B-149020, NOV. 26, 1962

B-149020, NOV. 26, 1962

TO GENERAL EXPRESSWAYS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1962, REQUESTING REVIEW OF OUR SETTLEMENT CERTIFICATE OF FEBRUARY 5, 1962, WHICH DISALLOWED YOUR CLAIM (GEX NO. E-4236) FOR $120.71, YOUR BILL NO. 475-6-A, AS AN ADDITIONAL ALLOWANCE FOR FREIGHT TRANSPORTATION FURNISHED THE DEPARTMENT OF THE AIR FORCE UNDER GOVERNMENT BILL OF LADING NO. AF 9661916, DATED MAY 5, 1959.

THE RECORD SHOWS THAT FOR THE SERVICE INVOLVED YOU ORIGINALLY BILLED AND WERE PAID $278 ON VOUCHER NO. 138480 IN THE SEPTEMBER 1959 ACCOUNT OF DISBURSING OFFICER GEORGE H. SECKINGER. YOUR BILLING WAS ON THE BASIS OF A RATE OF $1.39 APPLIED TO 20,000 POUNDS. WHEN THE PAYMENT VOUCHER WAS AUDITED BY OUR TRANSPORTATION DIVISION, THE APPLICABLE CHARGES WERE DETERMINED TO BE $157.29, COMPUTED ON THE BASIS OF A LESS THAN-TRUCKLOAD RATE (CLASS 85) OF $2.14 PER 100 POUNDS APPLIED TO THE ACTUAL WEIGHT (7,350 POUNDS) OF THE SHIPMENT, PURSUANT TO ITEM 33695 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, AND MIDDLE ATLANTIC CONFERENCE TARIFF NOS. 20-K, MF-I.C.C. NO. A-869, AND 15-J, MF-I.C.C. NO. A-949. UPON YOUR FAILURE TO REFUND THE RESULTING OVERCHARGE OF $120.71, THAT AMOUNT WAS WITHHELD FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. YOUR RECLAIM OF THE SUM DEDUCTED WAS DISALLOWED IN THE SETTLEMENT CERTIFICATE DATED FEBRUARY 5, 1962, WITH THE ADVICE THAT THE CHARGES WERE PROPERLY FOR COMPUTATION ON A LESS-THAN-TRUCKLOAD BASIS, CITING RULE 25 (D) OF MIDDLE ATLANTIC CONFERENCE TARIFF NO. 15 J, MF-I.C.C. NO. A-949.

IN YOUR PRESENT LETTER YOU INDICATE THAT THE VEHICLE WAS LOADED TO CAPACITY AND THEREFORE RULE 62-1 (ENTITLED "VEHICLES LOADED TO CAPACITY") OF TARIFF NO. 15-J SHOULD BE APPLIED IN COMPUTING THE APPLICABLE CHARGES INSTEAD OF RULE 25 (D) OF THE SAME TARIFF PROVIDING FOR THE "APPLICATION OF MAXIMUM CHARGES," WHICH IS THE GOVERNMENT'S BASIS FOR THE APPLICABLE CHARGES. WE ARE ENCLOSING A COPY OF THE SUBJECT BILL OF LADING, AS YOU REQUEST IN YOUR LETTER. THE BILL OF LADING SHOWS THAT THE FREIGHT WAS TENDERED AS A LESS-THAN-TRUCKLOAD SHIPMENT--- THE NOTATION "TENDERED AS (T/L" APPEARS THEREON--- BUT DOES NOT SHOW WHAT SIZE VEHICLE WAS USED OR THE DIMENSIONS OF THE ARTICLES SHIPPED. THERE IS NOTHING IN THIS RECORD TO ESTABLISH THAT THE VEHICLE WAS ACTUALLY LOADED TO CAPACITY.

WE FEEL, HOWEVER, THAT IT IS IRRELEVANT WHETHER THE VEHICLE USED WAS OR WAS NOT LOADED TO CAPACITY BECAUSE OF THE PROVISIONS OF RULE 25 (D) OF TARIFF NO. 15-J, WHICH READS AS FOLLOWS:

"WHEN THE CHARGE ON A SHIPMENT IS MADE LOWER BY BILLING IT AS A LESS-THAN -TRUCKLOAD SHIPMENT, SUCH LOWER CHARGE WILL APPLY.'

THIS RULE CONTAINS NO EXCEPTION PRECLUDING ITS APPLICATION IN ANY PARTICULAR SITUATION. THERE APPEARS TO BE NO ROOM FOR ANY INTERPRETATION OTHER THAN THAT IT APPLIES TO THE PRESENT SHIPMENT, REGARDLESS OF THE PROVISIONS OF RULE 62-1. WE NOTE THAT SUBSEQUENT TO THE SHIPMENT IN QUESTION, WHICH MOVED IN MAY 1959, PARAGRAPHS (C) AND (D) OF RULE 25 WERE CANCELLED BY SUPPLEMENT NO. 22 TO TARIFF NO. 15-J, EFFECTIVE NOVEMBER 2, 1959, IT BEING INDICATED, BY APPROPRIATE SYMBOL, THAT THE CHANGE RESULTED IN AN INCREASE. THIS REFLECTS A POSSIBLE UNDERSTANDING THAT RULE 62-1 WAS PREVIOUSLY LIMITED IN ITS APPLICATION BY SUCH PROVISIONS OF RULE 25 (D).

TARIFFS MUST BE EXPRESSED IN CLEAR AND PRECISE TERMS SO THAT THOSE DEALING WITH THEM MAY UNDERSTAND THEM AND ACT ACCORDINGLY. SINCE TARIFFS ARE WRITTEN BY THE CARRIERS, AMBIGUITIES OR REASONABLE DOUBTS AS TO MEANING MUST BE RESOLVED AGAINST THE CARRIERS. LOUISVILLE AND NASHVILLE R.CO. V. UNITED STATES, 109 F.SUPP. 464 (1953), AFFIRMED 217 F.2D. 307; SEE ALSO WILLINGHAM ET. AL. V. SALIGMAN ET. AL., 179 F.2D. 257 (1950); SOUTHERN PACIFIC CO. V. LOTHROP, 15 F.2D. 486 (1926); BUCH. EXPRESS V. UNITED STATES, 132 F.SUPP. 473 (1955), CERTIORARI DENIED, 351 U.S. 940.

IN THE LIGHT OF ESTABLISHED PRINCIPLES RULE 25 (D) SHOULD BE GIVEN CONTROLLING EFFECT IN THE PRESENT SITUATION. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IN THE SETTLEMENT OF FEBRUARY 5, 1962, IS SUSTAINED.