B-135992, FEB. 3, 1961

B-135992, FEB. 3, 1961

CAROLINA FREIGHT CARRIERS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1960, YOUR CLAIM 060-814, PRO. 859164, REGARDING OUR STATEMENT OF OVERCHARGE IN THE AMOUNT OF $104.05 ON THE CHARGES BILLED BY YOUR COMPANY ON A SHIPMENT OF ENGINES, NOI, INTERNAL COMBUSTION, AND PARTS, WEIGHING 21,793 POUNDS, MOVING FROM PEASE AIR FORCE BASE, PORTSMOUTH, NEW HAMPSHIRE, TO ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA, VIA RAND PICKERING EXPRESS, INC., AND CAROLINA FREIGHT CARRIERS CORPORATION UNDER GOVERNMENT BILL OF LADING AF-8711400, DATED JULY 23, 1959.

FOR THIS SERVICE YOU CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF A CLASS 45 RATE OF $2.11 PER 100 POUNDS ON 15,069 POUNDS SUBJECT TO A TRUCKLOAD MINIMUM WEIGHT OF 20,000 POUNDS, ON THE PREMISE THAT ONE TRAILER WAS LOADED TO FULL VISIBLE CAPACITY, AND ON THE BASIS OF A RATE OF $2.11 PER 100 POUNDS ON THE REMAINDER OF THE WEIGHT OF 8,931 POUNDS (OVERFLOW WEIGHT OF 6,724 POUNDS PLUS 2,207 POUNDS DEFICIT WEIGHT TO MAKE 24,000 POUNDS VOLUME MINIMUM WEIGHT). THUS, YOU BILLED AND WERE PAID AT THE RATE OF $2.11 PER 100 POUNDS FOR 20,000 POUNDS ON ONE VEHICLE AND AT THE SAME RATE FOR 8,931 POUNDS ON ANOTHER, OR A TOTAL OF 28,931 POUNDS FOR A VOLUME SHIPMENT WHICH ACTUALLY WEIGHED 21,793 POUNDS. IN OUR AUDIT OF THE PAYMENT VOUCHER, IT WAS DETERMINED THAT THE CLASSIFICATION AND RATE OF $2.11 PER 100 POUNDS USED BY YOU WAS APPLICABLE, BUT THAT THE CHARGES SHOULD HAVE BEEN COMPUTED ON THE BASIS OF A VOLUME MINIMUM WEIGHT OF 24,000 POUNDS AUTHORIZED BY ITEM 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 AND ITEM 190-L, SUPPLEMENT NO. 167, SOUTHERN MOTOR CARRIERS RATE CONFERENCE, AGENT-S, FREIGHT TARIFF NO. 504, MF-I.C.C. NO. 614, AND ON THIS BASIS THE AMOUNT OF $104.05 WAS FOUND TO HAVE BEEN OVERCHARGED.

THE ANNOTATIONS ON THE BILL OF LADING SHOW THAT YOU COMPUTED YOUR CHARGES ON THE BASIS THAT TWO TRAILERS WERE USED FOR THIS SHIPMENT. HOWEVER, THE BILL OF LADING SHOWS THAT A 35-FOOT TRAILER WAS ORDERED AND FURNISHED AND THAT ONLY ONE TRAILER (CAROLINA TRAILER NO. 756) IS LISTED ON THE BLOCK ENTITLED "CAR INITIALS AND NO.' MOREOVER, WHILE THE BILL OF LADING SHOWS THAT THE SHIPMENT WAS TENDERED TO RANK PICKERING EXPRESS, INC., ON JULY 23, 1959, THE CONSIGNEE'S CERTIFICATE OF DELIVERY BEARS THE TWO DATES JULY 27, 1959, AND AUGUST 25, 1959. IN VIEW OF THE APPARENT DISCREPANCIES APPEARING ON BILL OF LADING AF 8711400, OUR TRANSPORTATION DIVISION REQUESTED ADDITIONAL INFORMATION FROM THE ADMINISTRATIVE OFFICE REGARDING THE CIRCUMSTANCES SURROUNDING THE TENDERING OF THIS SHIPMENT TO THE ORIGIN CARRIER.

