B-178563, FEB 15, 1974, 53 COMP GEN 602

B-178563, FEB 15, 1974, 53 COMP GEN 602

TRANSPORTATION - RATES - SECTION 22 QUOTATIONS - TENDER APPLICABLE - SHIPMENTS DUE TO MILITARY ACTIVITIES CLOSING CARRIER'S SECTION 22 TENDER COVERING OFFICE FURNITURE, FILES AND EQUIPMENT IS NOT APPLICABLE ON SHIPMENTS OF BACHELOR OFFICERS' QUARTERS FURNISHINGS AND EQUIPMENT, GENERAL COMMODITIES AND HOUSEHOLD GOODS IN CONNECTION WITH THE CLOSING OF FLOYD BENNETT AIR FIELD, BUT RATHER FOR APPLICATION IS THE TENDER THAT COVERS HOUSHOLD GOODS SINCE SHIPMENTS OF AN ESTABLISHMENT MOVING FROM ONE LOCATION TO ANOTHER MEETS THE ICC DEFINITION OF HOUSEHOLD GOODS. TRANSPORTATION - RATES - SECTION 22 QUOTATIONS - EXCLUSIVE VEHICLE USE SHIPMENTS WHERE THE CARRIER'S SECTION 22 TENDER FOR SPECIAL VEHICLE SERVICES REQUIRES THE SERVICE TO BE ORDERED BY THE SHIPPER AND THAT THE SHIPPING DOCUMENTS BE MARKED TO SO INDICATE AND THE ADMINISTRATIVE OFFICE ADVISES THE SERVICES WERE NOT ORDERED, THE CARRIER IS NOT ENTITLED TO THE SPECIAL CHARGES NOTWITHSTANDING THE SHIPPING DOCUMENTS WERE PROPERLY MARKED. MODIFIED BY 53 COMP. GEN. (B-178563, MAY 15, 1974).

IN THE MATTER OF TRANS COUNTRY VAN LINES, INC., FEBRUARY 15, 1974:

TRANS COUNTRY VAN LINES, INC., REQUESTS REVIEW OF THE SETTLEMENT CERTIFICATES WHICH DISALLOWED ITS CLAIMS FOR ADDITIONAL TRANSPORTATION CHARGES ON 26 SHIPMENTS OF GOVERNMENT PROPERTY TRANSPORTED BY THE COMPANY IN CONNECTION WITH THE CLOSING OF FLOYD BENNETT AIR FIELD, NEW YORK, AND THE RELOCATION OF A FEDERAL BUILDING IN CINCINNATI, OHIO.

REGARDING THE FLOYD BENNETT FIELD SHIPMENTS, THE CARRIER CONTENDS THAT HOUSEHOLD GOODS RATES LISTED IN GOVERNMENT RATE TENDER I.C.C. NO. 1-V SHOULD APPLY. TRANS COUNTRY STATED IN A LETTER DATED OCTOBER 25, 1972, TO THE TRANSPORTATION AND CLAIMS DIVISION OF THIS OFFICE:

THIS SHIPMENT WAS MADE INCIDENT TO THE REMOVAL OF AN ESTABLISHMENT, OR A PORTION THEREOF, FROM ONE LOCATION TO ANOTHER. THUS WE HAVE THE AUTHORITY TO TRANSPORT THESE COMMODITIES UNDER OUR GOVERNMENT RATE TENDER 1-V, SECTION 4 RATES REGARDLESS OF THE RATES PUBLISHED BY ANY OTHER CARRIER. AS PREVIOUSLY STATED, G.R.T. 1-V, SECTION 4 RATES APPLY SINCE WE HAVE NO PROVISION IN OUR SECTION 22 QUOTATION (ICC 150) FOR SUCH A MIXED COMMODITY.

