61245 61246 61247 61248 Note 18-The released valuation, which shall be Note 19 Ratings and released value provisions Note 20-Ratings apply on engines and acces- 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 follows: 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 con 360 Findings of Fact tains a statement to the effect that the tariff is governed by the National Motor Freight Classification and Exceptions thereto contained in Southern Motor Carriers Rate 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: 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." 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. Findings of Fact 145 C. Cls. 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 Drayage 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 OF 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 360 Findings of Fact 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 persons 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. RATE 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 22type 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. Syllabus 145 C. Cls. 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). GEORGE STONE CLARK v. THE UNITED STATES [No. 90-58. Decided April 8, 1959. Defendant's motion to modify opinion denied May 13, 1959] ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Civilian pay; dismissal; excepted position.-In an action by plaintiff, a Federal employee having competitive status, for back pay lost because of his alleged arbitrary and capricious discharge from an excepted position in the Civil Aeronautics Administration of the Department of Commerce on the basis of charges resulting from an investigation by the International Cooperation Administration into the performance of plaintiff's duties at his post in Santiago, Chile, it is held (1) that although plaintiff's excepted position may not come within the purview of the Lloyd-La Follette Act, it is covered by the Mutual Se |