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ALL OF THE SHIPMENTS WERE MADE ON COMMERCIAL BILLS OF LADING WHICH DESCRIBED THE PROPERTY SHIPPED FOR THE MOST PART AS RACKS. WHICH WERE CONVERTED TO GOVERNMENT BILLS OF LADING NOS. NONE OF THE OTHER NINE BILLS OF LADING WERE SO ANNOTATED. THE COMMODITY DESCRIPTIONS WERE CHANGED TO FREIGHT TRAILERS AND HAND TRUCKS AND THE EXCLUSIVE-USE NOTATIONS WERE OMITTED. FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES COMPUTED ON THE BASIS OF THE HIGHER RATED RACKS AND FOR THE EXCLUSIVE USE OF THE VEHICLES. THE ATOMIC ENERGY COMMISSION ADVISED THAT THE COMMODITY DESCRIPTIONS SHOULD BE "HAND TRUCKS WITH STANDING ENDS" AND "FREIGHT TRAILERS EXCEEDING 44 INCHES IN HEIGHT" AND THAT "EXCLUSIVE USE OF TRAILER WAS NOT REQUESTED BY THE SHIPPER OR FURNISHED BY THE CARRIER.'.

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B-140462, FEB. 8, 1961

TO ILLINOIS-CALIFORNIA EXPRESS:

BY YOUR LETTER OF AUGUST 31, 1960, FILE DD-344, YOU REQUEST REVIEW OF THE PARTIAL DISALLOWANCE OF YOUR CLAIMS PER BILLS NOS. 2448 AND 2474 FOR ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE ON 12 SHIPMENTS OF GOVERNMENT PROPERTY TRANSPORTED FROM THE ARNOLT CORPORATION, INDIANAPOLIS, INDIANA, TO THE SANDIA CORPORATION AT ALBUQUERQUE, NEW MEXICO, BETWEEN NOVEMBER 24, 1955, AND JUNE 1, 1956.

ALL OF THE SHIPMENTS WERE MADE ON COMMERCIAL BILLS OF LADING WHICH DESCRIBED THE PROPERTY SHIPPED FOR THE MOST PART AS RACKS, SET UP, NOI. IN ADDITION COMMERCIAL BILLS OF LADING NOS. 00613, 00642 AND 00665, WHICH WERE CONVERTED TO GOVERNMENT BILLS OF LADING NOS. AT 133041, AT-133054 AND AT-133087, RESPECTIVELY, BORE THE FOLLOWING ANNOTATION: "SEALED VAN EXCLUSIVE USE.' NONE OF THE OTHER NINE BILLS OF LADING WERE SO ANNOTATED. ON CONVERSION OF THE COMMERCIAL BILLS OF LADING AT DESTINATION TO GOVERNMENT BILLS OF LADING, IN ACCORDANCE WITH 4 C.F.R., 1960 SUPP., SECTION 52.19, THE COMMODITY DESCRIPTIONS WERE CHANGED TO FREIGHT TRAILERS AND HAND TRUCKS AND THE EXCLUSIVE-USE NOTATIONS WERE OMITTED.

FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES COMPUTED ON THE BASIS OF THE HIGHER RATED RACKS AND FOR THE EXCLUSIVE USE OF THE VEHICLES. HOWEVER, IN A LETTER DATED SEPTEMBER 30, 1958, THE ATOMIC ENERGY COMMISSION ADVISED THAT THE COMMODITY DESCRIPTIONS SHOULD BE "HAND TRUCKS WITH STANDING ENDS" AND "FREIGHT TRAILERS EXCEEDING 44 INCHES IN HEIGHT" AND THAT "EXCLUSIVE USE OF TRAILER WAS NOT REQUESTED BY THE SHIPPER OR FURNISHED BY THE CARRIER.' ACCORDINGLY, ON SUBSEQUENT AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE IT WAS DETERMINED THAT THE CHARGES SHOULD BE COMPUTED ON THE BASIS OF LOWER RATED COMMODITIES AS DESCRIBED ON THE GOVERNMENT BILLS OF LADING AND THAT CHARGES FOR EXCLUSIVE USE OF THE EQUIPMENT WAS NOT JUSTIFIED. A NOTICE OF OVERPAYMENT IN THE AMOUNT OF $1,682.66 WAS ISSUED AGAINST BILL NO. 2448, AND ONE IN THE AMOUNT OF $1,012.93 WAS ISSUED AGAINST BILL NO. 2474. THESE OVERPAYMENTS WERE SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION.