THE TRANSPORTATION AND CLAIMS DIVISION OF THIS OFFICE INITIALLY CONCLUDED THAT TRANS COUNTRY VAN LINES TENDER I.C.C. NO. 150 WAS APPLICABLE. REVIEW, THIS RESULT WAS AMENDED AND THE DIVISION NOW BELIEVES THAT THE CARRIER'S TENDER I.C.C. 150 IS NOT APPLICABLE ON THE SHIPMENTS SINCE THE COMMODITIES SHIPPED DO NOT APPEAR IN THE LIST OF COMMODITIES DESCRIBED IN THAT TENDER. HOWEVER, THE DIVISION ALSO SAYS THAT TENDER I.C.C. NO. 1-V IS NOT APPLICABLE EITHER SINCE THE ARTICLES DESCRIBED ON THE BILLS OF LADING ARE ALL GENERAL CARGO COMMODITIES AND THERE IS NOTHING ON THE BILLS OF LADING TO INDICATE A RELOCATION OF THE ESTABLISHMENT. THEREFORE, ACCORDING TO THE DIVISION, SINCE TRANS COUNTRY VAN LINES HAS NO PUBLISHED GENERAL COMMODITY RATES FOR ITS OWN ACCOUNT NOR PARTICIPATES IN THE PUBLISHED RATES OF OTHER CARRIERS, COMPENSATION SHOULD BE DETERMINED UPON A QUANTUM MERUIT BASIS WITH COMPARABLE PUBLISHED RATES OF OTHER CARRIERS USED AS A MEASURE OF JUST COMPENSATION.

TENDER I.C.C. NO. 1-V APPLIES ONLY IN THE ABSENCE OF AN APPLICABLE INDIVIDUAL TENDER AS FILED BY THE CARRIER. IF TENDER I.C.C. NO. 1-V WERE ALSO FOUND NOT APPLICABLE, THEN COMPENSATION WOULD BE BASED ON A QUANTUM MERUIT THEORY.

IN ORDER TO DETERMINE WHICH TARIFF OR TENDER, IF ANY, TO APPLY, IT IS NECESSARY TO ASCERTAIN THE IDENTITY OF THE ARTICLES SHIPPED. SOME FACTORS TO CONSIDER IN MAKING THIS DETERMINATION ARE THE SHIPPING DESCRIPTIONS ON THE BILL OF LADING, THE FUNCTION, AND THE USE OF THE ARTICLE. THE BILL OF LADING DESCRIPTION OF THE SHIPPED ARTICLES IS PRIMA FACIE EVIDENCE OF THE IDENTITY THEREOF AND IS ENTITLED TO GREAT WEIGHT, AS HERE, IN DETERMINING THE APPLICABLE QUOTATION. SOUTHERN PACIFIC TRANSPORTATION CO. V. UNITED STATES, 454 F.2D 740, 744 (1972), 197 CT. CL. 143 (1972).

THE SHIPMENTS IN QUESTION INVOLVED VARIOUS KINDS OF FURNISHINGS AND EQUIPMENT. FOR EXAMPLE, GOVERNMENT BILL OF LADING (GBL) F-5586421 SHOWS THAT "OFFICE FURNISHINGS AND EQUIPMENT (BOQ)" WERE SHIPPED, GBLE 5586473 SHOWS THAT "CARTS, DISTRIBUTORS OR SPEADERS SU, LOOSE ON WHEELS. NMFC 118925 SUB. 2" WERE SHIPPED, AND GBL F-5586471 SHOWS THAT FIRE EXTINGUISHER CHARGES OR COMPOUNDS, COMPRESSORS OR PUMPS, RUBBER HOSE, AND CHEMICALS WERE SHIPPED. THE REMAINING SHIPMENTS INVOLVED IN THE DEACTIVATION OF THE FLOYD BENNETT AIR FIELD WERE EITHER SHOWN ON THE BILLS OF LADING AS BEING BACHELOR OFFICERS' QUARTERS (BOQ) FURNITURE OR FURNISHINGS OR SUBSEQUENT ADVICE FROM THE ADMINISTRATIVE AGENCY SHOWED THE SHIPMENTS TO BE BOQ OR HOUSEHOLD GOODS AND FURNISHINGS.

THE TERM BOQ INCLUDES BUILDINGS AND FACILITIES FOR OCCUPANCY FOR CERTAIN MEMBERS OF THE UNIFORMED SERVICES, INCLUDING LIVING ACCOMMODATIONS AND FURNISHINGS. SEE 37 U.S.C. 403 AND ARMY REGULATIONS NO. 210-16.

IT IS OUR VIEW THAT ARTICLES SUCH AS THE ABOVE MENTIONED AND OTHERS WHICH ARE DESCRIBED IN THE SPECIFIC INVENTORY LISTS (REFRIGERATORS, BOX SPRINGS, MATTRESSES, ETC.), ARE NOT NORMALLY CONSIDERED AS BEING COVERED BY THE COMMODITY DESCRIPTION IN TENDER I.C.C. NO. 150, WHICH READS IN PART, "OFFICE FURNITURE, FILES, FIXTURES AND EQUIPMENT, *** ELECTRONIC EQUIPMENT *** AND/OR PARTS THEREOF ***." THEREFORE, THE RATES IN TENDER I.C.C. NO. 150 ARE NOT APPLICABLE IN ASCERTAINING THE CHARGES FOR THE COMMODITIES INCLUDED IN THE SUBJECT SHIPMENTS.

