
    BENTON RAPID EXPRESS, INCORPORATED v. THE UNITED STATES
    [No. 217-54.
    Decided April 8, 1959]
    
      
      Mr. Julian C. Sipple for the plaintiff. Messrs. Lawton,. O'Donnelly Sipple db Findley were on the brief.
    
      Mr. Gurtis L. Wagner, Jr., with whom was Mr. Assistant Attorney General George Goehr an Doub, for the defendant.,
   Jones, Chief Judge,

delivered the opinion of the court r

This is a suit for additional charges for the transportation by motor truck of a number of shipments of internal combustion engines between Air Force bases in Georgia. The-shipments were between the Robins Air Force Base at Warner Robins, Georgia, and the Chatham and Hunter Field Air Force bases, both of the latter being located at Savannah,. Georgia.

Each bill of lading contained the following notation:

Released at full valuation. Lowest rating per Item-61244, National Motor Freight Classification No. 10 applicable.

The reverse side of each bill of lading contained the following condition under the caption “General Conditions and Instructions

It is mutually agreed and understood between the United States and carriers who are parties to this bill of lading that
# * * # *
5. This shipment is made at the restricted or limited valuation specified in the tariff or classification at or under which the lowest rate is available, unless otherwise indicated on the face hereof.

Findings 5 and 6 set out the provisions of National Motor Freight Classification No. 10 which were in effect on motor shipments in Georgia during the period of these shipments. The rules issued by the Georgia Public Service Commission in respect to motor freight rates were in effect during that period. Pertinent parts of these rules are set out in finding 12.

It is plaintiff’s contention that it is entitled to the rate prescribed by the Georgia Public Service Commission; that that valuation governed the rate and that since the articles were released at full valuation it is entitled to the rate thus prescribed unless there was a definite agreement for a lower rate, which it denies.

The defendant takes the position (1) that the second sentence quoted above indicated a lower item rate than would have been applicable otherwise, and (2) that the railway rates were less than motor rates at that time and that pursuant to an order by the Chief of Transportation there was a definite understanding between the parties that the lower rates would apply; that otherwise the shipments would have gone by rail.

Thus there are two issues, first, the interpretation of the language on the bills of lading and, second, the factual issue as to whether there was an understanding or agreement for the lower rate to conform to the rail competition. The two issues are interwoven.

The notation found on the face of each bill of lading was placed there pursuant to an order dated March 4,1949, issued ■■by tbs Chief of the Transportation Division, Office of the Deputy Chief of Staff and sent to all the major Air Commands in the Zone of Interior. The order reads as follows:

Reference shipments of airplane engines via commercial motor freight. Released valuation items not suspended by Interstate Commerce Commission. Motor freight transportation of internal combustion engines now considered premium transportation and will not originally be used unless carrier agrees to and transportation officers insert following notation on bills of lading: “Released at full valuation. Lowest rating per Item 61244, Supplement 21, National Motor Freight Classification No. 9, applicable.” When internal combustion engines must move by motor freight and carrier will not agree to above notation, the following notation will be placed on bills of lading: “Lowest rate to apply per condition No. 5 this bill of lading.”

The above order was issued as a result of conferences with "many of the motor carriers. These carriers desired to regain the business of transporting the airplane engines which had been diverted to the railroads as a result of the amendment to the National Motor Freight Classification which set up the charges on the basis of the released valuation. The rail tariffs were not based on released valuation.

All the shipping points involved in this case were served "by railroads. The railroad rate for transportation was less than the amendment provided in the Motor Freight Classification.

In their effort to get the business of transporting the engines, many of the motor carriers had given the Government specific section 22-type quotations, or had reduced rate tenders covering the transportation of these engines. The wording to be placed on the bills of lading was devised in a conference with many of the motor carriers to cover those carriers who had not given specific quotations on the engines. There was no evidence as to whether plaintiff was present at any of these conferences.

