B-162278, JUL. 23, 1968

B-162278, JUL. 23, 1968

TO PAN AMERICAN VAN LINES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 24, 1967, IN WHICH YOU REQUEST A REVIEW OF THE SETTLEMENTS (TK-855689 AND TK-855688) OF MAY 15 AND 26, 1967, DISALLOWING YOUR CLAIMS FOR ADDITIONAL CHARGES FOR TRANSPORTATION OF TWO SHIPMENTS OF OFFICE TYPE FURNITURE FROM FORT JAY, NEW YORK, TO FORT GEORGE G. MEADE, MARYLAND, IN DECEMBER 1965.

FOR SUCH TRANSPORTATION YOU ORIGINALLY BILLED AND WERE PAID PRIOR TO AUDIT BY OUR OFFICE, PURSUANT TO 49 U.S.C. 66, THE AMOUNT OF $496.50 ON THE SHIPMENT MOVING ON GOVERNMENT BILL OF LADING C-1196750 AND THE AMOUNT OF $529.50 ON THE SHIPMENT MOVING ON GOVERNMENT BILL OF LADING C-1196880. INCLUDED IN THE BILLING ON EACH SHIPMENT WAS A SO CALLED "SURCHARGE" IN THE AMOUNT OF $63 ALLEGEDLY ASSESSABLE UNDER ITEM 200, MOVERS' AND WAREHOUSEMEN'S ASSOCIATION OF AMERICA, INC. (M AND-WAA), MILITARY RATE TENDER ICC NO. 1-T.

UPON SUBSEQUENT AUDIT OF YOUR BILLS THE APPLICABLE CHARGES WERE COMPUTED UNDER YOUR SPECIAL RATE TENDER ICC NO. 48, DATED NOVEMBER 29, 1965, WHICH NAMED A RATE OF $1.73 PER HUNDREDWEIGHT ON A 20,000-POUND TRUCKLOAD MINIMUM WEIGHT BETWEEN "JERSEY CITY, NEW JERSEY AND 10 MILE AREA," TO ,LAUREL, MARYLAND, AND 20 MILE AREA.' IN VIEW OF THIS SPECIAL RATE TENDER, THE ADDITIONAL CHARGE NAMED IN ITEM 200 OF M-AND WAA MILITARY RATE TENDER NO. 1-T WAS DEEMED INAPPLICABLE, AND APPROPRIATE NOTICES OF OVERCHARGE WERE ISSUED BY OUR TRANSPORTATION DIVISION. UPON YOUR FAILURE TO MAKE REFUND, THE DEDUCTIONS WERE MADE FROM SUBSEQUENT BILLS.

THE SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING C-1196750 WAS PICKED UP ON DECEMBER 6, 1965, AND WAS DELIVERED AT DESTINATION ON DECEMBER 7, 1965. THE SHIPMENT WEIGHED ONLY 11,500 POUNDS, BUT THE BILL OF LADING CONTAINS AN ENTRY INDICATING THAT THE VEHICLE WAS FILLED TO CAPACITY. CONTAINED NO REQUEST FOR PREMIUM SERVICES, SUCH AS EXCLUSIVE USE OF VEHICLE OR SPECIAL MILITARY SERVICE, AND THERE ARE NO ENTRIES INDICATING THAT ANY SUCH SERVICE WAS FURNISHED OR THAT THE SHIPMENT MOVED UNDER SEAL. THE BILL OF LADING BEARS REFERENCE TO YOUR TENDER ICC NO. 36 AS SPECIAL RATE AUTHORITY.

