B-145255, OCT. 17, 1961

B-145255, OCT. 17, 1961

TO THE DEALERS TRANSIT, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1961, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR BILL NO. 4928-A ON WHICH YOU CLAIM REIMBURSEMENT OF THE AMOUNT OF $472 REPRESENTING A FINE OF $460 AND COURT COSTS OF $12 IMPOSED ON YOUR DRIVER BY THE MAGISTRATE COURT, BUTLER COUNTY, POPLAR BLUFF, MISSOURI, ON APRIL 28, 1959. THE FINE WAS IMPOSED FOR THE REASON THAT GOVERNMENT-OWNED FREIGHT TRAILER NO. 47320, TRANSPORTED BY YOU IN "TOW-AWAY" SERVICE UNDER GOVERNMENT BILL OF LADING NO. WY-5799398, WAS FOUND TO BE 5,250 POUNDS OVER THE WEIGHT LIMITATION PRESCRIBED BY THE LAWS OF THE STATE OF MISSOURI, APPARENTLY SECTIONS 304.180 AND 304.190, CHAPTER 304, TITLE 16, VERNON'S ANNOTATED MISSOURI STATUTES.

THE COVERING BILL OF LADING WAS ISSUED BY LT.COL. PHILIP D. BURNES, AND ACCEPTED BY YOU ON APRIL 24, 1959, FOR THE TRANSPORTATION OF "1 EA FREIGHT TRAILER EQUIPPED FOR REPAIR MILITARY INSTRUMENTS (SHOP MOBILE GENERAL PURPOSE, 12 TON, SEMI-TLR MTD SET NO. 1) USA NO. 47320," WEIGHING 24,000 POUNDS, FROM FORT POLK, LOUISIANA, TO FORT CAMPBELL, KENTUCKY. ENTERING THE STATE OF MISSOURI THE "* * * DRIVER VERNON DYKES * * * WAS STOPPED * * * FOR ROUTINE WEIGHT CHECK AND THE TRAILER WEIGHT WAS FOUND TO BE 30,780 LBS.--- OR * * * 5,250 POUNDS OVERWEIGHT.' A CITATION WAS THEN ISSUED TO THE DRIVER BY THE INSPECTING OFFICER AND THE FINE WAS SUBSEQUENTLY ASSESSED BY THE COURT AND PAID.

ON SUBMISSION OF YOUR CLAIM, BILL 4928-A, TO OUR OFFICE YOU INCLUDED, IN ADDITION TO THE DOCUMENT EVIDENCING PAYMENT OF THE FINE AND COSTS, A LETTER, DATED MAY 23, 1960, FILE TCRSW-TSD, FROM THE SOUTHWESTERN TRAFFIC REGION, MTMA, DALLAS 2, TEXAS, COVERING A DETAILED STATEMENT SIGNED BY ONE FLOYD A. KILE (DAC), WHO SIGNED THE BILL OF LADING IN THE PLACE DESIGNATED FOR THE ,SIGNATURE OF ISSUING OFFICER.' THIS STATEMENT IS AS FOLLOWS:

,I, FLOYD A. KILE, DO CERTIFY THAT I AM FAMILIAR WITH CASE OF OF SHIPMENT OF ONE (1) EACH SHOP, MOBILE, GENERAL PURPOSE WHICH WAS SHIPPED FROM THIS STATION ON GOVERNMENT BILL OF LADING WY-5799398 ISSUED 24 APRIL 1959 WITH PROPERTY BELONGING TO 61ST ENGINEER DETACHMENT BEING TRANSFERRED TO FORT CAMPBELL, KENTUCKY BY MOVEMENT ORDER 13, HEADQUARTERS FORT POLK, FORT POLK, LOUISIANA, DATED 15 APRIL 1959.

"THE SHOP, MOBILE, GENERAL PURPOSE MOUNTED ON SEMI-TRAILER ACTUALLY WEIGHED 24,000 POUNDS WITH INSTALLED EQUIPMENT. TRAFFIC DATA PLATE ON EQUIPMENT AND TECHNICAL MANUAL BOTH INDICATED SAME WEIGHT.

