B-122653, FEB. 6, 1956

B-122653, FEB. 6, 1956

TO ROBERT C. RICE, ASSISTANT MANAGER, BOLIN DRIVE-A-WAY COMPANY:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTERS WHICH, IN EFFECT, SEEK REVIEW OF THE SETTLEMENTS WHEREBY OUR TRANSPORTATION DIVISION DISALLOWED YOUR CLAIMS FOR CHARGES ADDITIONAL TO THE AMOUNTS ALREADY PAID YOU FOR DRIVEAWAY SERVICE ACCORDED GOVERNMENT-OWNED VEHICLES IN 1951.

TYPICAL OF THESE IS YOUR CLAIM, BY BILL 26306 ETC., FOR AN ADDITIONAL AMOUNT OF $187.20, ALLEGED TO BE DUE IN CONNECTION WITH BILLS OF LADING WV -6330164 THROUGH WV-6330176, WHICH WAS DISALLOWED IN OUR SETTLEMENT OF JULY 29, 1953, IN CLAIM TK 442038. EACH OF THESE BILLS OF LADING COVERED TWO 2 1/2 TON 6 BY 6 M44 SERIES MILITARY TRUCKS, EQUIPPED WITH AUTOMATIC TRANSMISSIONS, WHICH WERE PURCHASED BY THE DEPARTMENT OF THE ARMY FROM THE STUDEBAKER CORPORATION AND TRANSPORTED IN DRIVEAWAY SERVICE FROM SOUTH BEND, INDIANA, TO CARTERET, NEW JERSEY, AND TACONY, PENNSYLVANIA. FOR THIS SERVICE, YOU ORIGINALLY CLAIMED AND WERE PAID $3,686.80, DETERMINED BY USE OF THE RATE PROVIDED IN NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION TARIFF 94-B, M.F.-I.C.C. NO. 210, PLUS A CHARGE OF ONE CENT PER MILE FOR THE SECOND REAR WHEEL DRIVING AXLE OF EACH VEHICLE, AS PROVIDED IN ITEM 320-B OF SUPPLEMENT 4 TO TARIFF 94-B. THEREAFTER, YOU CLAIMED AN ADDITIONAL ONE CENT PER MILE FOR THE FRONT WHEEL DRIVING AXLE OF EACH VEHICLE, CITING ITEM 320-B AS YOUR AUTHORITY, AND THE DISALLOWANCE COMPLAINED OF FOLLOWED. OUR CONCLUSION AS TO THIS CLAIM APPLIES WITH EQUAL FORCE TO ALL OF YOUR CLAIMS ON THE SAME SUBJECT MATTER.

ITEM 320-B OF SUPPLEMENT 4 TO TARIFF 94-B, EFFECTIVE MAY 19, 1951, PROVIDES THAT VEHICLES EQUIPPED WITH MORE THAN ONE DRIVING AXLE WILL BE SUBJECTED TO AN ADDITIONAL CHARGE OF ONE CENT PER MILE FOR EACH DRIVING AXLE IN EXCESS OF ONE,"WHICH CHARGE SHALL NOT APPLY ON FRONT AXLE WHICH CAN BE DISENGAGED.' APPARENTLY IT IS YOUR POSITION THAT AN AUTOMATICALLY CONTROLLED FRONT WHEEL DRIVING AXLE IS NOT ONE "WHICH CAN BE DISENGAGED WITHIN THE MEANING OF THE QUOTED CLAUSE.

