B-143491, NOV. 25, 1960

B-143491, NOV. 25, 1960

TO MASTEN TRANSPORTATION, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1960, WITH ENCLOSURES, REQUESTING A REVIEW OF OUR SETTLEMENT CERTIFICATE OF JUNE 23, 1960, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL CHARGES FOR GOVERNMENT PROPERTY MOVED FROM THE DOVER AIR FORCE BASE, DELAWARE, TO OLMSTED AIR FORCE BASE, MIDDLETOWN, PENNSYLVANIA.

THE RECORD SHOWS THAT THE SHIPMENTS WERE DESCRIBED ON THE FACE SHEET OF EACH BILL OF LADING AS ,FREIGHT ALL KINDS" AND WERE MOVED UNDER GOVERNMENT BILLS OF LADING NOS. AF-5116591 AND AF-5116516, DATED FEBRUARY 14 AND FEBRUARY 11, 1957, RESPECTIVELY. ON SHEET NO. 2 OF EACH BILL OF LADING THE ARTICLES SHIPPED WERE DESCRIBED SPECIFICALLY AS: PROPELLER BLADES, NOI, AGFT KD; STABILIZERS ACFT; ELEVATORS, ACFT; MACHINERY PARTS, NOT STEEL (CONE ASSY); INDICATOR TURN AND BANKS NOI; TANKS ALUMINUM SU; RUDDERS; HARDWARE, NOI, STEEL AND OTHERS; AILERON ACFT; LIFE RAFTS, PNEUMATIC; AND, DOORS. THE RECORD SHOWS ALSO THAT YOU ORIGINALLY CLAIMED AND WERE PAID $170.40 AS THE FREIGHT CHARGES ON EACH SHIPMENT. THE RATE USED IN COMPUTING THE CHARGES ON THESE SHIPMENTS WAS A COMMODITY RATE OF 71 CENTS PER 100 POUNDS NAMED IN ITEM NO. 80A OF SUPPLEMENT NO. 15 OF GOVERNMENT RATE SHEET NO. 840, MIDDLE ATLANTIC CONFERENCE, AGENT, AND A MINIMUM TRUCKLOAD WEIGHT OF 24,000 POUNDS. THIS RATE BECAME EFFECTIVE AUGUST 29, 1956, AND WAS APPLICABLE ON TRUCKLOAD SHIPMENTS OF "FREIGHT, ALL KINDS, IN MIXED SHIPMENTS, EXCEPT THOSE LISTED IN NOTE A HEREIN" MOVING ON UNITED STATES GOVERNMENT BILLS OF LADING BETWEEN DOVER AIR FORCE BASE, DELAWARE, AND MIDDLETOWN, PENNSYLVANIA. IN OUR AUDIT OF PAYMENT VOUCHER NO. 328012 DATED MARCH 14, 1957, WHICH COVERED THESE TWO BILLS OF LADING, IT WAS CONSIDERED THAT THE ACTUAL CHARGES SHOULD BE $123.44 ON THE FIRST BILL OF LADING AND $108.56 ON THE SECOND. THE CHARGES ON AIRCRAFT PARTS WERE COMPUTED ON THE BASIS OF A COMMODITY RATE OF 40 CENTS PER 100 POUNDS, MINIMUM WEIGHT 24,000 POUNDS, NAMED IN SUPPLEMENT NO. 6 TO GOVERNMENT RATE SHEET NO. 846, MIDDLE ATLANTIC CONFERENCE, AGENT, APPLICABLE ON TRUCKLOAD SHIPMENTS MOVING ON UNITED STATES GOVERNMENT BILLS OF LADING FROM DOVER AIR FORCE BASE, DELAWARE, TO MIDDLETOWN, PENNSYLVANIA. THE QUOTATION OFFERED THE 40 CENTS A 100 POUND RATE ON "ENGINES, INTERNAL COMBUSTION N.O.I., EACH ARTICLE RELEASED TO A VALUE NOT EXCEEDING $2.50 PER POUND. AIRCRAFT, ENGINE PARTS. AIRCRAFT ACCESSORIES.' THE APPLICATION OF THE 40 CENT RATE ON AIRCRAFT PARTS AND THE APPROPRIATE TRUCKLOAD CLASS AND ACTUAL WEIGHT RATE ON THE REMAINING ARTICLES, WAS COMPUTED TO HAVE RESULTED IN AN OVERPAYMENT OF $108.80 FOR WHICH A NOTICE OF OVERPAYMENT (USGAO FORM 1003) WAS ISSUED. SINCE YOU DID NOT REFUND SUCH AMOUNT, IT WAS COLLECTED BY ADMINISTRATIVE DEDUCTION FROM FUNDS OTHERWISE PAYABLE TO YOU.

