B-152010, APR. 17, 1964

B-152010, APR. 17, 1964

TO HUGHES TRANSPORTATION, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1964, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF OCTOBER 30, 1963, B-152010, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $111.15 ADDITIONAL CHARGES ALLEGED TO BE DUE ON A SHIPMENT OF SMALL ARMS AMMUNITION FROM CHARLESTON, SOUTH CAROLINA, TO ST. JULIENS CREEK, PORTSMOUTH, VIRGINIA, UNDER GOVERNMENT BILLS OF LADING A-2661946 AND A 2661947, DATED AUGUST 19, 1961.

ITEMS 3D RATES AND 3F MINIMUM WEIGHTS, OF SECTION 22 TENDER 36 EFFECTIVE FEBRUARY 24, 1961, UNDER WHICH THE SHIPMENT MOVED, ARE SET OUT IN FULL IN OUR DECISION OF OCTOBER 30, 1963. ALSO, THE SERVICES RENDERED BY HUGHES TRANSPORTATION, INC. UNDER THE BILLS OF LADING ARE DESCRIBED THEREIN. SUCH MATTERS WILL NOT THEREFORE BE REPEATED HERE.

YOU CONTEND IN EFFECT THAT THE LANGUAGE "ONE GBL NOT TO COVER MORE THAN THREE LEGAL TRUCK OADS" AS CONTAINED IN ITEMS 3D AND 3F OF SECTION 22 RATE TENDER I.C.C.NO. 36, EFFECTIVE FEBRUARY 24, 1961, MAKES THE THREE TRUCKLOADS OF AMMUNITION SHIPPED UNDER GOVERNMENT BILL OF LADING A-2661946 A SHIPMENT SEPARATE AND DISTINCT FROM THE TRUCKLOAD OF AMMUNITION CARRIED UNDER GOVERNMENT BILL OF LADING A-2661947. WE THINK NOT. BILL OF LADING A-2661946 IS SPECIFICALLY ANNOTATED "TOTAL WEIGHT OF SHIPMENT 145,586 LBS. 36,368 LBS. COVERED BY GBL A-2661947," "PARTIALS 1-3 OR 4," AND BILL OF LADING A-2661947 IS ANNOTATED "TOTAL WEIGHT OF SHIPMENT 145,586 LBS. 109,218 COVERED BY GBL A-2661946," "PARTIAL 2 OF 4.' SUCH NOTATIONS SEEM TO MAKE CRYSTAL CLEAR THAT ONLY A SINGLE SHIPMENT WAS INVOLVED AND THE BILLS OF LADING SHOW THE FULL SHIPMENT WAS TENDERED BY ONE SHIPPER ON THE SAME DATE FOR DELIVERY TO ONE DESTINATION. IT IS THUS OUR VIEW THAT ONLY A SINGLE VOLUME SHIPMENT WAS CONTEMPLATED AND THAT THE SECOND BILL OF LADING WAS ISSUED TO CONFORM TO THE LANGUAGE REFERRED TO BY YOU "ONE GBL NOT TO COVER MORE THAN THREE LEGAL TRUCK LOADS.' SUCH LANGUAGE, REGARDLESS OF THE INTENT OF THE DRAFTSMAN, DOES NOT APPEAR TO AFFECT THE FREIGHT RATES TO BE CHARGED A VOLUME SHIPMENT WHICH ARE SPECIFICALLY SET FORTH IN THE QUOTATION. THE LANGUAGE SEEMS MERELY TO DIRECT THAT SEPARATE GOVERNMENT BILLS OF LADING SHOULD ISSUE FOR SHIPMENTS OF MORE THAN THREE TRUCKLOADS AND APPARENTLY TO COMPLY WITH THE DIRECTION TWO BILLS OF LADING WERE ISSUED FOR THE SHIPMENT. MOREOVER, THE COURTS HAVE HELD WHERE EXPRESSIONS IN A TARIFF ARE DOUBTFUL IN MEANING--- ARE AMBIGUOUS--- AS IN THIS INSTANCE, ALL REASONABLE DOUBTS MUST BE RESOLVED IN FAVOR OF THE SHIPPER. UNION WIRE ROPE CORP. V. ATCHISON, T. AND S.F. RY.CO., 66 F.2D 965; CERTIORARI DENIED 290 U.S. 686; UNITED STATES V. GULF REFINING CO., 268 U.S. 542, 546; SOUTHERN PACIFIC CO. V. LOTHROP, 15 F.2D 486, CERTIORARI DENIED 273 U.S. 742.

YOU ALSO STATE THAT "A PERUSAL OF SAID ITEM (ITEM 5 OF TENDER 36) FAILS TO SUPPORT THE THEORY THAT THE CLASSIFICATION HAS A BEARING IN THIS MATTER SINCE ITEM 5 REFERS TO THE CLASSIFICATION ONLY FOR PACKING SPECIFICATIONS.' WHILE IT IS TRUE THAT ITEM 5 IS HEADED "PACKING CIFICATIONS," THE LANGUAGE OF THAT ITEM READS IN PERTINENT PART "EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH, THE RATE/S) NAMED IN ITEM 3 ABOVE IS (ARE) SUBJECT TO ALL TERMS AND PROVISIONS OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-5; DANGEROUS ARTICLES TARIFF NO. 10; SMCRC TARIFF 517 -J. MF-ICC 1118; SUPPLEMENTS THERETO OR REISSUES.' SUCH LANGUAGE SEEMS TO MAKE THE RATES SUBJECT TO ALL THE PROVISIONS OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 5 INCLUDING THE DEFINITION OF "SHIPMENT" IN RULE 13 OF SUCH CLASSIFICATION QUOTED IN OUR DECISION OF OCTOBER 13, 1963.

ACCORDINGLY, AND AFTER A CAREFUL CONSIDERATION OF THE INFORMATION FURNISHED BY YOU, OUR DECISION OF OCTOBER 30, 1963, B-152010, IS AFFIRMED.