IN RESPONSE TO SUCH REQUEST WE WERE FURNISHED A FIRST INDORSEMENT DATED MARCH 4, 1960, FROM R. E. MILES, MAJOR, USAF, TRAFFIC MANAGEMENT OFFICER, 817TH TRAFFIC MANAGEMENT OFFICE, PEASE AIR FORCE BASE, NEW HAMPSHIRE, TO HEADQUARTERS, EASTERN TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, PITTSBURGH 22, PENNSYLVANIA--- A COPY OF WHICH WAS FURNISHED TO YOU BY OUR TRANSPORTATION DIVISION--- ADVISING THAT THE ORIGIN CARRIER WAS REQUESTED TO FURNISH A 35-FOOT LEVEL FLOOR TRAILER FOR THIS SHIPMENT, BUT FURNISHED A 35-FOOT TRAILER WITH A STEP APPROXIMATELY 8 FEET FROM THE FRONT; THAT THIS WAS BROUGHT TO THE ATTENTION OF THE ORIGIN CARRIER PRIOR TO LOADING OPERATIONS; THAT THE CARRIER REQUESTED THE TRAILER FURNISHED BE LOADED IN LIEU OF THE TRAILER ORDERED; THAT THEY WOULD BILL THE LOAD AS ONE TRAILER; AND THAT TRANSFER OF THE LADING WOULD BE AFFECTED AT BOSTON, MASSACHUSETTS, ONTO A TRAILER WHICH WOULD ACCOMMODATE THE WHOLE LOAD.

IN REQUESTING REVIEW OF THE MATTER YOU EXPRESS THE OPINION THAT OUR AUDIT ACTION WAS BASED ON THE QUESTION OF REASONABLENESS AND IT IS THUS WITHOUT EFFECT IN VIEW OF THE RULING IN T.I.M.E., INC. V. UNITED STATES AND DAVIDSON TRANSFER AND STORAGE CO., INC. V. UNITED STATED, 359 U.S. 464. YOU ALSO CONTEND THAT ORAL INSTRUCTIONS ALLEGEDLY RECEIVED IN CONNECTION WITH A SHIPMENT MOVING UNDER BILL OF LADING AF 5599511, YOUR CLAIM 058-8, PRO. 945301, WERE NOT TAKEN INTO CONSIDERATION IN OUR DECISIONS OF SEPTEMBER 15, 1960, AND OCTOBER 5, 1960, B-135992, AND THAT, THEREFORE, ANY ORAL REPRESENTATIONS MADE BY THE ORIGIN CARRIER SHOULD LIKEWISE HAVE NO BEARING ON THE INSTANT SHIPMENT MOVING UNDER BILL OF LADING AF- 8711400. YOU FURTHER CONTEND THAT THERE IS NO OBLIGATION UPON THE ORIGIN CARRIER TO FURNISH ANY PARTICULAR EQUIPMENT; THAT SHIPMENTS HAVING ONCE BEEN LOADED AT POINT OF ORIGIN MUST MOVE ON THE EQUIPMENT USED AND THAT, THEREFORE, IN ACCORDANCE WITH THE PROVISIONS OF ITEM 190-L, SUPPLEMENT NO. 167, SOUTHERN MOTOR CARRIERS RATE CONFERENCE, AGENT-S, FREIGHT TARIFF NO. 504, YOU HAVE ASSESSED THE CORRECT CHARGE.

OUR DECISIONS OF SEPTEMBER 15 AND OCTOBER 5, 1960, WERE NOT INTENDED TO IMPLY THAT OUR OFFICE WOULD NOT, UNDER ANY CIRCUMSTANCES, TAKE INTO CONSIDERATION ORAL INSTRUCTIONS OR AGREEMENTS BETWEEN THE SHIPPER AND THE CARRIER IN COMPUTING THE CHARGES FOUND APPLICABLE IN OUR AUDIT. ON THE CONTRARY, YOU WERE ADVISED IN THE DECISION OF SEPTEMBER 15, 1960, THAT WE HAD BEEN UNSUCCESSFUL IN OUR EFFORTS TO CONFIRM YOUR CONTENTION REGARDING THE ORAL INSTRUCTIONS YOU CONTEND YOU RECEIVED WITH RESPECT TO THE SHIPMENT MOVING UNDER BILL OF LADING AF-5599511. MOREOVER, IN OUR DECISION OF OCTOBER 5, 1960, IT WAS SPECIFICALLY STATED THAT---