PROTEST TO THE ASSESSMENT OF THE OVERPAYMENTS AND CLAIM FOR REFUND OF THE DEDUCTIONS WERE BASED UPON THE ALLEGATION THAT THE COMMODITY DESCRIPTIONS AS STATED ON THE ORIGINAL BILLS OF LADING WERE CORRECT AND THAT ALTERATION OF THE COMMODITY DESCRIPTIONS WAS UNAUTHORIZED BY THE CARRIER, AND UNLAWFUL AND VOID UNDER THE PROVISIONS OF THE BILLS OF LADING ACT, 49 U.S.C. 81 ET SEQ. IT WAS FURTHER ARGUED THAT THE ORIGINAL BILLS OF LADING CLEARLY SHOWED THAT EXCLUSIVE VAN SERVICE WAS REQUESTED, AND YOU ALLEGED THAT SUCH SERVICE WAS PERFORMED. ON FURTHER INQUIRY THE ATOMIC ENERGY COMMISSION REPORTED, IN A LETTER DATED JUNE 2, 1960, FILE AST:EM, THAT GOVERNMENT BILLS OF LADING NOS. AT-133038, AT-133044, AT-133062, AT- 133069, AT,133073, AT-132166, AT-132167, AND AT-133042, ACTUALLY CONSISTED OF A HAND PROPELLED WHEELED VEHICLE WITH A TOWING HANDLE AND FRAME SUPERSTRUCTURE, PROPERLY DESCRIBED AS HAND TRUCKS NOI WITH STANDING ENDS, SIDES STAKES, OR STANDARDS, ALTHOUGH BILLED BY CARRIER AS "RACKS, S.U. NOI.' THE COMMODITY TRANSPORTED UNDER GOVERNMENT BILLS OF LADING NOS. AT- 133054, AT-133083 AND AT 133087 CONSISTED OF "* * * A HEAVY RIGID RECTANGULAR FRAME MOUNTED ON CASTERS, TO BE PULLED BY POWER PROPELLED VEHICLE. COMMODITY DESCRIPTION APPLICABLE, FREIGHT TRAILERS NOI EXCEEDING 44 INCHES.' FINALLY, THE SHIPMENT COVERED BY GOVERNMENT BILL OF LADING NO. AT 133041,"BILLED BY CARRIER AS RACKS S.U. NOI CONSISTED OF A MIXED SHIPMENT OF THE ABOVE COMMODITIES WITH APPLICABLE COMMODITY DESCRIPTIONS ALSO AS ABOVE.' THE COMMISSION ALSO REPORTED, IN A LETTER DATED JUNE 14, 1960, FILE AFA:RBE, THAT THE VEHICLES USED UNDER GOVERNMENT BILLS OF LADING NOS. AT-133041, AT-133054 AND AT-133087 WERE LOADED TO FULL VISIBLE CAPACITY. ON THE BASIS OF THE INFORMATION CONTAINED IN THESE LETTERS, COPIES OF WHICH WERE FURNISHED TO YOU WITH OUR SETTLEMENT CERTIFICATES, YOU WERE ALLOWED $8.49 OF THE AMOUNT OF $1,012.93 CLAIMED ON YOUR BILL NO. 2474, AND $47.07 OF THE AMOUNT OF $1,682.66 CLAIMED ON YOUR BILL NO. 2448.

