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B-125420, JUL. 17, 1956

B-125420 Jul 17, 1956
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TO CONTINENTAL FREIGHT LINES: REFERENCE IS MADE TO YOUR LETTER OF MAY 1. WHICH WAS EXPRESSLY REFERRED TO IN SECTION 2. RATINGS ON PARTICULAR CLASSES OF TRAFFIC WERE TO BE OBTAINED FROM WESTERN CLASSIFICATION NO. 72 (PUBLISHED IN CONSOLIDATED FREIGHT CLASSIFICATION NO. 17). THE ARTICLES WEIGHING LESS THAN 20 POUNDS PER CUBIC FOOT OF SPACE OCCUPIED WERE TO BE CHARGED FOR AT THE FIRST-CLASS ANY-QUANTITY RATE APPLIED TO A WEIGHT OF TEN POUNDS FOR EACH CUBIC FOOT OF SPACE OCCUPIED. OTHER ARTICLES IN THE SHIPMENT WEIGHING MORE THAN 20 POUNDS PER CUBIC FOOT OF SPACE OCCUPIED WERE TO BE CHARGED FOR AT THE "CLASS RATE OR RATES APPLICABLE THERETO" AT ACTUAL WEIGHT. VARIOUS "SPECIAL" SUPPLEMENTS WERE ISSUED PROVIDING A NEW SECTION 3.

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B-125420, JUL. 17, 1956

TO CONTINENTAL FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTER OF MAY 1, 1956, FILE 004-468, CONCERNING THE APPLICATION OF RULE 120 OF CONTINENTAL FREIGHT LINES U.S. GOVERNMENT QUOTATION NO. 1A TO SHIPMENTS OF GENERAL COMMODITIES TRANSPORTED BY YOUR COMPANY BETWEEN POINTS SET FORTH IN SECTION 3 OF THE QUOTATION.

AS ORIGINALLY ISSUED, THE QUOTATION CONTAINED CLASS RATES ONLY. SECTION 1 PROVIDED POINT-TO-POINT CLASS RATES AND SECTION 2 PROVIDED DISTANCE CLASS RATES, THE LATTER BEING FOR APPLICATION BETWEEN POINTS NOT NAMED IN SECTION 1 OR OTHERWISE PROVIDED FOR BY THE INTERMEDIATE APPLICATION FOR THE SECTION 1 RATES. SEE RULE 40, WHICH WAS EXPRESSLY REFERRED TO IN SECTION 2. RATINGS ON PARTICULAR CLASSES OF TRAFFIC WERE TO BE OBTAINED FROM WESTERN CLASSIFICATION NO. 72 (PUBLISHED IN CONSOLIDATED FREIGHT CLASSIFICATION NO. 17), R. C. FYFE'S MF-I.C.C. NO. 8, C.R.C. NO. WC-5, WHICH, BY EXPRESS PROVISION, ORIGINAL PAGE 3, GOVERNED THE QUOTATION. AN EXCEPTION TO THE CHARGES COMPUTED AT THE RATINGS AND RATES SO PROVIDED, RULE 120 OF THE QUOTATION REQUIRED, AS TO SHIPMENTS CONTAINING MORE THAN 50 CUBIC FEET OF ARTICLES WITH A SPACE-OCCUPIED DENSITY OF LESS THAN 20 POUNDS, COMPUTATION OF CHARGES ON A CONSTRUCTIVE BASIS PRESCRIBED BY THE RULE. THE ARTICLES WEIGHING LESS THAN 20 POUNDS PER CUBIC FOOT OF SPACE OCCUPIED WERE TO BE CHARGED FOR AT THE FIRST-CLASS ANY-QUANTITY RATE APPLIED TO A WEIGHT OF TEN POUNDS FOR EACH CUBIC FOOT OF SPACE OCCUPIED. OTHER ARTICLES IN THE SHIPMENT WEIGHING MORE THAN 20 POUNDS PER CUBIC FOOT OF SPACE OCCUPIED WERE TO BE CHARGED FOR AT THE "CLASS RATE OR RATES APPLICABLE THERETO" AT ACTUAL WEIGHT.

SUBSEQUENT TO THE ISSUANCE OF THE QUOTATION, BEGINNING JULY 8, 1947, THE CONTINUING THROUGH OCTOBER 10, 1948, VARIOUS "SPECIAL" SUPPLEMENTS WERE ISSUED PROVIDING A NEW SECTION 3, NAMING COMMODITY RATES FOR APPLICATION ON GENERAL FREIGHT MOVING BETWEEN DESIGNATED POINTS AND SUBJECT TO DESIGNATED MINIMUM WEIGHTS "PER LOAD.' FOLLOWING THE GENERAL RULE OF CONSTRUCTION EMBODIED IN RULE 38 OF THE GOVERNING WESTERN CLASSIFICATION, THESE COMMODITY RATES DISPLACED THE CLASS RATES PREVIOUSLY IN EFFECT ON LIKE TRAFFIC, LEAVING NO APPLICABLE CLASS RATES IN EFFECT IN THE QUOTATION ON GENERAL FREIGHT MOVING BETWEEN THE POINTS NAMED IN SECTION 3. SEE, IN THIS CONNECTION, RULE 4/F) OF INTERSTATE COMMERCE COMMISSION TARIFF CIRCULAR MF NO. 3 AND VEGETABLE OIL SHORTENING--- IVORYDALE--- CHICAGO, 49 M.C.C. 715, 718-719.

