHICH YOU COLLECTED.

YOUR REASON FOR DECLINING TO MAKE THE REQUESTED REFUND OF $1,250.40 IS THAT, AS STATED IN YOUR LETTER OF MAY 15, 1969, THE OVERLAND RATES APPLY ONLY IF THE RAILROAD HAS ISSUED A THROUGH EXPORT RAIL BILL OF LADING. YOU STATE FURTHER THAT THE SOUTHERN PACIFIC RAILROAD HAS DECLINED TO REMIT ITS SHARE OF THE OVERCHARGE AND YOU ENCLOSE A COPY OF THE SOUTHERN PACIFIC'S LETTER TO YOU DATED MAY 9, 1969, AND A COPY OF THE TARIFF PAGE STATING CONDITIONS UNDER WHICH THE CARRIER WILL ISSUE THROUGH EXPORT BILLS OF LADING.

THE FACTS REGARDING THIS SHIPMENT SHOW THAT RAILROAD CARS CN556351, CN472604 AND CN661043 WERE LOADED AT FORT CHURCHILL, MANITOBA, AND SWITCHED TO THE CANADIAN NATIONAL RAILWAY ON OR ABOUT OCTOBER 30, 1967. WE HAVE OBTAINED TWO OF THE THREE WAYBILLS ISSUED TO COVER THE MOVEMENTS OF THESE CARS, WAYBILL NOS. 100756 AND 100757. THE WAYBILLS SHOW THAT THE CARS WERE CONSIGNED TO: "PACIFIC AUSTRALIA DIRECT LINE C/O SS CUMULUS LOS ANGELES HARBOUR." IN THE BODY OF THE WAYBILLS THE FOLLOWING NOTATION IS FOUND: "FINAL DESTN SYDNEY NEW SOUTH WALES AUSTRALIA."

THE COMMERCIAL BILL OF LADING IS NOT AVAILABLE, APPARENTLY BEING RETAINED BY THE SOUTHERN PACIFIC COMPANY, SINCE GOVERNMENT BILL OF LADING E-8508639 WAS ISSUED FEBRUARY 1, 1968, BY THE U.S. DESPATCH AGENCY, TO CONVERT THE COMMERCIAL BILL OF LADING. THE GOVERNMENT BILL OF LADING MAKES REFERENCE TO SOUTHERN PACIFIC FREIGHT BILLS "W/B 100757,756,758." THE CONSIGNEE'S CERTIFICATE OF DELIVERY IS ACCOMPLISHED SHOWING THAT THE CARS WERE RECEIVED AT WILMINGTON BY THE U.S. DESPATCH AGENCY ON NOVEMBER 13, 1967. THAT SAME DAY, THE U.S. DESPATCH AGENCY BOOKED THE CARGO AND ORDERED THE CARS TO PIER 143, WHERE THE S/S CUMULOUS WAS LOADING. TWO WEEKS EARLIER ON NOVEMBER 1, 1967, WHILE THE SHIPMENT WAS EN ROUTE FROM CHURCHILL, MANITOBA, TO WILMINGTON, CALIFORNIA. NASA ISSUED BILL OF LADING D-5332570 TO COVER THE VOYAGE FROM WILMINGTON TO DARWIN, NORTHERN TERRITORY, AUSTRALIA. AS PREVIOUSLY STATED, RECEIPT OF THE SHIPMENT FOR THE VESSEL IS SHOWN TO BE BY THE "RECEIVING CLERK - BERTH 143 PACIFIC AUSTRALIA DIRECT LINE, S/S CUMULUS," AND BILL OF LADING D-5332570 SHOWS THE TOTAL VOLUME OF THE CARGO TO BE 6,525 CUBIC FEET AND THE WEIGHT TO BE 54,225 POUNDS. THIS IS EXACTLY THE CUBE AND WEIGHT SHOWN ON THE EXPORT BILLING INSTRUCTIONS BY THE U.S. DESPATCH AGENCY ON NOVEMBER 13, 1967, THE DAY THE CARS ARRIVED IN WILMINGTON.

