B-139907, JUN. 30, 1960

B-139907, JUN. 30, 1960

TO A. B. JAMES FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTERS WRITTEN UNDER FILE N-358/58 352772 B- 139907, IN WHICH YOU REITERATE YOUR POSITION THAT THE RATING NAMED IN ITEM 275 OF SOUTHWESTERN MOTOR TARIFF BUREAU QUOTATION 1-B, EFFECTIVE OCTOBER 10, 1957, MUST BE APPLIED IN COMPUTING THE CHARGES ON THE SHIPMENT TRANSPORTED UNDER BILL OF LADING N-22268190, DATED MARCH 7, 1958.

IN TAKING ISSUE WITH OUR USE OF THE CLASSIFICATION RATINGS AND THE RATES NAMED IN SECTION 2 OF THE CITED QUOTATION TO COMPUTE THE OVERCHARGES, YOU CONTEND THAT CIRCLE REFERENCE ONE OF ITEM 275, WHICH WAS IN EFFECT ON THE DATE THIS SHIPMENT MOVED, WAS NEVER INTENDED TO PERMIT ALTERNATIVE APPLICATION OF THE FIFTH-CLASS RATING PUBLISHED IN THAT ITEM WITH THE CLASSIFICATION RATINGS, AND THAT THE CLASSIFICATION RATINGS WERE THEREFORE WITHOUT APPLICATION. TO SUPPORT YOUR POSITION, YOU ASSERT AS AN ACCEPTED PRINCIPLE OF TRANSPORTATION LAW THAT A TARIFF MUST BE CONSTRUED IN ACCORDANCE WITH THE TERMS USED RATHER THAN BY WHAT THE AUTHOR INTENDED, AND YOU URGE THAT A STRAINED AND UNNATURAL CONSTRUCTION IS NOT RECOGNIZED BY THE INTERSTATE COMMERCE COMMISSION AS JUSTIFICATION FOR CONSTRUING A TARIFF IN FAVOR OF THE SHIPPER AND AGAINST THE CARRIER.

WHILE YOUR STATEMENTS ARE GENERALLY TRUE, IT IS ALSO TRUE THAT NEITHER A SHIPPER NOR A CARRIER IS PERMITTED TO URGE A STRAINED OR UNNATURAL CONSTRUCTION. T. E. GATES MARBLE AND TILE CO. V. CHICAGO, PEORIA AND ST. LOUIS R.R.CO., 120 I.C.C. 275, 277. A TARIFF MUST BE CONSIDERED IN ITS ENTIRETY, AND IF THE PROVISIONS SO CONSIDERED MAY FAIRLY AND REASONABLY BE SAID TO OUTWEIGH A STRAINED AND TECHNICAL CONSTRUCTION OF A SPECIFIC PROVISION, THE FAIR AND REASONABLE CONSTRUCTION MUST PREVAIL. IOLA CEMENT MILLS TRAFF.ASSN. V. ATCHISON, T. AND S.F.RY.CO., 169 I.C.C. 367, 375; NASHVILLE TRAFFIC BUREAU V. DIRECTOR GENERAL, 92 I.C.C. 211; RAYMOND NADLEY CORP. V. BOSTON AND M.R.R., 174 N.I.S. 342. LIKE ANY OTHER CONTRACTUAL OFFER, A TARIFF MUST BE CONSTRUED AS A WHOLE WITH ALL OF ITS PARTS HARMONIZED, INSOFAR AS REASONABLY POSSIBLE, AND NO PART IS TO BE TAKEN AS ELIMINATED OR STRICKEN BY SOME OTHER PART UNLESS SUCH RESULT IS FAIRLY INESCAPABLE. UNITED STATES V. MISSOURI PACIFIC RAILROAD COMPANY, 250 F.2D 805, 807; JON H. SWISHER AND SON, INC. V. R.C. MOTOR LINES, INC., 67 M.C.C. 198, 200. IF THE WORDS, GIVEN ALITERAL CONSTRUCTION, WOULD PRODUCE AN UNFAIR, UNUSUAL OR IMPROBABLE RESULT, SUCH CONSTRUCTION IS TO BE AVOIDED, IF POSSIBLE. A. E. WEST PETROLEUM CO. V. ATCHISON, T. AND S.F.RY.CO., 212 F.2D 812, 816.