SECTION 3 DOES NOT EXPRESSLY PROVIDE FOR THE APPLICATION OF NON APPLICATION OF RULE 120 TO SHIPMENTS SUBJECT TO THE RATES NAMED THEREIN BUT THE EXPRESS LANGUAGE OF THE RULE NEGATIVES ITS APPLICATION TO SHIPMENTS SUBJECT TO THAT SECTION. THE RULE PROVIDES, IN PART, THAT CHARGES "ON ARTICLES WEIGHING MORE THAN TWENTY (20) POUNDS PER CUBIC FOOT OF SPACE OCCUPIED INCLUDED IN A SHIPMENT WITH LIGHT AND BULKY ARTICLES SHALL BE ASSESSED BY APPLYING THE CLASS RATE OR RATES APPLICABLE THERETO AT ACTUAL WEIGHT.' THERE ARE NO APPLICABLE CLASS RATES FOR GENERAL FREIGHT MOVING BETWEEN POINTS NAMED IN SECTION 3 BECAUSE THE COMMODITY RATES NAMED THEREIN DISPLACE THE CLASS RATES NAMED IN OTHER SECTIONS OF THE QUOTATIONS. IF IT HAD BEEN INTENDED THAT RULE 120 BE APPLIED IN CONNECTION WITH SHIPMENTS SUBJECT TO THE COMMODITY RATES NAMED IN SECTION 3, IT SEEMS LOGICAL TO ASSUME THAT THE RULE WOULD HAVE BEEN APPROPRIATELY AMENDED.

RULE 120 WAS, OF COURSE, IN EXISTENCE PRIOR TO THE ISSUANCE OF ANY OF THE "SPECIAL" SUPPLEMENTS DESIGNATED AS SECTION 3 OF THE QUOTATION CONTAINING, FOR THE FIRST TIME IN THE QUOTATION, COMMODITY RATES AVAILABLE FOR APPLICATION ON GENERAL FREIGHT BETWEEN THE IDENTIFIED POINTS. THE LANGUAGE OF RULE 120 CLEARLY COMPREHENDED CLASS RATES ONLY SINCE AT THE TIME OF ITS PUBLICATION NO COMMODITY RATES WERE NAMED IN THE QUOTATION. SUPPORT FOR THIS VIEW ALSO SEEMS PRESENT IN PARAGRAPH (B) OF RULE 120 WHICH REQUIRES THE ASSESSMENT OF CHARGES BASED ON "THE APPLICABLE CLASS RATE OR RATES" ON THE ACTUAL WEIGHT OF THE SHIPMENT, IN THE EVENT SUCH CHARGES ARE FOUND TO BE HIGHER THAN THOSE PROVIDED IN PARAGRAPH (A) OF THE RULE. IN SUCH A CASE, THE PRACTICAL RESULT OF YOUR VIEW WOULD BE THAT USE OF THE SPECIFIC COMMODITY RATES IN COMBINATION WITH THE CLASS-RATE BASIS IN PARAGRAPH (A) WOULD GENERALLY BE PRECLUDED, THUS VIOLATING THE PRINCIPLE THAT COMMODITY RATES DISPLACE CLASS RATES. THE DISPLACEMENT OF THE CLASS RATES OCCURRED WHEN ITEM 200 WAS PUBLISHED AND ANY PREEXISTING RULES SUCH AS RULE 120 INCONSISTENT WITH THE AUTHORIZED APPLICATION OF THE COMMODITY RATES THUS AFFORDED THE GOVERNMENT CANNOT BE GIVEN EFFECT SO AS TO IMPOSE RESTRICTIONS ON THE TENDER EMBODIED IN ITEM 200 WHICH WOULD APPEAR TO CONFLICT WITH THE APPARENT INTENTION OF THE CARRIER TO SEEK THE TRAFFIC INVOLVED UNDER COMPETITIVE CONDITIONS. IN ANY EVENT, A FAIR AND REASONABLE CONSTRUCTION OF YOUR QUOTATION JUSTIFIES THE CONCLUSION THAT IT WAS YOUR INTENTION THAT THE COMMODITY RATES IN ITEM 200 BE APPLIED TO THE EXCLUSION OF THE PROVISIONS OF RULE 120. AMERICAN ART WORKS, INC. V. ACME FAST FREIGHT, INC., 284 I.C.C. 143, 145-146. ANY REASONABLE DOUBT WHICH EXISTS AS TO THE MEANING OF YOUR QUOTATION MUST BE RESOLVED AGAINST YOUR COMPANY AS THE CARRIER RESPONSIBLE FOR THE PROVISIONS CONTAINED IN IT. WABASH FIBRE BOX CO. V. DANNY MOTOR TRANSFER CO., 18 M.C.C. 291, 293.

FURTHERMORE, IT APPEARS THAT THE MINIMUM WEIGHT PER LOAD REQUIREMENTS IN CONNECTION WITH THE COMMODITY RATES IN SECTION 3 PROTECT CARRIER REVENUES IN THE CASE OF SHIPMENTS CONTAINING LIGHT AND BULKY ARTICLES BECAUSE A CHARGE BASED ON AT LEAST 30,000 OR MORE POUNDS PER UNIT OF EQUIPMENT IS REQUIRED TO BE ASSESSED REGARDLESS OF THE DENSITY OF THE ARTICLES IN THE LOAD, A SITUATION WHICH WOULD NOT NECESSARILY OBTAIN IN THE CASE OF CLASS- RATED TRAFFIC SUBJECT TO VOLUME MINIMUM WEIGHTS.

FOR THESE REASONS, WE BELIEVE THAT RULE 120 IS FOR APPLICATION ONLY TO SHIPMENTS SUBJECT TO THE CLASS RATES NAMED IN SECTIONS 1 AND 2 OF THE QUOTATION. WE MUST, THEREFORE, DECLINE PAYMENT OF CLAIMS BASED ON THE APPLICATION OF RULE 120 TO SHIPMENTS SUBJECT TO THE COMMODITY RATES NAMED IN SECTION 3.

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