There is not the slightest doubt that if these shipments had been made with the simple notation on the bills of lading “released at full valuation” and there had been no qualification of this statement on the bills of lading and no agreement orally or in writing that a lower rate should apply, the plaintiff would be entitled to recover the sum for which it sues. On the other hand, if the notation on the bills of lading is construed as a limitation on the rates to be charged or if an agreement by the representatives of the respective-litigants that a lower rate should apply is found to have been made, then the position taken by the defendant should be-sustained.

To reach a proper conclusion we must interpret the meaning of the notation on the bills of lading and if the meaning' of the notation is not clear we must determine whether or not there was an agreement between the respective litigants; to have the lower rates made applicable to the shipments in question. If the notation on the bills of lading made-, the application of the lower rate perfectly clear it would, not be necessary to go into the question of whether an oral' or written agreement for a lower rate was made. However,, there has been an extended dispute between the parties as. to the exact meaning of the notation on the bills of lading.True, it could have been stated with greater clarity. But. if it had been made crystal clear there would have been no-lawsuit. As a consequence we have gone into the entire-record to determine whether the notation taken in connection with the evidence as to an agreement served to clarify the-entire situation.

At the threshold we are met with the undisputed fact that the railroad rates were less than motor rates if those motor-rates were based on full valuation. It would seem strange-that the defendant, in spite of the order that had been issued and in spite of the agreements by other motor carriers to-apply lower rates to other shipments, would nevertheless, agree to pay plaintiff a higher rate for the transportation between the points involved when substantially lower rates; were available through the railroads which served the same points.

In looking at the notations on the bills of lading it will be. observed that immediately following the statement of release-at full valuation is a sentence to the effect that the lowest rating per item in Motor Freight Classification No. 10 is applicable. Then in section 5 of the notation on the reverse side of the bills of lading is found the statement to the effect that the shipment was made at or under a classification which made the lowest rate available unless otherwise indicated on the face of the bills of lading. We are inclined to construe the bills of lading themselves as thus indicating that the lowest rate should be applicable, otherwise the second sentence would be without meaning and the provisions of section 5 would be largely without meaning.

On the question of whether there was an agreement, defendant’s witness, Lt. Col. Douglass Symington, the Chief of Transportation of the Air Force at Savannah, Georgia, testified that prior to the shipments involved in this case he was interviewed by E. J. Benton, Sr., president of the plaintiff company, at which time he advised Mr. Benton, Sr., of defendant’s requirement that the legend set out in finding 3 should appear on the bills of lading to provide for transportation at the minimum rate. It is conceded by the plaintiff that its president, Mr. Benton, was clothed with the authority to make section 22 quotations binding on the company. At the time of the trial of this case and the taking of the testimony Mr. Benton, Sr., was too ill to travel to Washington to give his testimony, and unfortunately he died before the time ■set for the taking of his testimony in Savannah, Georgia.

A section 22-type quotation of reduced rate tender need not be in any particular form but can be on the bills of lading, ■slips of paper, verbally or in any other form so long as it is understood between the parties that the rates to be charged are less than those applicable under tariff arrangements.

An effort was made on the part of the plaintiff to establish the fact that ho agreement for the lower rates provided under section 22 had been made. Mr. Benton, Jr., testified that if there had been any such agreement he would have known it. However, apparently he did not know positively whether such an agreement had been made by his father. The best he ■could testify was that if there had been such an agreement he would have known it.

On the other hand, Col. Symington testified positively that he told Mr. Benton, Sr., it would be necessary in order for him to get the business that he agree to the placing of the notation “Released at full valuation. Lowest rate to apply”, and that if he would not accept this Air Force requirement the business could not be given to the plaintiff. It would have been necessary to ship the articles by rail or other means.. When we consider the notations on the bills of lading and place alongside them the testimony, positive in character,, that there was an agreement between the parties that the-lower rates should apply; when we consider the further fact that the lower rates by rail were available between the same-shipping points, and that the authorities under the Chief' of Staff had issued an order that as a condition to shipment by motor carrier the lower rates must apply, otherwise the-articles would go by rail; and when we further consider the fact that if Col. Symington had not insisted on such an agreement he would have been violating the orders issued by the chief transportation officer, we are unable to reach any other reasonable conclusion than that there was such an agreement that the lower rates as provided by section 22 should be applicable. When the entire record is considered, any doubt that the notations on the bills of lading themselves-were meant to make the lower rates applicable disappears.