ITEM 10 OF TENDER I.C.C. NO. 1-V PROVIDES THAT THE DESCRIPTION OF PROPERTY UNDER THE TERM "HOUSEHOLD GOODS," TO WHICH THE TENDER RATES APPLY IS THAT CLASS OF PROPERTY DESIGNATED BY THE INTERSTATE COMMERCE COMMISSION IN EX PARTE NO. MC-19 (PRACTICES OF MOTOR COMMON CARRIERS OF HOUSEHOLD GOODS, 17 M.C.C. 467, 473, 505 (1939)), AND READS IN PART AS FOLLOWS:

(A) HOUSEHOLD GOODS. THE TERM "HOUSEHOLD GOODS" MEANS

(1) PERSONAL EFFECTS AND PROPERTY USED OR TO BE USED IN A DWELLING WHEN A PART OF THE EQUIPMENT OR SUPPLY OF SUCH DWELLING;

(2) FURNITURE, FIXTURES, EQUIPMENT AND THE PROPERTY OF STORES, OFFICES, MUSEUMS, INSTITUTIONS, HOSPITALS, OR OTHER ESTABLISHMENTS, WHEN A PART OF THE STOCK, EQUIPMENT, OR SUPPLY OF SUCH STORES, OFFICES, MUSEUMS, INSTITUTIONS, HOSPITALS, OR OTHER ESTABLISHMENTS; AND

(3) ARTICLES, INCLUDING OBJECTS OF ART, DISPLAYS AND EXHIBITS, WHICH BECAUSE OF THEIR UNUSUAL NATURE OR VALUE REQUIRE SPECIALIZED HANDLING AND EQUIPMENT USUALLY EMPLOYED IN MOVING HOUSEHOLD GOODS.

TRANS COUNTRY CONTENDS THAT SECTION (A)(2) WOULD APPLY TO THE SHIPMENTS IN QUESTION. THE INTERPRETATION OF THIS SUBSECTION, CONTAINED IN PART (B) OF ITEM 10 READS:

SUBSECTION (2) SHALL NOT BE CONSTRUED TO INCLUDE THE STOCK-IN-TRADE OF ANY ESTABLISHMENT, WHETHER CONSIGNOR OR CONSIGNEE, OTHER THAN USED FURNITURE AND USED FIXTURES, EXCEPT WHEN TRANSPORTED AS AN INCIDENT TO THE REMOVAL OF THE ESTABLISHMENT, OR A PORTION THEREOF, FROM ONE LOCATION TO ANOTHER.

AS A RESULT OF THE CASE OF MOVERS CONFERENCE OF AMERICA V. UNITED STATES, 205 F. SUPP. 82 (1962), THIS INTERPRETATIVE SUBSECTION WAS FURTHER CLARIFIED BY THE INTERSTATE COMMERCE COMMISSION IN PRACTICES OF MOTOR COMMON CARRIERS OF HOUSEHOLD GOODS, 95 M.C.C. 252, 256 (1964) TO READ:

SUBSECTION (2) SHALL BE CONSTRUED IO INCLUDE THE COMMODITIES MENTIONED THEREIN WHEN TRANSPORTED PURSUANT TO THE REMOVAL OF THE ESTABLISHMENT, OR A PORTION THEREOF, FROM ONE LOCATION TO ANOTHER, AND USED FURNITURE, USED FIXTURES, AND USED EQUIPMENT OF STORES, OFFICES, MUSEUMS, INSTITUTIONS, HOSPITALS, OR OTHER ESTABLISHMENTS TRANSPORTED (I) FROM LOCATION IN ONE BRANCH OF AN ESTABLISHMENT TO LOCATION IN ANOTHER BRANCH OF THAT ESTABLISHMENT, (II) FROM LOCATION IN ONE ESTABLISHMENT NOT REGULARLY ENGAGED IN THE SALE, LEASE, OR RENTAL OF SUCH PROPERTY TO ANOTHER ESTABLISHMENT, AND (III) BETWEEN LOCATION IN AN ESTABLISHMENT AND A REPAIR OR STORAGE FACILITY; BUT SHALL NOT BE CONSTRUED TO INCLUDE STOCK-IN-TRADE OF ANY ESTABLISHMENT EXCEPT WHEN TRANSPORTED AS AN INCIDENT TO THE REMOVAL OF THE ESTABLISHMENT, OR A PORTION THEREOF, FROM ONE LOCATION TO ANOTHER.