"* * * THE RECORD HERE CONTAINS A FIRST INDORSEMENT DATED MARCH 25, 1958, COPY ENCLOSED, FROM THE CHIEF, TRANSPORTATION DIVISION, DIRECTORATE, SUPPLY AND SERVICES, ROBINS AIR FORCE BASE, GEORGIA, TO THE DIRECTOR, HEADQUARTERS, SOUTHERN TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AGENCY, FOREST PARK, GEORGIA, WHICH CLEARLY INDICATES THIS SHIPMENT WAS TENDERED TO YOUR COMPANY WITH THE UNDERSTANDING THAT THE FREIGHT TRAILER WOULD BE LOADED ON YOUR EQUIPMENT AND TRANSPORTED ACCORDINGLY; THAT NO ANNOTATION WAS MADE ON BILL OF LADING AF-5599511 TO THE EFFECT TOW AWAY SERVICE WAS REQUESTED; THAT AS FAR AS CAN BE DETERMINED, YOU WERE NOT GRANTED AUTHORITY TO "TOW" THE TRAILER; THAT OF THE THREE MOTOR CARRIERS, INCLUDING YOUR COMPANY, AUTHORIZED TO SERVICE THAT ACTIVITY, ONLY ONE, DEALERS TRANSIT, INC., HAD "TOW AWAY" RIGHTS; THAT IF TOW AWAY SERVICE WAS REQUIRED, DEALERS TRANSIT, INC., WOULD HAVE BEEN UTILIZED, AND THAT THE REASON TOW AWAY SERVICE VIA THAT CARRIER WAS NOT UTILIZED WAS THAT THE DISTANCE INVOLVED WAS CONSIDERED TOO GREAT FOR THAT TYPE SERVICE AND WOULD NOT HAVE BEEN IN THE BEST INTEREST OF THE GOVERNMENT.'

THE STATEMENT OF FACTS IN THE ADMINISTRATIVE REPORT QUOTED ABOVE EXPLICITLY REFUTES THE REPRESENTATIONS MADE BY YOU WITH REGARDS TO THE CIRCUMSTANCES SURROUNDING THE TENDERING OF THE SHIPMENT MOVING UNDER BILL OF LADING AF-5599511. IN THE ABSENCE OF EVIDENCE CLEARLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF, WE MUST, IN ACCORDANCE WITH THE LONG-ESTABLISHED RULE OF THE ACCOUNTING OFFICERS, ACCEPT AS TRUE THE REPORT OF THE ADMINISTRATIVE OFFICE AS TO THE FACTS STATED THEREIN. SEE 3 COMP. GEN. 51; 16 ID. 1105, 1106; 20 ID. 573, 578; 31 ID. 288, 289, AND 34 ID. 522, 529. THUS, ON THE BASIS OF THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE, OUR AUDIT ACTION, WITH RESPECT TO THE SHIPMENT MOVING UNDER THAT BILL OF LADING, WAS SUSTAINED BY OUR DECISIONS, B-135992, DATED SEPTEMBER 15 AND OCTOBER 5, 1960.

PARAGRAPH 4 OF ITEM 190-L OF THE ABOVE-MENTIONED SUPPLEMENT NO. 167 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"4. SHIPPER'S REQUEST FOR TRAILERS OF LENGTHS SPECIFIED IN COLUMNS A, B AND C OF PARAGRAPH 2 WILL BE COMPLIED WITH WHEN SUCH TRAILERS ARE AVAILABLE; IF NOT AVAILABLE THE FOLLOWING WILL PPLY:

"/B) WHEN CARRIER IS UNABLE TO FURNISH A TRAILER OF THE LENGTH ORDERED OR A LONGER TRAILER, TWO TRAILERS WILL BE FURNISHED UNDER THE FOLLOWING CONDITIONS:

ONE OF THE TRAILERS, THE LONGER OF THE TWO, IF OF DIFFERENT LENGTHS, SHALL BE CHARGED AT THE APPLICABLE TRUCKLOAD OR VOLUME RATE, SUBJECT TO THE MINIMUM WEIGHT SPECIFIED IN PARAGRAPH (2) FOR SUCH TRAILER, AND REMAINDER OF SHIPMENT CHARGED FOR AT THE APPLICABLE TRUCKLOAD OR VOLUME RATE AT THE ACTUAL WEIGHT, BUT IN NO CASE SHALL THE TOTAL WEIGHT CHARGED FOR THE TWO TRAILERS BE LESS THAN THE WEIGHT SPECIFIED IN PARAGRAPH (2) FOR THE TRAILER ORDERED. NOTATION MUST BE MADE BY ORIGINATING CARRIER ON THE BILL OF LADING READING: "TRAILER----- FT. IN LENGTH ORDERED BY SHIPPER AND -----TRAILERS----- FT. AND FT. (SIC) IN LENGTH FURNISHED BY CARRIER.'"

