B-160401, JUN. 21, 1968

B-160401, JUN. 21, 1968

TO NAVAJO FREIGHT LINES, INC.:

WE AGAIN REFER TO YOUR LETTER OF MARCH 4, 1968, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF AUGUST 18, 1967, B-160401, SUSTAINING THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN ITS AUDIT OF CERTAIN FREIGHT CHARGES COLLECTED BY NAVAJO FREIGHT LINES ON SEVERAL SHIPMENTS OF GOVERNMENT PROPERTY.

THE INVOLVED TARIFF PROVISIONS AND APPLICABLE LAW APPEAR TO BE AMPLY STATED IN OUR DECISION, THE ONLY NEW POINT RAISED IN YOUR LETTER OF MARCH 4, 1968, BEING YOUR CONTENTION THAT OUR INTERPRETATION "* * * WOULD RENDER MEANINGLESS THE TARIFF PROVISIONS DISCUSSED.'

OUR INTERPRETATION, ON THE CONTRARY, IN OUR VIEW, GIVES EFFECT TO ALL OF THE PROVISIONS, SINCE ITEM 370 WOULD APPLY ON SINGLE LINEHAULS BY CARRIERS, THE SYMBOLS OF WHICH ARE SHOWN IN NOTE 3/1) (LATER 4/1) ( AND ON JOINT LINE-HAULS BY PARTICIPATING CARRIERS WHERE CARRIER N661 (LATER C3800) TAKES PART IN THE MOVEMENT IN ACCORDANCE WITH THE PROVISIONS OF NOTE 3/2) (LATER 4/2) ). IF, AS YOU CONTEND, ITEM 370 APPLIES TO A JOINT LINE MOVEMENT IN WHICH ONE OR MORE OF THE CARRIERS REFERRED TO IN NOTE 3/1) PARTICIPATE, THE PROVISIONS OF NOTE 3/2) ARE RENDERED LARGELY MEANINGLESS, AND A CONSTRUCTION WHICH HAS SUCH AN EFFECT IS TO BE AVOIDED IN FAVOR OF A CONSTRUCTION WHICH GIVES EFFECT TO ALL OF THE PROVISIONS. UNITED STATES V. MISSOURI PACIFIC R. ., 250 F.2D 805, 807 (1958); A.E. WEST PETROLEUM CO. V. A. T. AND S. F. RY., 212 F.2D 812, 816, 821 (1954); UPDIKE GRAIN CORP. V. ST. L. AND S. R. RY., 52 F.2D 94 (1931). SEE ALSO, SCRAP TIN PLATE BETWEEN MINN. AND ILL., 256 I.C.C. 15, 19 (1943); CALIFORNIA MILLING CORP. V. LOS ANGELES AND S. L. R. CO., 203 I.C.C. 578, 580 (1934); PENNEY CO. V. CLEVELAND C., C. AND ST. L. RY. CO., 152 I.C.C. 199, 201 (1929).

IN B-160401 DATED AUGUST 18, 1967, WE INDICATED THAT THE JOINT THROUGH RATES UNDER WHICH THESE SHIPMENTS MOVED WERE ONE FACTOR RATES FROM ORIGIN TO DESTINATION AND WERE NOT DIVISIBLE INTO SEPARATE RATE FACTORS WITH EACH FACTOR APPLYING OVER THE LINES OF ONE OF THE INDIVIDUAL CARRIERS INVOLVED IN THE MOVEMENT AND PROVIDING A BASIS FOR THE COMPUTATION OF THE PORTION OF THE THROUGH CHARGE ACCRUING TO THAT PARTICULAR CARRIER FOR ITS PROPORTIONATE PART OF ITS ENTIRE SERVICE. THE MINIMUM CHARGE FOR CAPACITY LOAD, APPLICABLE ONLY VIA GENERAL EXPRESSWAYS, INC., CANNOT BE APPLIED TO THE JOINT SINGLE FACTOR THROUGH RATES WITHOUT AFFECTING THE DESTINATION CARRIER BY REQUIRING THE LATTER TO PERFORM ITS SERVICE UNDER A BASIS OTHER THAN THAT NAMED FOR ITS ACCOUNT IN THE REGULARLY PUBLISHED AND FILED TARIFFS. HOW THEN DOES ITEM 370 APPLY, IF AT ALL, TO A JOINT MOVEMENT? THE ANSWER APPEARS TO BE SUPPLIED IN NOTE 3/2). ITEM 370 APPLIES TO THE THROUGH MOVEMENT "WHEN A SHIPMENT MOVES IN A JOINT LINE MOVEMENT VIA TWO OR MORE CARRIERS * * * WHEN CARRIER N661 (C3800) PARTICIPATES IN THE JOINT LINE MOVEMENT.' CARRIER N661 (C3800) DID NOT PARTICIPATE IN THE PRESENT JOINT LINE SHIPMENTS.

ACCORDINGLY, WE BELIEVE IN THE PRESENT CIRCUMSTANCES THAT ITEM 370 OF TARIFF NO. 3-E IS INAPPLICABLE TO THE SHIPMENTS. IN ANY EVENT, IF THE TARIFF PROVISIONS ARE AMBIGUOUS, SUCH AMBIGUITY MUST BE RESOLVED IN FAVOR OF THE SHIPPER. THE AUDIT ACTIONS REFERRED TO ARE ACCORDINGLY AGAIN SUSTAINED.