THE PROPERTY REMOVED FROM FLOYD BENNETT FIELD WAS NOT ALL CONSIGNED TO ONE DESTINATION. THE 13 SHIPMENTS WERE CONSIGNED AS FOLLOWS: DALLAS, TEXAS, TWO LOADS; NORFOLK, VIRGINIA, ONE LOAD; NEW ORLEANS, LOUISIANA, FIVE LOADS; GLENVIEW, ILLINOIS, THREE LOADS; SOLOMONS, MARYLAND, TWO LOADS. IT APPEARS THAT THESE SHIPMENTS WOULD BE INCLUDED WITHIN SECTIONS II AND III OF THE ABOVE CONSTRUCTION. THE COMMODITIES WERE MOVED "FROM LOCATION IN ONE ESTABLISHMENT NOT REGULARLY ENGAGED IN THE SALE, LEASE, OR RENTAL OF SUCH PROPERTY TO ANOTHER ESTABLISHMENT," AND "BETWEEN LOCATION IN AN ESTABLISHMENT AND A REPAIR OR STORAGE FACILITY ***."

THEREFORE, AS FOR THE GOODS SHIPPED FROM FLOYD BENNETT FIELD TO OTHER LOCATIONS AROUND THE COUNTRY, WE CONCLUDE AS A RESULT OF THE COMMISSION'S CLARIFICATION OF 17 M.C.C. 467, ON WHICH THE COMMODITY DESCRIPTION OF ITEM 10 OF TENDER I.C.C. NO. 1-V IS BASED, FOUND IN 95 M.C.C. 252, 256, THAT TENDER I.C.C.-IV IS APPLICABLE IN ASCERTAINING THE LINE-HAUL TRANSPORTATION CHARGES FOR THESE SHIPMENTS.

REGARDING THE CINCINNATI TO AVON MOVE, THE CARRIER CLAIMS THAT THE SHIPMENTS MOVED ON COMMERCIAL BILLS OF LADING (CBLS) MARKED FOR CONVERSION TO GOVERNMENT BILLS OF LADING (GBLS) AT DESTINATION. AND SINCE THE CBLS SHOW THAT THE SPECIAL SERVICE OF EXCLUSIVE USE OF A VEHICLE OF SPECIFIC CUBIC CAPACITY WAS ORDERED AND THAT THE SHIPMENT COMPLETELY OCCUPIED THE VEHICLE, THE CHARGES MUST BE COMPUTED ON THE ACTUAL WEIGHT OF THE SHIPMENT SUBJECT TO A MINIMUM WEIGHT OF SEVEN POUNDS PER CUBIC FOOT. THIS SHIPMENT INVOLVED THE MOVEMENT OF OFFICE MACHINES, DESKS, CHAIRS, CABINETS, ETC., DUE TO THE CLOSURE OF THE CINCINNATI ARMY PROCUREMENT AGENCY IN CINCINNATI, OHIO. THE AWARD FOR THIS MOVEMENT OF APPROXIMATELY 114,000 POUNDS OF OFFICE FURNITURE AND EQUIPMENT WAS MADE TO TRANS COUNTRY VAN LINES ON DECEMBER 10, 1969. TRANS COUNTRY SUBCONTRACTED THE MOVE TO FERGUSON VAN LINES, INC., OF CINCINNATI. THE ADMINISTRATIVE REPORT SENT TO THIS OFFICE INDICATES THAT (A) A SPECIFIC AMOUNT OF SPACE OR EXCLUSIVE USE OF VEHICLE WAS NOT ORDERED, (B) THE TYPE OF VEHICLES OR CAPACITY OF SUCH VEHICLES TO BE USED IN THE MOVE WAS NOT ORDERED, (C) ALL THE VEHICLES USED WERE LOADED TO CAPACITY UPON ARRIVAL AT THE DEPOT IN AVON, KENTUCKY, AND (D) SEALS WERE NOT APPLIED NOR REQUESTED TO BE APPLIED.