A RATE TARIFF IS IN ESSENCE A STATEMENT BY THE CARRIER TO POSSIBLE SHIPPERS THAT IT WILL FURNISH CERTAIN SERVICES UNDER CERTAIN CONDITIONS FOR A CERTAIN PRICE. UNITED STATES V. INTERSTATE COMMERCE COMMISSION, 198 F.2D 958, CERTIORARI DENIED, 344 U.S. 893. THE CARRIERS PARTIES TO TARIFF 94-B AND ITEM 320-B OF SUPPLEMENT 4 THERETO STATE THAT THEY WILL FURNISH DRIVEAWAY SERVICE FOR A PRICE WHICH DOES NOT INCLUDE AN ADDITIONAL CHARGE FOR THE FRONT WHEEL DRIVING AXLE IF IT IS AN AXLE "WHICH CAN BE DISENGAGED.' IN ORDER TO DETERMINE WHETHER THESE VEHICLES MET THE CONDITION OF THE TARIFF, IT IS FIRST NECESSARY TO CONSTRUE THE PHRASE "WHICH CAN BE DISENGAGED," AS IT APPEARS IN THE CONTEXT OF ITEM 320-B. IT IS FUNDAMENTAL TRANSPORTATION LAW THAT A TARIFF, LIKE A STATUTE, IS TO BE CONSTRUED ACCORDING TO THE MEANING WHICH THE WORDS USED MIGHT REASONABLY CARRY TO THE SHIPPERS TO WHOM THEY ARE ADDRESSED. IF ANY AMBIGUITY OR REASONABLE DOUBT AS TO THEIR MEANING EXISTS, IT IS TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPERS. UNITED STATES V. MISSOURI- KANSAS-TEXAS R. CO., 194 F.2D 777. SEE ALSO CHICAGO RAWHIDE MFG. CO. V. LONG TRANSPORTATION CO., 48 M.C.C. 646, 650-651. THERE IS NO AMBIGUITY IN THE PHRASEOLOGY OF ITEM 320-B AND THE PLAIN MEANING OF THE WORDS USED APPEARS TO LEAVE NO ROOM FOR A REASONABLE DOUBT AS TO WHAT THEY WERE INTENDED TO CONVEY. THE ITEM PROVIDES FOR AN ADDITIONAL CHARGE FOR EACH ADDITIONAL DRIVING AXLE, PRESUMABLY AS COMPENSATION FOR THE ADDITIONAL POWER REQUIRED. EXCEPTED FROM THIS CHARGE IS A FRONT WHEEL DRIVING AXLE "WHICH CAN BE DISENGAGED.' DISENGAGEMENT, WHEN USED IN THIS CONNECTION, SEEMS TO MEAN THE INTERRUPTION OF THE MECHANICAL CONNECTION BETWEEN THE ENGINE AND THE AXLE SO AS TO PREVENT THE DELIVERY OF POWER FROM THE ENGINE TO THE AXLE. THUS THE DESCRIPTIVE PHRASE "WHICH CAN BE DISENGAGED" REQUIRES THAT THE AXLE TO WHICH IT REFERS MUST BE CAPABLE OF HAVING THE DELIVERY OF POWER TO IT CUT OFF.

THE DEPARTMENT OF THE ARMY HAS ADVISED US THAT THESE VEHICLES WERE 6- WHEEL DRIVES (TWO REAR WHEEL DRIVING AXLES AND ONE FRONT WHEEL DRIVING AXLE), EQUIPPED WITH AUTOMATIC TRANSMISSIONS. DURING NORMAL OPERATION, AN OVERRUNNING SPRAG CLUTCH ON THE DRIVE TO THE FRONT AXLE AUTOMATICALLY ELIMINATED THE DELIVERY OF POWER TO THE FRONT AXLE, AND THE FRONT WHEELS RAN FREE. ONLY WHEN REAR WHEEL SLIPPAGE RESULTED FROM ABNORMAL SURFACE CONDITIONS SUCH AS MUD, SNOW, OR ICE WAS THERE AN AUTOMATIC ENGAGEMENT PERMITTING A FLOW OF POWER TO THE FRONT AXLE. THUS THESE VEHICLES SEEM TO HAVE MET THE CONDITION OF THE TARIFF WHICH EXCEPTED PAYMENT OF THE ADDITIONAL CHARGE ON A FRONT WHEEL DRIVING AXLE "WHICH CAN BE DISENGAGED.'

