B-119978, DEC. 17, 1956

B-119978, DEC. 17, 1956

TO MR. E. F. MACMILLAN, TRANSPORTATION CONSULTANT:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 2, 1956, REQUESTING FURTHER CONSIDERATION OF THE DECISION DATED OCTOBER 19, 1954, B 119978, WHICH SUSTAINED THE ACTION OF OUR TRANSPORTATION DIVISION IN DETERMINING CERTAIN OVERPAYMENTS TO HAVE BEEN MADE TO THE WELLS CARGO, INC., RENO, NEVADA, FOR THE TRANSPORTATION OF AMMUNITION, EXPLOSIVES, AND FREIGHT, ALL KINDS, SHIPPED ON GOVERNMENT BILLS OF LADING DURING 1948 AND 1949. THE OVERPAYMENTS AROSE BECAUSE THE CARRIER, IN COMPUTING THE TRANSPORTATION CHARGES, APPLIED THE MINIMUM WEIGHTS SPECIFIED IN CERTAIN QUOTATIONS TO SEPARATE TRUCKLOADS, WHEREAS OUR AUDIT ACTION IS BASED ON THE APPLICATION OF THE SPECIFIED MINIMUM WEIGHTS REGARDLESS OF THE NUMBER OF TRUCKS USED, THE WEIGHT OF THE ARTICLES TENDERED AT THE SAME TIME ON ONE BILL OF LADING BEING THE CONTROLLING FACTOR.

IN YOUR LETTER YOU URGE THAT SINCE THE TRANSPORTATION CONTRACT (QUOTATION) INVOLVED WAS NEGOTIATED BETWEEN THE CARRIER AND THE DEPARTMENT OF THE NAVY, THE LATTER SHOULD BE REQUESTED TO FURNISH AN ADMINISTRATIVE EXPRESSION OF OPINION AS TO THE MEANING OF THE WORD "SHIPMENT" IN THE MINIMUM WEIGHT PROVISION OF THE QUOTATION INVOLVED. HOWEVER, THE WORD "SHIPMENT" APPEARS TO HAVE A WELL SETTLED MEANING IN CONNECTION WITH TRANSPORTATION BY COMMON CARRIERS BY BOTH RAIL AND MOTOR, AND TO REQUIRE NO SPECIAL CONSTRUCTION. APPARENTLY, NO USEFUL PURPOSE WOULD BE SERVED INTENTION OF THE PARTIES IS TO BE DETERMINED FROM THE LANGUAGE USED IN THE INSTRUMENT (BUCHANAN V. SWIFT, 130 F.2D 483; ROBINSON V. BOWE, 73 F.2D 238), AND IF THE INSTRUMENT IS AMBIGUOUS BY REASON OF CONTRADICTORY OR APPARENTLY CONFLICTING PROVISIONS, IT SHOULD BE CONSTRUED MOST STRONGLY AGAINST THE PARTY WHO PREPARED IT. W. C. SHEPHERD CO. V. ROYAL INDEMNITY CO., 192 F.2D 710, 714; ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA V. SEVIER, 121 F.2D 650, 654.

YOUR POSITION THAT IT WAS ASSUMED BY THE PARTIES WHO ORIGINALLY NEGOTIATED THE SECTION 22 RATE QUOTATION INVOLVED THAT THE MINIMUM WEIGHT STIPULATED IN THE QUOTATION WAS INTENDED AS A TRUCKLOAD MINIMUM WEIGHT RATHER THAN A VOLUME MINIMUM WEIGHT WAS GIVEN CAREFUL CONSIDERATION AT THE TIME THE DECISION OF OCTOBER 19, 1954, WAS WRITTEN. SPECIFIC REFERENCE WAS MADE IN THE DECISION TO STATEMENTS REGARDING THE MATTER IN A LETTER DATED DECEMBER 4, 1952, WRITTEN BY J. L. LOW, PRESIDENT, ALFRED J. OLMO DRAYAGE COMPANY, WHO IDENTIFIED HIMSELF AS A COMMISSIONED OFFICER DURING "WORLD WAR II" AND LATER CIVILIAN CHIEF OF INLAND TRANSPORTATION, WESTERN SEA FRONTIER, UNITED STATES NAVY. FOR THE REASONS SET FORTH IN THAT DECISION, YOU WERE INFORMED THAT IT WAS CONCLUDED THAT NEITHER OF THE QUOTATIONS INVOLVED INDICATED THAT THE MINIMUM WEIGHTS SPECIFIED THEREIN WERE APPLICABLE ONLY TO ARTICLES LOADED IN ONE VEHICLE, OR THAT THE NAMED RATES WERE AVAILABLE ONLY IN THE EVENT SINGLE TRUCKS OR COMBINATION TRACTOR AND TRAILER UNITS WERE USED. THE QUESTION OF THE APPLICATION OF THE QUOTATIONS INVOLVED, INCLUDING THE OPINION OF THE PARTIES WHO NEGOTIATED THE QUOTATIONS, WAS FULLY CONSIDERED IN THE DECISION OF OCTOBER 19, 1954. SINCE YOUR LETTER OF AUGUST 2, 1956, CONTAINS NO MATERIAL INFORMATION OR FACTS WHICH HAVE NOT RECEIVED CAREFUL CONSIDERATION, THE CONCLUSION REACHED IN THAT DECISION MUST BE ADHERED TO. ..END :