IN YOUR PRESENT REQUEST FOR REVIEW YOU REFER TO THE STATEMENT IN THE LETTER OF SEPTEMBER 30, 1958, THAT EXCLUSIVE USE OF THE TRAILER WAS NEITHER REQUESTED NOR FURNISHED, AND STATE "YOUR (THE GENERAL ACCOUNTING OFFICE) FILE WILL SHOW THAT WE FURNISHED YOU WITH COPIES OF THE ORIGINAL BILLS OF LADING ON AT LEAST THREE OF THESE SHIPMENTS THAT CLEARLY SHOWED THAT "EXCLUSIVE USE" WAS REQUESTED BY SHIPPER AND FURNISHED BY THE CARRIERS.' IT IS TRUE THAT COMMERCIAL BILLS OF LADING NOS. AT-00613, 00642 AND 00665 WERE ANNOTATED TO SHOW EXCLUSIVE USE. HOWEVER, THE ADMINISTRATIVE OFFICE REPORTED IN ITS LETTER OF JUNE 14, 1960, THAT THE VEHICLES COVERED BY THESE SAME THREE BILLS OF LADING WERE LOADED TO FULL VISIBLE CAPACITY, AND THE INTERSTATE COMMERCE COMMISSION HELD IN CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576, THAT ONCE A VEHICLE IS LOADED TO CAPACITY, A SHIPPER DERIVES NO BENEFIT FROM EXCLUSIVE USE, WHICH IS DESIGNED TO ACCORD TRUCKLOAD SERVICE TO LESS-THAN-TRUCKLOAD SHIPMENTS; AND THAT CHARGES BASED ON THE TRUCKLOAD RATE AND TRUCKLOAD MINIMUM WEIGHT, OR ACTUAL WEIGHT IF GREATER, ARE APPLICABLE. CONSEQUENTLY, YOU ARE NOT ENTITLED TO PREMIUM CHARGES FOR EXCLUSIVE USE OF THE VEHICLES IN CONNECTION WITH THESE THREE SHIPMENTS.

NEITHER ARE YOU ENTITLED TO PREMIUM CHARGES FOR EXCLUSIVE USE IN CONNECTION WITH THE OTHER SHIPMENTS, SINCE WITH THE EXCEPTION OF THE THREE BILLS OF LADING MENTIONED ABOVE, NONE OF THE OTHER BILLS OF LADING WERE ANNOTATED WITH REFERENCE TO EXCLUSIVE USE OF VEHICLE SERVICE. ITEM 15 OF THE APPLICABLE MIDDLEWEST MOTOR FREIGHT BUREAU TARIFF NO. 45-A, J. D. DAWSON, AGENT-S, MF-I.C.C. NO. 241, PROVIDES:

"/A) THE SHIPPER MUST NOTIFY THE CARRIER IN ADVANCE OF THE PICK-UP THAT "EXCLUSIVE USE OF VEHICLE" IS REQUIRED.

"/B) THE SHIPPING ORDER AND BILL OF LADING MUST BE ENDORSED AS FOLLOWS:

"EXCLUSIVE USE OF VEHICLE REQUIRED.'

AND IT IS WELL SETTLED THAT A TARIFF RULE REQUIRING ANNOTATION OF THE BILL OF LADING IN A PARTICULAR MANNER FOR EXCLUSIVE-USE SERVICE IS APART OF THE TARIFF HAVING THE FORCE AND EFFECT OF LAW AND CANNOT BE WAIVED. A CONSEQUENCE EVEN THOUGH EXCLUSIVE-USE SERVICE MAY HAVE BEEN REQUESTED AND PERFORMED, PREMIUM CHARGES FOR EXCLUSIVE USE ARE NOT APPLICABLE IN THE ABSENCE OF THE ANNOTATION IN, AT LEAST, SUBSTANTIAL COMPLIANCE WITH THE TARIFF REQUIREMENT. SEE DAVIS V. HENDERSON, 266 U.S. 92; SOUTHERN KNITWEAR MILLS, INC. V. ASSOCIATED TRANSPORT, INC., 9 FED. CAR. CAS. 710; AND GUS BLASS CO. V. POWELL BROS. TRUCK LINE, 53 M.C.C. 603.

YOU HAVE ALSO REASSERTED THE ARGUMENT THAT THE COMMODITY DESCRIPTIONS AS ORIGINALLY SET FORTH WERE CORRECT, AND THAT THE CHANGES WERE UNAUTHORIZED, UNLAWFUL AND VOID UNDER THE BILLS OF LADING ACT, 49 U.S.C. 81, QUOTING FROM SECTION 13, 49 U.S.C. 93, AS FOLLOWS:

"ANY ALTERATION, ADDITION, OR ERASURE IN A BILL AFTER ITS ISSUE WITHOUT AUTHORITY FROM THE CARRIER ISSUING THE SAME EITHER IN WRITING OR NOTED ON THE BILL, SHALL BE VOID WHATEVER BE THE NATURE AND PURPOSE OF THE CHANGE, AND THE BILL SHALL BE ENFORCEABLE ACCORDING TO ITS ORIGINAL TENOR.'