There is no doubt that plaintiff’s president had authority" to agree to give the United States the lower section 22-type-quotation on Georgia intrastate traffic during the period these shipments moved, and that this could be done at that time without prior approval of the Georgia Public Service Commission. In other words, a lower than the regular rate could be made applicable by agreement. This issue was settled in the case of Public Utilities Commission of California v. United States, 355 U.S. 534.

In the light of the entire record the position of the defendant is sustained. It is conceded that plaintiff is entitled, to recover the sum of $68.77, and judgment will be rendered in favor of plaintiff for that amount.

It is so ordered.

Maris, Circuit Judge {Ret.), sitting by designation; Lara-more, Judge; MaddeN, Judge, and Whitaker, Judge, concur,

EINDINGS OE FACT

The court, having considered the evidence, the briefs and argument of counsel, and the report of Trial Commissioner Currell Vance, makes the following findings of fact:

1. Plaintiff is a corporation organized and existing under the laws of the State of Georgia, and now is and was, during all times hereinafter mentioned, engaged as a common carrier by motor truck of property for hire in interstate and intrastate commerce.

2. During the period September 13,1949, to and including March 31, 1951, plaintiff transported for defendant on Government bills of lading numerous shipments of internal combustion engines between Robins Air Force Base, Warner-Robins, Georgia, and Chatham Air Force Base and Hunter Field Air Force Base, both at Savannah. Georgia. One shipment originated at Army Depot, Georgia, and was consigned to Savannah, Georgia, and two shipments originated at Eanes, Georgia and were consigned to Warner Robins,. Georgia.

3. Each of the bills of lading contained the notation :

Released at full valuation. Lowest rating per Item 61244, National Motor Freight Classification No. 16 applicable.

The reverse side of each bill of lading contained the following condition under the caption “General Conditions and Instructions

It is mutually agreed and understood between the-United States and carriers who are parties to this bill of lading that
*****
5. This shipment is made at the restricted or limited valuation specified in the tariff or classification at or-under which the lowest rate is available, unless otherwise indicated on the face hereof.

4. Plaintiff contends that it is entitled to the highest rating-set forth in Item 61247 of National Motor Freight Classification No. 10 inasmuch as the engines were released to the carrier at the full valuation, whereas defendant contends-that the applicable rating on the truckload shipments is: the lowest rating set forth in Item 61244 on the theory that the notation on each bill of lading constituted a reduced rate tender by the carrier under section 22 of the Interstate-Commerce Act, 49 U. S. C. section 22, and that the applicable rating on the less than truckload shipments is that; set forth in Item 61250 of Southern Motor Carriers Bate Conference Tariff No. 3-E.

5. National Motor Freight Classification No. 10 and supplements thereto were in effect on Georgia shipments by motor vehicle during the time of these shipments and provided as follows:

RULE 13
A shipment, definition of—
Seo. 1. A shipment is a lot of freight received from one shipper, at one point at one time, for one consignee at one destination and covered by one bill of lading.
LTL, AQ, Vol. or TL ratings
Sec. 2. (a) A “Volume” rating is a rating in connection with which “Vol., Min. Wt.” is provided. _
_ (b) A “Less than Truckload” (LTL) rating is a rating other than a “Volume” or “Truckload” rating applying on an article for which a “Volume” or “Truckload” rating is provided herein.
(c) An “Any Quantity” (AQ) rating is a rating applying on an article for which no “Vol. or TL Min. Wt.” is provided herein.
(d) The “Less than Truckload” ratings cover shipments in quantities less than the minimum weight specified for volume or truckload shipments, subject to section 5 of this rule. An any quantity rating will apply regardless of the weight of the shipment.
(e) Except as otherwise provided, a “Truckload” rating is a rating in connection with which “Min. Wt. Factor” is provided.
VoTmne or truchload shipment
Seo. 3. (a) Volume or truckload ratings or rates apply only when a volume or truckload of freight is shipped from one point (or places within plant of one shipper) in one day by one shipper, “on one bill of lading,” for delivery to one consignee at one destination. When a Volume or Truckload Bating is used charges will be assessed at the volume or truckload minimum weight shown herein, except that actual weight will apply when in excess of the volume or truckload minimum weight.
Mixed, volume or mixed truehload shipment
(b) Unless otherwise provided, when a number of different articles, for which volume or truckload ratings or rates are provided when in straight volume or truckload shipments, are shipped at one time by one consignor to one consignee and destination, on one bill of lading as a mixed volume or a mixed truckload shipment, the entire shipment will be charged at the highest straight volume or truckload rate and subject to the highest straight volume or truckload minimum weight that would be applicable to any article in the shipment if that quantity of each article in the mixed shipment were tendered as a straight volume or straight truckload shipment; however, when the aggregate charge upon the entire shipment is less on basis of volume or truckload rate and volume or truckload minimum weight (or actual or authorized estimated weight if in excess of the volume or truckload minimum weight) for one or more of the articles and on the basis of less than truckload or any quantity rate or rates on the actual or authorized estimated weight of the other article or articles, the shipment will be charged for accordingly.
Dividing volume or truehload shipments
Seo. 4. Subject to the provisions of Section 3 (b), the aggregate charge upon the entire shipment is made lower by considering the articles as if they were divided into two or more separate shipments subject to other than LTL or AQ ratings, the shipment will be charged for accordingly.
LTL not exceed vol. or TL charge
Sec. 5. The charge for a shipment moving under Less than Truck Load ratings shall not exceed the charge applicable to the same shipment under the volume or Truckload Ratings at the volume or truckload minimum weight specified. ...

6. Southern Motor Carriers Rate Conference Tariff No. 3-E is an exceptions tariff and was in effect on Georgia shipments by motor vehicle during the time of these shipments and provided as f ollows:

7. The tariffs setting, forth the charges based on the ratings contained in National Motor Freight Classification No. 10 ■and Southern Motor Carriers Rate Conference Tariff No. 3-E are Georgia Intrastate Tariff Supplement 76 to GPSC MF No. 1, Georgia Intrastate Tariff Supplement 90 to GPSC MF No. 1, Georgia Intrastate Tariff Supplement 93 to GPSC MF No. 1, and Georgia Intrastate Tariff GPSC MF No. 1. The title page of each of the above tariffs contains a statement to the effect that the tariff is governed by the National Motor Freight Classification and Exceptions thereto contained in Southern Motor Carriers Bate Conference Tariff No. 3-E.

8. The notation appearing on the face of each bill of lading in this case was inserted pursuant to an order, dated March 4, 1949, issued by the Chief of the Transportation Division, Office of the Deputy Chief of Staff, Materiel, and sent to all major Air Commands in the Zone of Interior, which reads as follows:

_ Deference shipments of airplane engines via commercial motor freight. Released valuation items not suspended by Interstate Commerce Commission. Motor freight transportation of internal combustion engines now considered premium transportation and will not originally be used unless carrier agrees to and transportation officers insert following notation on bills of lading: “Released at full valuation. Lowest rating per Item 61244, Supplement 21, National Motor Freight Classification No. 9, applicable.” When internal combustion engines must move by motor freight and carrier will not agree to above notation, the following notation will be placed on bills of lading: “Lowest rate to apply per condition No. 5 this bill of lading.”

9. The March 4, 1949 Order of the Chief of the Transportation Division, Office of the Deputy Chief of Staff, Materiel, was issued as a result of conferences with many of the motor carriers who desired to regain the business of transporting the airplane engines which had been diverted to the railroads as a result of the amendment to the National Motor Freight Classification setting up the charges on the basis of the released valuation. The rail tariffs were not based on released valuation. In order to get the business of transporting the engines many of the motor carriers gave the Government specific section 22-type quotations or reduced rate tenders covering the engines. The wording of the notation required by the order of March 4, 1949, to be placed on the bills of lading was devised in a conference with many of the motor carriers to cover those carriers who had not given specific quotations on the engines. There was no evidence that plaintiff herein was present at any of the conferences.