THE SHIPMENT MOVING UNDER BILL OF LADING C-1196880 WEIGHED 15,880 POUNDS, WAS PICKED UP AT ORIGIN ON DECEMBER 13, 1965, AND WAS DELIVERED AT DESTINATION ON DECEMBER 14, 1965. THAT BILL OF LADING ALSO BEARS REFERENCE TO TENDER ICC NO. 36 AS SPECIAL RATE AUTHORITY AND THE INDICATION THAT THE VEHICLE WAS LOADED TO CAPACITY. THE BILL OF LADING BEARS SEAL NUMBERS, AND CONTAINS NO INDICATION THAT THE SEALS WERE NOT INTACT UPON ARRIVAL OF THE VEHICLE AT DESTINATION. NO OTHER INDICATION OF REQUEST FOR PREMIUM SERVICES, SUCH AS EXCLUSIVE USE OF VEHICLE SERVICE OR SPECIAL MILITARY SERVICE APPEARS.

ITEM 1 OF THE ATTACHMENT TO YOUR TENDER NO. 36 PROVIDES THAT WHEN SEALS ARE APPLIED BY THE SHIPPER OR SHIPPER'S AGENT, CHARGES WILL BE BASED ON ACTUAL WEIGHT SUBJECT TO A MINIMUM WEIGHT BASED ON SEVEN POUNDS PER CUBIC FOOT OF TOTAL VEHICLE SPACE. IT ALSO CONTAINS A PROVISION THAT IF THE VEHICLE WAS LOADED TO FULL VISIBLE CAPACITY CHARGES WILL BE BASED ON SEVEN POUNDS PER CUBIC FOOT. SINCE THE VEHICLES REQUESTED AND USED IN BOTH INSTANCES APPARENTLY WERE 40 FEET IN LENGTH, HAVING A CAPACITY OF 3,000 CUBIC FEET, IT APPEARS THAT AS TO THE SHIPMENT COVERED BY BILL OF LADING C -1196880 THERE WOULD BE AUTHORITY UNDER TENDER NO. 36 FOR COMPUTING THE CHARGES ON THE BASIS OF A CONSTRUCTIVE WEIGHT OF 21,000 POUNDS.

HOWEVER, ON NOVEMBER 29, 1965, ONLY ONE WEEK PRIOR TO THE FIRST OF THE MOVEMENTS, YOUR COMPANY SUBMITTED TENDER ICC NO. 48, NAMING A SPECIAL TRUCKLOAD RATE APPARENTLY DESIGNED TO COVER THE VERY SHIPMENTS HERE INVOLVED. TENDER NO. 48 PROVIDES A SPECIAL RATE OF $1.73 PER ONE HUNDRED POUNDS ON TRUCKLOAD SHIPMENTS, SUBJECT TO A 20,000-POUND TRUCKLOAD MINIMUM WEIGHT. TENDER NO. 48 CONTAINS NO PROVISION APPLYING A CONSTRUCTIVE WEIGHT ON SEALED VEHICLES OR ON VEHICLES LOADED TO CAPACITY. NOR DOES TENDER NO. 48 SPECIFICALLY PROVIDE THAT THE SHIPMENTS MADE THEREUNDER WILL BE SUBJECT TO ADDITIONAL TRANSPORTATION CHARGES PROVIDED IN OTHER PUBLICATIONS.