WHILE IT MAY BE TRUE THAT UNDER THE PROVISIONS OF THIS SECTION THE ORIGINAL TERMS OF THE BILL OF LADING DETERMINE ITS EFFECTS TO THE EXTENT THAT IT IS GOVERNED BY THE BILLS OF LADING ACT, THE TERMS OF THE BILL OF LADING DO NOT, AND CANNOT GOVERN THE APPLICABLE CHARGES UNDER THE MOTOR CARRIER'S ACT, 49 U.S.C. 301 ET SEQ. UNDER SECTION 217 (B) OF THAT ACT, 49 U.S.C. 317 (B), CARRIERS BY MOTOR VEHICLE ARE PROHIBITED FROM DEMANDING, COLLECTING, OR RECEIVING COMPENSATION AT RATES OTHER THAN THE RATES CONTAINED IN THEIR TARIFFS ON THE ARTICLE ACTUALLY SHIPPED. NEITHER MISUNDERSTANDINGS, NOR AGREEMENTS AMONG SHIPPERS OR RECEIVERS AND CARRIERS CAN AFFECT THESE STATUTORY PROVISIONS WHICH OBLIGATE THE CARRIERS TO COLLECT AND THE SHIPPERS OR RECEIVERS TO PAY AMOUNTS NO DIFFERENT--- NEITHER MORE NOR LESS--- THAN THE APPLICABLE RATES. FEDDERS-QUIGAN CORP. V. LONG TRANSP. CO., 64 M.C.C. 581, 587. IT IS WELL ESTABLISHED THAT THE PRESUMPTION OF THE CORRECTNESS OF THE BILL OF LADING DESCRIPTION IS NOT CONCLUSIVE. BELL COMPANY V ANN ARBOR R. CO., 174 I.C.C. 300, 301. AND, REGARDLESS OF THE RECITAL IN THE BILL OF LADING RECEIPT AND THE FAILURE OF THE CARRIER TO EXERCISE ITS RIGHT OF INSPECTION THE IMPORTANT FACT IS WHAT ACTUALLY DID MOVE--- NOT WHAT WAS BILLED. EMBASSY DISTRIBUTING CO. V. WESTERN CARLOADING CO., 280 I.C.C. 229, 233; UNITED WELDING CO. V. BALTIMORE AND OHIO R., 196 I.C.C. 79; PENN FACING MILLS V. ANN ARBOR R.CO., 182 I.C.C. 614, 615; HARRIS BROS. CO. V. DIR. GEN., 60 I.C.C. 428, 430; HUBLEY MFG. CO. V. YORK MOTOR EXP., 69 M.C.C. 432.

THE QUESTION OF THE PROPER DESCRIPTION AND CLASSIFICATION OF THE COMMODITIES SHIPPED IS ONE TO BE DETERMINED ON A CONSIDERATION OF THE CHARACTERISTICS OF THE ITEMS ACTUALLY SHIPPED. THESE ITEMS WERE MANUFACTURED FOR THE ADMINISTRATIVE OFFICE ACCORDING TO SPECIFICATIONS DRAWN BY THAT OFFICE. IT WOULD APPEAR THAT THE ADMINISTRATIVE OFFICE WOULD BE BEST QUALIFIED TO MAKE THE DETERMINATION AS TO WHAT WAS SHIPPED AND IT HAS LONG BEEN THE PRACTICE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT UPON DISPUTED QUESTIONS OF FACT TO ACCEPT THE ADMINISTRATIVE REPORT AS TRUE IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY. COMP. GEN. 1105, 1106; ID. 324; 14 ID. 927, 929; AND 11 ID. 473, 476.

ACCORDINGLY, THE PARTIAL DISALLOWANCE OF YOUR CLAIM AS EXPLAINED ABOVE IS SUSTAINED.

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