B-180363, JUL 5, 1974, 54 COMP GEN 14

B-180363, JUL 5, 1974, 54 COMP GEN 14

TRANSPORTATION - ROUTES - APPLICABLE TARIFF RATES - LONGER V. SHORTER ROUTE WHERE TARIFF PROVIDES THAT IF TRANSPORTATION CHARGES FOR LONGER ROUTE ARE LESS THAN CHARGES FOR SHORTER ROUTE BECAUSE OF AVOIDANCE OF BRIDGE, FERRY, OR TUNNEL CHARGES, THEN CHARGES FOR LONGER ROUTE APPLY NOTWITHSTANDING THE FACT THAT GOVERNMENT DID NOT REQUEST LONGER ROUTE.

IN THE MATTER OF TRANS COUNTRY VAN LINES, INC., JULY 5, 1974:

TRANS COUNTRY VAN LINES, INC. REQUESTS REVIEW OF THE SETTLEMENT CERTIFICATE WHICH DISALLOWED ITS CLAIM FOR ADDITIONAL TRANSPORTATION CHARGES ON A SHIPMENT TRANSPORTED UNDER GOVERNMENT BILL OF LADING E 6227250 BY TRANS COUNTRY VAN LINES, INC. FROM FORT EUSTIS, VIRGINIA, TO CAMP DRUM, WATERTOWN, NEW YORK.

THE SHIPMENT HERE CONSISTED OF STEEL DESKS AND TABLES WEIGHING 14,810 POUNDS. THE SHIPMENT WAS UNROUTED AND THE RECORD DOES NOT INDICATE THAT THE SHIPPER ISSUED ANY ROUTING INSTRUCTIONS. THE CARRIER ORIGINALLY BILLED AND WAS PAID $657.90 BASED ON A RATE OF $2.64 PER 100 POUNDS AT A MINIMUM WEIGHT OF 21,000 POUNDS, EQUALLING $554.40, PLUS A SHIPMENT CHARGE OF $30, PLUS A BRIDGE AND TUNNEL CHARGE OF $0.35 PER 100 POUNDS, EQUALLING $73.50. THE CHARGE OF $2.64 WAS BASED ON MILEAGE NOT EXCEEDING 600 MILES.

ON AUDIT, CHARGES WERE RECOMPUTED BASED ON A DISTANCE OF 619 MILES AND A ROUTING WHICH AVOIDED ANY BRIDGE, FERRY, OR TUNNEL CHARGES. FOR THIS MILEAGE, THE RATE WAS $2.74 PER 100 POUNDS AND CHARGES WERE COMPUTED ON A MINIMUM WEIGHT OF 21,000 POUNDS, EQUALLING $575.40, PLUS A SHIPMENT CHARGE OF $30. THIS RESULTED IN TOTAL CHARGES OF $605.40 AND A NOTICE OF OVERCHARGE WAS ISSUED FOR $52.50 WHICH WAS SET OFF AGAINST FUNDS OTHERWISE DUE THE CARRIER.

THE MOVERS' AND WAREHOUSEMEN'S ASSOCIATION OF AMERICA, INC. (MWAA), GOVERNMENT RATE TENDER ICC NO. 1-W, ITEM 290, NOTE 4 PROVIDES:

WHEN A LOWER CHARGE RESULTS FROM COMPUTING MILEAGE VIA A LONGER ROUTE (ELIMINATING THE USE OF BRIDGE, FERRY OR TUNNEL SERVICE) THAN THE SHORTEST PRACTICAL ROUTE, SUCH LOWER CHARGE WILL BE ASSESSED.

THIS NOTE WAS THE BASIS OF THE AUDIT ACTION.

THE CARRIER DISAGREES WITH THE AUDITOR'S INTERPRETATION OF THE TENDER. THE CARRIER ASSERTS THAT NOTE 4 OF ITEM 290 REFERS TO ACTUAL USE AND NOT CLERICAL COMPUTATIONS AND CONTENDS THAT NOTE 4 MUST BE READ IN CONJUNCTION WITH TRANS COUNTRY'S PUBLISHED TARIFF. IN SUPPORT, THE CARRIER QUOTES RULE 2(C) OF MWAA TARIFF NO. 65, MF-I.C.C. NO. 92:

IF THE SHIPPER REQUESTS A LONGER ROUTE THAN THE SHORTEST PRACTICAL ROUTE AS SHOWN IN THE (MILEAGE GUIDE), THE MILEAGE OVER THE LONGER ROUTE, AS SHOWN THEREIN, SHALL APPLY.

IT IS APPARENTLY THE CARRIER'S BELIEF THAT FOR THE LOWER CHARGES TO APPLY IN THIS CASE, IT WOULD HAVE BEEN NECESSARY FOR THE GOVERNMENT TO HAVE REQUESTED THE LONGER ROUTE. SINCE NO REQUEST WAS MADE, THE CARRIER ARGUES, THE CHARGES SHOULD BE BASED ON THE ACTUAL ROUTE.

BOTH RULE 2(C) AND NOTE 4 PROVIDE EXCEPTIONS TO THE GENERAL RULE THAT THE SHORTEST DISTANCE IS USED IN COMPUTING THE CHARGES. BUT THE CARRIER'S INTERPRETATION MAKES NOTE 4 SUPERFLUOUS. IF THE SHIPPER HAD TO REQUEST THE LONGER ROUTE IN ORDER TO OBTAIN THE LOWER CHARGES, RULE 2(C) WOULD HAVE BEEN SUFFICIENT BY ITSELF.

IT IS APPARENT FROM THE TWO PROVISIONS THAT A DISTINCTION WAS INTENDED. RULE 2(C) COVERS THE CASE WHERE THE SHIPPER FOR HIS OWN REASONS REQUIRES A SPECIFIC ROUTE AND THE RULE REQUIRES THE SHIPPER TO PAY FOR THE LONGER ROUTE. BUT NOTE 4 COVERS THE CASE WHERE THE STANDARD PRESUMPTION - THE SHORTEST ROUTE EQUALS THE LOWEST CHARGES - DOES NOT APPLY. THE NOTE PRESERVES THE SHIPPER'S RIGHT TO THE LOWEST CHARGE. NOTHING IN NOTE 4 INDICATES THAT THE SHIPPER MUST REQUEST THE LONGER ROUTE. IT IS PRESUMED IN NOTE 4 AND CONFIRMED BY RULE 2(C) THAT THE SHIPPER WANTS TO INCUR THE LOWEST CHARGES UNLESS OTHERWISE SPECIFIED.

THE DISTINCTION BETWEEN ACTUAL MILEAGE AND CLERICAL COMPUTATION SUGGESTED BY THE CARRIER IS MEANINGLESS. NOTE 4 REQUIRES TWO OR MORE COMPUTATIONS OF CHARGES AND A SELECTION OF THE LOWEST TOTAL CHARGE. THE ACTUAL MILEAGE DRIVEN BY THE CARRIER BY HIS OWN CHOICE IS IRRELEVANT. IT IS OUR VIEW THAT, REGARDLESS OF THE ROUTE EMPLOYED BY THE CARRIER, THE SHIPPER IS ENTITLED TO HAVE THE CHARGES BASED OVER WHATEVER RESULTS IN THE LOWER CHARGE.

ACCORDINGLY, THE DISALLOWANCE OF THE CLAIM OF TRANS COUNTRY VAN LINES IS SUSTAINED.