PRESUMABLY, SINCE QUOTATION 1-B IS SET UP IN TARIFF FORM, IT SHOULD BE INTERPRETED AND APPLIED IN THE SAME MANNER AS ANY REGULARLY FILED AND PUBLISHED TARIFF. IT IS ILLOGICAL TO ASSUME THAT AFTER ISSUING SUCH AN EXTENSIVE PUBLICATION, NAMING BOTH COMMODITY AND CLASS RATES AND SPECIFIC EXCEPTIONS THERETO, A PUBLISHING AGENT WOULD THEN UNDERTAKE TO ELIMINATE A LARGE PORTION OF SUCH RATES BY THE INSERTION OF ANOTHER ITEM WHICH WOULD RENDER SUCH RATES AND RATINGS A NULLITY. MILEAGE CLASS RATES ARE NAMED IN SECTION 2 FOR DISTANCES WHICH FAR EXCEED THE ACTUAL MILEAGE BETWEEN THE POINTS NAMED IN ITEM 275, MOST OF WHICH WOULD BE UNNECESSARY UNDER YOUR INTERPRETATION.

MOREOVER, THE CLASS RATE STRUCTURE IS SET UP ON A SLIDING SCALE OF RATES ON VARYING MINIMUM WEIGHTS BASED ON LESS-THAN-CARLOAD RATINGS WHICH PRODUCE LESSER CHARGES THAN THOSE BILLED BY YOUR COMPANY. CARLOAD RATINGS ARE ALSO PROVIDED, BASED ON THE MINIMUM WEIGHTS SHOWN IN THE CLASSIFICATION. THUS, THE RATES APPARENTLY WERE DESIGNATED TO HAVE ALTERNATIVE APPLICATION BASED ON VARYING MINIMUM WEIGHTS. THE MAINTENANCE OF SUCH RATES IS A WIDELY ESTABLISHED PRACTICE (E. J. SMITH AND SONS CO. V. COLORADO AND SOUTHERN RAILWAY CO., 281 I.C.C. 175, 178), AND HAS BEEN RECOGNIZED BY THE INTERSTATE COMMERCE COMMISSION. TRAFFIC BUREAU, LYNCHBURG CHAMBER OF COMMERCE V. NORFOLK AND WESTERN RY.CO., 248 I.C.C. 203, 208; R. E. SCHANZER, INC. V. ALABAMA GREAT SOUTHERN RY.CO., 255 I.C.C. 239, 244. THE PUBLICATION OF A FIFTH-CLASS RATING APPLICABLE ON A 40,000 POUND MINIMUM WEIGHT IN ITEM 275 APPEARS TO BE NOTHING MORE THAN AN ADDITIONAL BASIS FOR THE ALTERNATIVE APPLICATION OF RATES BASED ON A GREATER MINIMUM WEIGHT.

QUOTATION 1-B CANCELLED AND SUPERSEDED QUOTATION 1-A WHEREIN, AS ITEM 185.2, THE ITEM TOOK ITS PRESENT FORM. THE FACT THAT THE ORIGINAL FORMAT PROVIDED FOR THE ALTERNATIVE APPLICATION OF THE FIFTY CLASS RATING, AND THAT AN ASTERISK NOTATION WAS PLACED ON ALL SUBSEQUENT REPUBLICATIONS OF THE ITEM WHICH INDICATED A CHANGE BUT NO INCREASE OR REDUCTION, FURTHER SUPPORTS OUR VIEW THAT THE ITEM WAS INTENDED TO HAVE ALTERNATIVE APPLICATION. FURTHERMORE, AS STATED IN OUR PREVIOUS LETTER, THE WORDING UNDER CIRCLE REFERENCE ONE TO ITEM 275 CONSISTENTLY REFERS TO THE APPLICATION OF ,THIS ITEM.' IF ALTERNATIVE APPLICATION OF THE ENTIRE ITEM WAS NOT INTENDED, IT SEEMS THAT REFERENCE WOULD HAVE BEEN QUALIFIED BY THE USE OF A DEFINITIVE TERM, SUCH AS "THIS SECTION.'

REGARDING YOUR ASSERTIONS AS TO THE SHIPPING OFFICER'S INTERPRETATION OF THIS ITEM, YOUR ATTENTION IS INVITED TO ANOTHER FREIGHT BILLING OF YOUR COMPANY, YOUR BILL NO. N-361 COVERING BILL OF LADING N-8587769, IN WHICH THE SHIPPER INDICATES ON THE BILL OF LADING THE OPPOSITE UNDERSTANDING OF THE QUOTATION PROVISIONS. SINCE THE MANDATORY APPLICATION OF THIS ITEM IS NOT CLEARLY INDICATED AND THE INTERPRETATION URGED BY YOU DOES NOT FOLLOW THE GENERAL QUOTATION PATTERN, WE CANNOT CONCUR WITH YOUR CONSTRUCTION.

ACCORDINGLY, EITHER A SUFFICIENT SUM WILL BE WITHHELD FROM AMOUNTS OTHERWISE PAYABLE TO YOUR COMPANY TO RECOUP THE OVERPAYMENTS, OR COLLECTION WILL BE EFFECTED BY OTHER AVAILABLE MEANS, UNLESS REFUNDS ARE PROMPTLY MADE.