IN CONNECTION WITH THIS ISSUE OF SPECIAL VEHICLE SERVICES, THE SECOND PARAGRPH OF ITEM #1 OF TRANS COUNTRY'S TENDER I.C.C. NO. 50 PROVIDES:

WHEN THE SHIPPER OR SHIPPERS AGENT ORDERS A SPECIFIC VEHICLE OR VEHICLE SERVICE, I.E., COMPLETE OCCUPANCY OF VEHICLE, EXCLUSIVE USE OF VEHICLE, OR THE VEHICLE SEALED, OR SPACE RESERVATION FOR A PORTION OF THE VEHICLE OR VEHICLES, AND THE GOVERNMENT BILL OF LADING, CARRIERS BILL OF LADING OR DD 619 FORM IS MARKED, STAMPED OR ANNOTATED IN ANY MANNER TO INDICATE SUCH SPECIFIC VEHICLE OR VEHICLE SERVICE, THE CARRIER WILL PROVIDE THE SERVICE AND ASSESS THE TRANSPORTATION ON CHARGES COMPUTED ON ACTUAL WEIGHT SUBJECT TO A MINIMUM WEIGHT BASED ON SEVEN POUNDS PER CUBIC FOOT OF VEHICLE SPACE ORDERED OR UTILIZED.

AS WE CONSTRUE THIS PROVISION, CHARGES WILL BE ASSESSED FOR A SPECIFIC VEHICLE OR VEHICLE SERVICE ONLY WHEN THE SHIPPER OR SHIPPERS AGENT ORDERS SUCH SERVICE OR SERVICES. THE SECOND PROVISO RELATIVE TO THE ASSESSMENT OF PREMIUM CHARGES FOR SPECIAL VEHICLE SERVICES CONTAINED IN ITEM #1 REQUIRES THAT CERTAIN SHIPPING DOCUMENTS BE MARKED, STAMPED OR ANNOTATED IN A MANNER TO INDICATE THE SPECIFIC VEHICLE OR VEHICLE SERVICE.

WHILE THE RECORDS INDICATE FULL COMPLIANCE WITH THE SECOND PROVISO RELATIVE TO DOCUMENTATION, THE RECORD ALSO CLEARLY AND AFFIRMATIVELY SHOWS THAT THE FIRST CONDITION FOR ASSESSMENT OF CHARGES FOR SPECIAL SERVICES WAS NOT MET. TO THE CONTRARY, THE RECORDS SHOW THAT NEITHER THE SHIPPER NOR THE SHIPPER'S AGENT ORDERED A SPECIFIC VEHICLE OR VEHICLE SERVICE.

SINCE THE ADMINISTRATIVE REPORT SHOWS THAT A SPECIFIC VEHICLE OR VEHICLE SERVICE WAS NOT ORDERED, WE MUST CONCLUDE THAT WHOEVER CAUSED THE CHECK MARKS AND NOTATIONS TO BE PLACED ON THE SHIPPING DOCUMENTS TO SHOW THAT A SPECIFIC VEHICLE OR VEHICLE SERVICE WAS ORDERED WAS NOT IN POSSESSION OF THE TRUE FACTS AND WAS NOT AUTHORIZED TO DO SO. EVEN THOUGH ALL THE VEHICLES WERE LOADED TO CAPACITY, THERE EXISTS NO BASIS FOR THE ASSESSMENT OF THE PREMIUM CHARGES PROVIDED IN ITEM #1 OF TENDER I.C. NO. 50 SINCE THE GOVERNMENT DID NOT REQUEST THE SPECIAL VEHICLE SERVICES COVERED BY THAT ITEM. SEE ALSO 51 COMP. GEN. 208 (1971).

ACCORDINGLY, THE CHARGES FOR THE SHIPMENTS INVOLVED IN THE DEACTIVATION OF FLOYD BENNETT AIR FIELD WILL BE RECOMPUTED AND, IF OTHERWISE CORRECT, SETTLEMENTS MAKING APPROPRIATE ALLOWANCES WILL BE ISSUED. HOWEVER, IN CONNECTION WITH THE SHIPMENTS INVOLVED IN THE CLOSURE OF A FEDERAL BUILDING IN CINCINNATI, THE SETTLEMENT CERTIFICATES DISALLOWING THE CARRIER'S CLAIMS APPEAR TO BE CORRECT AND ARE SUSTAINED.