"LETTER ORDER 4-130, COPY ATTACHED, INDICATES TWO (2) MILITARY PERSONNEL WERE DISPATCHED TO POPULAR (SIC) BLUFF, MISSOURI TO INVESTIGATE WEIGHT LIMITATIONS. IT WAS FOUND THAT APPROXIMATELY 6,000 POUNDS OF ACETYLENE CYLINDERS, WELDING RODS AND STEEL, WHICH WERE NOT PART OF TRAILER, HAD BEEN LOADED INSIDE OF SHOP TRAILER BY UNIT RESPONSIBLE FOR SHIPMENT. NEITHER HAD SAME BEEN REPORTED TO THE TRANSPORTATION OFFICER PRIOR TO SHIPMENT.'

SECTIONS 304.180 AND 304.190 OF THE MISSOURI STATUTES, 16 VERNON'S ANNOTATED MISSOURI STATUTES 304.180 AND 304.190, PROHIBIT OPERATION OF OVERWEIGHT VEHICLES, AND SECTION 304.240 PENALIZES ANYONE WHO DOES OPERATE A VEHICLE IN VIOLATION OF THE WEIGHT REGULATIONS. IT IS THE CARRIER, HOWEVER, THROUGH THE AGENCY OF ITS DRIVER, AND NOT THE SHIPPER, WHO OPERATES THE VEHICLE. THE FINE WAS THEREFORE ASSESSED AGAINST AND BECAME THE LIABILITY OF DEALERS TRANSIT, INC. CF. 31 COMP. GEN. 246. A SHIPPER IS NOT MADE LIABLE FOR THE FINE BY A MISSTATEMENT OF THE WEIGHT ON THE BILL OF LADING. SEE HANNA V. PITT AND SCOTT, LTD., 106 N.Y.S. 145. NEITHER, IN THE ABSENCE OF AN EXPRESS AGREEMENT, IS AN AGENT ENTITLED TO BE REIMBURSED FOR FINES LEVIED AGAINST HIM IN THE PERFORMANCE OF THE AGENCY. SEE MILLS NOVELTY CO. V. DUPOUY, 203 FED. 254.

THE BILL OF LADING AND FILED TARIFFS OF THE CARRIER CONTAIN THE CONTRACT OF CARRIAGE, AND AS INDICATED IN THE SETTLEMENT CERTIFICATE OF JUNE 29, 1961, WHILE ITEM 105, NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION TARIFF NO. 83-E, MF-I.C.C. 375, EXPRESSLY PROVIDES FOR ACCEPTANCE BY THE CARRIER OF VEHICLES WITH DIMENSIONS OR WEIGHTS CONFLICTING WITH LAWS OR REGULATIONS OF STATES THROUGH WHICH SHIPMENTS MUST TRAVEL ONLY UPON SPECIAL PERMITS BEING SECURED AND UNDER THOSE PROVISIONS THE PRESENT SHIPMENT OUGHT NOT, PERHAPS, TO HAVE BEEN ACCEPTED, THERE IS NO PROVISION IN EITHER THE BILL OF LADING OR TARIFF PROVIDING FOR PAYMENT BY THE SHIPPER OR REIMBURSEMENT FOR PAYMENT BY THE CARRIER OF FINES LEVIED AGAINST THE CARRIER BECAUSE OF EXCESSIVE WEIGHT. BY SECTION 217 (B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 317 (B), A CARRIER BY MOTOR VEHICLE IS PROHIBITED FROM CHARGING, DEMANDING, COLLECTING OR RECEIVING A GREATER OR LESS OR DIFFERENT AMOUNT THAN THE CHARGES SET FORTH IN ITS TARIFF FOR THE SERVICE PERFORMED. T. AND M. TRANSPORTATION CO. V. SHATTUCK CHEMICAL CO., 158 F.2D 909, 910; AND FEDDERS-QUIGAN CORP. V. LONG TRANSPORTATION CO., 64 M.C.C. 581, 587.

ACCORDINGLY, AND WHILE UNDER THE CIRCUMSTANCES THE INADVERTENT MISSTATEMENT ON THE BILL OF LADING OF THE WEIGHT OF THE SHIPMENT BY THE DEPARTMENT OF THE ARMY IS REGRETTED, THE DISALLOWANCE OF YOUR CLAIM FOR THE AMOUNT OF THE FINE WAS CORRECT AND MUST BE SUSTAINED.