10. Defendant’s witness Lt. Col. Douglass Symington, Chief of Transportation, Headquarters 8th Air Force, Savannah, Georgia, testified that prior to the shipments involved in this case he was interviewed by Mr. E. J. Benton, Sr., president of Benton Rapid Express, Inc., at which time he advised Mr. Benton of defendant’s requirement that the legend set out hereinabove in finding 3, would appear on the bills of lading, to provide for transportation at the minimum rate. Mr. Benton, the president of plaintiff company, and clothed with authority to make section 22 quotations binding on the company, was nevertheless chiefly engaged in the conduct of another company, Benton Brothers Dray-age and Storage Company, and apparently advised no one in authority in plaintiff company of this interview. At the time of the trial of this case Mr. Benton, Sr. was too ill to travel to Washington to give his testimony, and unfortunately died before the time set for the taking of his testimony in Savannah, Georgia.

11. Robins Air Force Base, Chatham Air Force Base, and Hunter Field Air Force Base all had railroad facilities.

12. The Georgia Public Service Commission promulgated rules governing the transportation of freight by motor carrier within the State of Georgia. The following rules were in effect during the period of the shipments in this case:

SUSPENSION OP RULES
Rule 3
The Commission may suspend or modify at its discretion, the enforcement of any of its rules, rates, orders or other regulations where, in its opinion, the conditions are such, in any particular instance, that a strict enforcement of such rules or other regulations would not be in the public interest.
RATES AND CHARGES
Rule 5
(a) No motor carrier operating under certificates Classes “A” and “B” shall charge, demand, collect or receive a greater or less or different compensation for the transportation of passengers or property, or for any service rendered in connection therewith, than the rates, fares and charges prescribed or approved by order of the Commission; nor shall any motor carrier unjustly disciminate against any person in its rates, fares, charges or service, but the Commission will prescribe by general order to what persone motor carriers may issue passes or free transportation and reduced rates for special occasions. Nor shall any such carrier refund or remit in any manner or by any device any portion of the rates, fares or charges prescribed or approved by the Commission or extend to any person, firm, co-partnership or corporation or other organization or association, privileges or facilities in the transportation of persons or property, except such as are regularly and uniformly extended to all.
❖ * * * #
HATE SCHEDULES
Rule 9
(a) All schedules of rates, fares and charges for the transportation of persons or property charged by motor carriers operating under certificates Classes “A” and “B” shall be the rates, fares and charges approved or prescribed by the Commission.
(b) All freight and passenger classifications, rules, regulations and schedules, and any and all facilities, privileges or services, shall be the freight and passenger classifications, rules, regulations, schedules, facilities, privileges or services which are approved or prescribed by the Commission.
* * # * *

13. Prior to March 11,1954, there was no official directive requiring that section 22-type quotations or reduced rate tenders be filed with or approved by the Georgia Public Service Commission. However, at a hearing held by the Georgia Public Service Commission on March 23, 1949, an informal agreement was made to the effect that all section 22-type quotations would be filed in the future with the Commission for inspection, examination, and possible rejection.

No such section 22-type quotation, covering shipments involved in this case, was filed by plaintiff with the Commission. However, if such quotation had been filed it would undoubtedly have been approved, since similar quotations in other cases had been accepted by the Commission.

14. A section 22-type quotation or reduced rate tender does not have to be given in any particular form, but can be on the bills of lading, slips of paper, verbally, or in any other way so long as it is understood between the parties that the rates to be charged are less than those applicable under tariff arrangements. It does, however, have to be filed with the Commission for approval or rejection.

15. At the hearing held in this case on March 12, 1956, in Washington, D. C., plaintiff voluntarily dismissed paragraph 7 of its petition. This reduced the amount of plaintiff’s claim by $182.16.

16. If the freight rules applicable to the shipments in. issue are those contended by plaintiff, plaintiff is entitled to recover $7,146.29.

17. If the freight rates applicable to the shipments in issue are those contended by defendant, plaintiff is entitled to recover $68.77.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover of and from the United States sixty-eight dollars and seventy-seven cents ($68.77). 
      
       Under the Interstate Commerce Act, 49 U.S.C. § 22.
     