IT APPEARS TO BE YOUR CONTENTION, HOWEVER, THAT THE SHIPMENTS ARE SUBJECT TO THE SURCHARGE PROVIDED IN ITEM 200 OF MILITARY RATE TENDER NO. 1-T, BY REASON OF THE REFERENCE TO THAT TENDER IN ITEM 16 OF TENDER NO. 48, AS THE CONTROLLING PUBLICATION FOR DETERMINATION OF CHARGES FOR ,ACCESSORIAL SERVICES.' YOU MAINTAIN THAT THE SURCHARGE IS AN ACCESSORIAL CHARGE, AND SUBMIT COPIES OF OTHER QUOTATIONS PURPORTEDLY TO ESTABLISH THAT IT IS YOUR PRACTICE, IN MAKING SPECIAL RATE TENDERS, TO SPELL OUT IN ITEM 16 OF THE STANDARD QUOTATION FORM ANY INTENDED EXCEPTIONS TO ACCESSORIAL CHARGE PROVISIONS IN CONTROLLING PUBLICATIONS. IT IS OUR VIEW, HOWEVER, THAT TENDER NO. 48 MUST BE CONSTRUED AND APPLIED ACCORDING TO ITS PLAIN TENOR, WHATEVER YOUR PRACTICE OR INTENTION MAY HAVE BEEN. AND IT IS CLEAR THAT ITEM 200 DOES NOT PURPORT TO ESTABLISH CHARGES SPECIFICALLY FOR AN "ACCESSORIAL" SERVICE; ITS CAPTION READS: "ADDITIONAL TRANSPORTATION CHARGE.' IT IS DOUBTFUL THAT THE TERM "ACCESSORIAL SERVICE" SHOULD BE UNDERSTOOD AS COMPREHENDING SOMETHING MORE THAN A SERVICE RENDERED BY THE CARRIER IN ADDITION TO A TRANSPORTATION SERVICE, SUCH AS PACKING, STORAGE, EXTRA LABOR, ETC., THAT IS, SOMETHING EXTRA THAT A CARRIER DOES, NOT SOMETHING THAT HE DOES NOT DO. TENDER NO. 48 DOES NOT SPECIFICALLY AUTHORIZE THE APPLICATION OF THE SURCHARGE IN DISPUTE. ITEM 16 OF THE TENDER IS DEFINITELY LIMITED TO "ACCESSORIAL SERVICES" WHICH TERM IS NOT BROAD ENOUGH TO INCLUDE ALL THE ADDITIONAL CHARGES DESCRIBED IN SECTION II OF THE TENDER.

WE ARE OF THE VIEW THAT TENDER NO. 48 CONTAINS NO PROVISION WHICH, BY FAIR AND REASONABLE CONSTRUCTION, MAKES APPLICABLE ON THE INSTANT SHIPMENTS THE ADDITIONAL TRANSPORTATION CHARGE NAMED IN ITEM 200, M AND- WAA TENDER NO. 1-T. THE SETTLEMENTS INSOFAR AS THEY DISALLOW YOUR CLAIMS FOR CHARGES ON THE TWO SHIPMENTS UNDER THAT ITEM ARE CORRECT.

IT IS OBVIOUS ALSO THAT THE CONSTRUCTIVE WEIGHT BASIS SET FORTH IN ITEM 1 OF TENDER NO. 36 IS NOT A PART OF TENDER NO. 48. THE PAID CHARGES FOR TRANSPORTATION SERVICES ON THE TWO SHIPMENTS WERE COMPUTED ON THE BASIS OF A CONSTRUCTIVE MINIMUM WEIGHT FACTOR OF 21,000 POUNDS BASED ON SEVEN POUNDS PER CUBIC FOOT FOR THE 40-FOOT, 3,000-CUBIC FOOT VEHICLES ORDERED AND USED. IF IT WERE INTENDED THAT THE CONSTRUCTIVE WEIGHT BASIS BE APPLICABLE IT SEEMS REASONABLE TO CONCLUDE THAT AN ATTACHMENT SIMILAR TO THAT IN THE CASE OF TENDER NO. 36 WOULD BE MADE A PART OF THE TENDER.

WE ARE OF THE VIEW, THEREFORE, THAT THE APPLICABLE MINIMUM WEIGHT FACTOR ON THE SHIPMENTS IS THE 20,000-POUND TRUCKLOAD MINIMUM NAMED IN ITEM 12 OF TENDER NO. 48, AND THAT YOU HAVE BEEN OVERPAID IN THE AMOUNT OF $17.30 ON EACH OF THE SHIPMENTS. THE SETTLEMENTS ARE REVISED ACCORDINGLY, AND YOUR COMPANY SHOULD REFUND THE AMOUNT OF $34.60, IN ORDER TO AVOID COLLECTION BY OTHER MEANS.