YOUR CONSTRUCTION OF ITEM 320-B AS BEING INAPPLICABLE TO VEHICLES WITH AUTOMATICALLY CONTROLLED FRONT AXLES REQUIRES READING INTO THE ITEM THE LIMITATION THAT THE AXLES MUST BE CAPABLE OF MANUAL DISENGAGEMENT. IT IS AXIOMATIC, HOWEVER, THAT WORDS MAY NOT BE READ INTO A TARIFF WHICH ARE NOT THERE AND WHICH ARE NOT REQUIRED BY A REASONABLE INTERPRETATION. NEITHER CARRIERS NOR SHIPPERS ARE PERMITTED TO URGE FOR THEIR OWN USE A STRAINED OR UNNATURAL TARIFF CONSTRUCTION. WILLARD STORAGE BATTERY COMPANY V. ASSOCIATED TRANSPORT, 49 M.C.C. 536, 358; GENERAL MOTORS CORP. V. HANSON MOTOR EXPRESS, INC., 54 M.C.C. 9, 12. ITEM 320-B WAS PUBLISHED TO BE EFFECTIVE MAY 19, 1951, AT A TIME WHEN AUTOMATIC TRANSMISSION HAD BEEN IN SUCCESSFUL OPERATION FOR SOME YEARS AND WERE IN WIDESPREAD USE. AS A MATTER OF FACT, THE DEPARTMENT OF THE ARMY HAS INFORMED US THAT ALL OF THE 2 1/2 TON 6 BY 6 VEHICLES IT PURCHASED FROM THE STUDEBAKER CORPORATION DURING AND AFTER 1951 WERE EQUIPPED WITH AUTOMATIC TRANSMISSIONS. THE FRAMERS OF ITEM 320-B MUST HAVE BEEN AWARE OF THE EXISTENCE AND USE OF SUCH TRANSMISSIONS; HAD THEY WISHED TO DO SO, THEY COULD HAVE PHRASED THE DISPUTED CLAUSE SO AS TO LIMIT ITS APPLICATION ONLY TO FRONT WHEEL DRIVING AXLES CAPABLE OF MANUAL DISENGAGEMENT. THIS THEY DID NOT DO. THE CLAUSE CONTAINS NO LIMITATION WHATEVER; IT DOES NOT SPECIFY THE MEANS, EITHER AUTOMATIC OR MANUAL, BY WHICH FLOW OF POWER IS TO BE TERMINATED, NOR DOES IT SPECIFY THAT THE DISENGAGEMENT MUST EXIST AT ALL TIMES, OR AT ANY PARTICULAR TIME, DURING THE COURSE OF THE DRIVEAWAY SERVICE. IN THE ABSENCE OF ANY WORDS OF LIMITATION, TO CONTROVERT THE PLAIN MEANING OF THE PHRASE "WHICH CAN BE DISENGAGED" IN FAVOR OF THE INTERPRETATION YOU URGE WOULD DISCRIMINATE BETWEEN VEHICLES PRESUMABLY REQUIRING THE SAME SERVICE SOLELY BECAUSE THE TRANSMISSION OF ONE IS DRIVER CONTROLLED AND OF THE OTHER IS AUTOMATICALLY CONTROLLED. THE PROVISIONS OF A RATE TARIFF FILED WITH THE INTERSTATE COMMERCE COMMISSION, AS PUBLISHED, ARE BINDING UPON BOTH SHIPPER AND CARRIER AS A MATTER OF LAW, BUT IT IS NOT TO BE READ IN A MANNER WHICH WOULD LEAD TO AN UNJUST OR ABSURD CONCLUSION. GLICKFELD V. HOWARD VAN LINES, 213 F.2D 723.

THE SETTLEMENT OF JULY 29, 1953, IN CLAIM TK 442038, WAS CONSISTENT WITH THE FOREGOING AND IT IS SUSTAINED.