NO SUCH ANNOTATION APPEARS ON BILL OF LADING AF-8711400. IN THAT CONNECTION IT MAY BE STATED WITH RESPECT TO THE PREPARATION OF THE GOVERNMENT BILL OF LADING, IT IS A WIDELY ACCEPTED AND A LONG STANDING PRACTICE OF MANY LARGE BUSINESS ENTERPRISES, AS WELL AS OF THE GOVERNMENT, TO PREPARE THEIR OWN BILLS OF LADING. SEE DOMESTIC BILL OF LADING AND LIVESTOCK CONTRACTS, 172 I.C.C. 362, 364; EMERGENCY FREIGHT CHARGES, 1935, 208 I.C.C. 4, 51. THIS DOES NOT, HOWEVER, RELIEVE THE CARRIER OF THE DUTY IMPOSED BY SECTIONS 20 (11) AND 219 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 20 (11) AND 319, OF ISSUING--- AS DISTINGUISHED FROM PREPARING--- APPROPRIATE BILLS OF LADING. EVEN WHERE THE BILL OF LADING IS PREPARED BY THE SHIPPER, THE MOTOR CARRIER HAS AN OBLIGATION TO REFRAIN FROM EXECUTING THE DOCUMENT IF IT CANNOT BE LAWFULLY COMPLIED WITH, OR IF IT CONTAINS CONFLICTING PROVISIONS. SEE EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY CO., 234 I.C.C. 441, 442; SOUTHGATE BROKERAGE CO., INC. V. LEHIGH VALLEY RAILROAD CO., 274 I.C.C. 245, 247. ALTHOUGH THE GOVERNMENT BILL OF LADING FORM IS DESIGNED TO MEET THE ACCOUNTING NEEDS OF THE GOVERNMENT, THERE IS NOTHING IMPRINTED THEREON WHICH RELIEVES EITHER THE CARRIER OR THE GOVERNMENT FROM OBSERVING THE CONDITIONS IMPOSED BY THE RULES AND PROVISIONS OF DULY FILED TARIFFS WITH THE EXCEPTION OF DEPARTURES AUTHORIZED UNDER SECTIONS 22, AND 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 AND 317 (B).

THE BASIS OF OUR AUDIT ACTION DOES NOT CONCERN ITSELF WITH THE QUESTION OF REASONABLENESS OF CHARGES CONSIDERED IN THE T.I.M.E. AND DAVIDSON CASES CITED ABOVE, BUT RATHER CONCERNS THE APPLICABILITY OF THE TARIFF PROVISIONS INVOLVED. TO AVAIL ITSELF OF CHARGES COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 (B) OF ITEM 190-L QUOTED ABOVE, IT WAS MANDATORY THAT THE ORIGIN CARRIER PLACE THE NOTATION APPEARING THEREIN ON THE BILL OF LADING. THIS WAS NOT DONE NOR WAS THE IDENTIFICATION NUMBER OF A SECOND VEHICLE INSERTED ON THE BILL OF LADING IN THE SPACE PROVIDED THEREFOR. THUS, THE INFORMATION FURNISHED BY THE ADMINISTRATIVE OFFICE SUPPORTS THE CONCLUSION THAT IF THE ORIGIN CARRIER HAD FURNISHED A 35-FOOT LEVEL TRAILER AS ORDERED, THE ENTIRE SHIPMENT COULD HAVE BEEN LOADED THEREON, AND THAT THE SHIPMENT WOULD BE BILLED AS LOADED ON ONE TRAILER IF THE EQUIPMENT FURNISHED WAS UTILIZED IN LIEU OF THE EQUIPMENT ORDERED. THE MATTER OF THE TRANSFER OF THE LADING AT BOSTON ONTO A TRAILER WHICH WOULD ACCOMMODATE THE WHOLE LOAD WOULD APPEAR TO BE A MATTER OF ADJUSTMENT BETWEEN YOU AND THE ORIGIN CARRIER.

ACCORDINGLY, UNLESS A REFUND OF THE AMOUNT OF $104.05 IS RECEIVED HERE WITHIN 30 DAYS. COLLECTION OF THE OVERCHARGE ON BILL OF LADING AF-8711400 WILL BE EFFECTED, AS AUTHORIZED BY 49 U.S.C. 66, OF THE AMOUNT BY DEDUCTION FROM OTHER MONIES FOUND TO BE PAYABLE TO YOUR COMPANY OR BY WHATEVER OTHER MEANS MAY BE AVAILABLE.