YOU NOW CONTEND THAT THE INITIAL CHARGES ON BOTH SHIPMENTS WERE CORRECT AND PROPERLY RATED UNDER GOVERNMENT RATE SHEET NO. 840. TO SUPPORT YOUR POSITION YOU STATE THAT GOVERNMENT RATE SHEET NO. 846 DOES NOT APPLY TO AIRCRAFT PARTS BUT COVERS "ENGINES, OR AIRCRAFT ENGINE PARTS, OR AIRCRAFT ACCESSORIES.' IT APPEARS THAT THE SOLE ISSUE HERE IS THE INTERPRETATION OF THE COMMODITY LISTED IN THE QUOTATION AS "AIRCRAFT, ENGINE PARTS.' YOU IN EFFECT CONTEND THE QUOTATION SHOULD BE CONSTRUED AS IF THE COMMA AFTER THE WORK "AIRCRAFT" HAD BEEN OMITTED.

TARIFFS ARE INTERPRETED IN MUCH THE SAME WAY AS OTHER CONTRACTS AND STATUTES. AMBIGUITIES ARE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. THE SHIPPER IS ENTITLED TO THE LOWEST PUBLISHED RATE PROPERLY COVERING HIS SHIPMENT. WILLINGHAM V. SELIGMAN, 179 F.2D 257. ASCERTAIN THE TRUE MEANING OF "AIRCRAFT, ENGINE PARTS," IN THE QUOTATION WE HAVE EXAMINED THE BASIC GOVERNMENT RATE SHEET NO. 846 AND ITS SUPPLEMENTS. WE FIND THAT THE COMMODITY "AIRCRAFT PARTS" HAS BEEN SPECIFICALLY LISTED AS SUCH UNTIL SUPPLEMENT NO. 6 WAS ISSUED. THIS FACT SEEMS TO INDICATE THAT THE RATE OF 40 CENTS WAS INTENDED FOR APPLICATION TO BOTH AIRCRAFT PARTS AND ENGINE PARTS, THE COMMA BEING INSERTED IN LIEU OF REPEATING THE WORD "PARTS" AFTER THE WORD "AIRCRAFT.' AT LEAST THE LANGUAGE AND PUNCTUATION USED CREATE AN AMBIGUITY WHICH WE FEEL MUST BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER, SINCE THE WRITING DOES NOT CLEARLY ESTABLISH A LIMITED APPLICATION OF 40 CENTS PER 100 POUNDS TO "AIRCRAFT ENGINE PARTS" ONLY. IT SEEMS THEREFORE THAT A PROPER INTERPRETATION OF THE TARIFF WOULD MAKE THE RATE OF 40 CENTS PER 100 POUNDS APPLICABLE TO "AIRCRAFT PARTS," TRANSPORTED IN BOTH SHIPMENTS. IN VIEW OF AMBIGUITY CONTAINED IN THE TARIFF, THE LOWER CHARGES APPEAR TO BE APPLICABLE TO AIRCRAFT PARTS SUCH AS: STABILIZERS, RUDDERS, PROPELLER BLADES, AILERONS, ELEVATORS, INDICATORS AND DOORS.' THE REMAINING ARTICLES CONSISTING OF HARDWARE, NOI, PNEUMATIC LIFE RAFTS, AND MACHINERY PARTS NOI, STEEL, WERE RATED AT THE APPLICABLE TRUCKLOAD CLASS RATES AND ACTUAL WEIGHTS. THE ALUMINUM TANKS, SU, WERE RATED AT THE ANY QUANTITY CLASS RATE AND ACTUAL WEIGHT IN ACCORDANCE WITH THE RATES PUBLISHED IN THE MIDDLE ATLANTIC CONFERENCE, AGENT, FREIGHT TARIFF NO. 7-F, MF-I.C.C. NO. A -724. THE DEFICIT IN THE MINIMUM WEIGHT OF EACH SHIPMENT WAS CHARGED AT THE LOWEST TRUCKLOAD RATE OF 40 CENTS PER 100 POUNDS AUTHORIZED BY SECTION A, RULE 2, OF MIDDLE ATLANTIC CONFERENCE, AGENT, FREIGHT TARIFF NO. 10-L, MF-I.C.C. NO. 800. UNDER BILL OF LADING NO. AF-5116516 IT APPEARS THAT THE TOTAL WEIGHT OF "ELEVATORS AGFT," AS SHOWN ON THE FORM 1003, SHOULD HAVE BEEN SHOWN AS 3,280 POUNDS INSTEAD OF 2,790 POUNDS. THE CHANGE WOULD INCREASE THE TOTAL ALLOWABLE CHARGES ON THIS SHIPMENT FROM $108.56 TO $109.32.

ACCORDINGLY, OUR SETTLEMENT ACTION OF JUNE 23, 1960, IS SUSTAINED WITH THE EXCEPTION THAT AN ADJUSTMENT OF 76 CENTS WILL BE MADE UNDER GOVERNMENT BILL OF LADING NO. AF-5116516. SETTLEMENT FOR SUCH AMOUNT, IF OTHERWISE PROPER, SHOULD BE RECEIVED BY YOU IN DUE COURSE.