THUS, THE FOLLOWING FACTS ARE ESTABLISHED: (1) THE SHIPMENT MOVED FROM CHURCHILL, MANITOBA, VIA ALL RAIL DIRECT TO PIER 143 AT WILMINGTON ON BILLING THAT SHOWED THE SHIPMENT WAS FOR EXPORT TO SYDNEY, AUSTRALIA; (2) THE SHIPMENT AT NO TIME LEFT THE POSSESSION OF THE CARRIERS; AND (3) THE GOVERNMENT BILL OF LADING COVERING THE VOYAGE FROM WILMINGTON TO DARWIN, AUSTRALIA, WAS ISSUED PRIOR TO THE TIME THE SHIPMENT LEFT THE POSSESSION OF THE RAILROAD AT THE PORT OF EXPORTATION. REFERENCE TO GOVERNMENT BILL OF LADING D-5332570 IS SHOWN ON THE U.S. DESPATCH AGENCY'S EXPORT BILLING INSTRUCTIONS AND ON THE MEMORANDUM OCEAN BILL OF LADING ISSUED AT LOS AGNELES ON NOVEMBER 16, 1967.

WE BELIEVE THESE FACTS SHOW THAT BOTH THE ORIGINATING RAIL CARRIER, THE CANADIAN NATIONAL RAILWAY AT CHURCHILL, MANITOBA, AND THE OCEAN CARRIER WERE FULLY INFORMED OF THE EXPORT NATURE OF THE SHIPMENT, AND THAT IT WAS FOR TRANSPORTATION BEYOND PIER 143, WILMINGTON, CALIFORNIA. UNDER THESE CIRCUMSTANCES WE ALSO BELIEVE THAT BUT FOR THE FACT THAT UNITED STATES GOVERNMENT PROPERTY WAS INVOLVED AND UNITED STATES GOVERNMENT BILLS OF LADING WERE REQUIRED A THROUGH EXPORT BILL OF LADING WOULD HAVE BEEN ISSUED BY THE SOUTHERN PACIFIC COMPANY AT WILMINGTON IN ACCORDANCE WITH PART 1, ITEM 760 OF TARIFF NO. 29-N, SET FORTH IN THE COPY OF THE TARIFF PAGE FURNISHED WITH YOUR LETTER OF MAY 15, 1969.

IN ACCORDANCE WITH APPLICABLE GOVERNMENT REGULATIONS, THE COMMERCIAL BILL OF LADING FOR THE MOVEMENT FROM CHURCHILL, MANITOBA, TO WILMINGTON, CALIFORNIA, WAS CONVERTED TO GOVERNMENT BILL OF LADING E 8508639. SECOND GOVERNMENT BILL OF LADING TO COVER THE VOYAGE FROM WILMINGTON TO AUSTRALIA WAS ISSUED 2 WEEKS BEFORE THE SHIPMENT ARRIVED IN WILMINGTON. CONDITIONS 2 AND 3 ON THE BACK OF THE GOVERNMENT BILL OF LADING PROVIDE:

2. UNLESS OTHERWISE SPECIFICALLY PROVIDED OR OTHERWISE STATED HEREON, THIS BILL OF LADING IS SUBJECT TO THE SAME RULES AND CONDITIONS AS GOVERN COMMERCIAL SHIPMENTS MADE ON THE USUAL FORMS PROVIDED THEREFOR BY THE CARRIER.

3. SHIPMENT MADE UPON THIS BILL OF LADING SHALL TAKE NO HIGHER RATE THAN WOULD BE CHARGED HAD THE SHIPMENT BEEN MADE UPON THE UNIFORM STRAIGHT BILL OF LADING, UNIFORM EXPRESS RECEIPT, OR OTHER FORMS USUALLY PROVIDED BY CARRIERS FOR COMMERCIAL SHIPMENTS.

ACCORDINGLY, THE USE OF THE GOVERNMENT BILLS OF LADING PURSUANT TO REQUIRED STANDARD GOVERNMENT PROCEDURES DOES NOT PRECLUDE THE APPLICATION OF THE LOWEST AVAILABLE RATE TO DETERMINE THE CHARGES FOR THE VOYAGE FROM WILMINGTON, CALIFORNIA, TO AUSTRALIA. WE AGAIN REQUEST THAT YOU REFUND THE $1,250.40 FOUND OVERPAID ON THIS SHIPMENT; THE REFUND SHOULD BE MADE PROMPTLY TO AVOID OTHER COLLECTION PROCEDURES FOR THE RECOVERY OF THE OVERPAYMENT.