B-125728, JULY 8, 1957, 37 COMP. GEN. 4

B-125728, JULY 8, 1957, 37 COMP. GEN. 4

AIRCRAFT - CHARTERS - FERRY CHARGES - DEFINITIONS IN OTHER TARIFFS IN THE DETERMINATION OF FERRY MILEAGE CLAIMS ON CHARTER AIR MOVEMENTS FOR THE MILITARY AGENCIES, THE MEANING OF THE TERMS "FERRY MILEAGE," "FERRY FLIGHT," OR "FERRY," USED BUT NOT DEFINED IN AN AIRLINE CHARTER TARIFF, MAY BE DETERMINED FROM DEFINITIONS USED IN THE TARIFFS OF OTHER AIR CARRIERS OPERATING CHARTER SERVICES.

TO REXFORD E. BRUNO, UNITED AIR LINES, INC., JULY 8, 1957:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1957, AND OUR ACKNOWLEDGMENT THEREOF ON JUNE 25, 1957, CONCERNING THE DISPUTED FERRY MILEAGE CLAIMS ON CERTAIN CHARTER AIR MOVEMENTS DURING 1951 AND 1952.

WITH YOUR LETTER OF NOVEMBER 16, 1956, YOU ENCLOSED A COPY OF AN OPINION FROM YOUR LEGAL DEPARTMENT, APPARENTLY IN REPLY TO A REQUEST WHICH YOU MADE FOR A REVIEW OF OUR DECISION OF JULY 26, 1956, 36 COMP. GEN. 66, IN WHICH WE EXPLAINED WHY WE BELIEVED THAT THE AUDIT ACTION BY OUR TRANSPORTATION DIVISION WAS PROPER IN THE DISALLOWANCE OF YOUR CLAIMS FOR FERRY MILEAGE ON SOME FORTY-ONE CAMS.

WE HAVE STUDIED THE OPINION OF YOUR LEGAL DIVISION AND HAVE NOTED ITS COMMENTS ON CERTAIN PORTIONS OF OUR LETTER OF JULY 26, 1956, ESPECIALLY THAT PORTION DEALING WITH RULE 14 (C) OF THE UNITED AIR LINES, INC., PASSENGER CHARTER TARIFF NO. 4, C.A.B. NO. 19, WHICH IS ALLEGED BY YOU TO AUTHORIZE THE USE BY YOUR COMPANY OF UNNEEDED OR UNUSED SPACE ON THE FERRY FLIGHT OF A CHARTER PLANE. THE ITEM IN QUESTION READS AS FOLLOWS:

14. BAGGAGE

(C) UNUSED SPACE: UAL RESERVES THE RIGHT TO USE ANY CARGO AND/OR STORAGE SPACE WITHOUT CHARGE ON THE CHARTER PLANE WHICH IS NOT NEEDED OR USED BY THE CHARTERER OR THE CHARTER PASSENGERS. ( ITALICS SUPPLIED.)

WE HAVE UNDERLINED CERTAIN WORDS IN THE TEXT OF THIS RULE BECAUSE THEY ARE INCLUDED IN THE LIST OF TERMS DEFINED IN RULE 1 OF THIS TARIFF, AS FOLLOWS:

1. DEFINITIONS:

AS USED IN THIS TARIFF, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(A) CHARTERER: THE TERM "CHARTERER" MEANS A PERSON, FIRM, CORPORATION, ASSOCIATION, PARTNERSHIP, OR BODY POLITIC WHO, AT CHARGES INDICATED HEREIN, HAS ACQUIRED THE USE OF A CHARTER PLANE FOR TRAVEL TO A SPECIFIED DESTINATION OR FOR A PARTICULAR ITINERARY AGREED UPON IN ADVANCE.

(B) CHARTER FLIGHT: THE TERM "CHARTER FLIGHT" MEANS COMMON CARRIAGE TRANSPORTATION AND INCIDENTAL SERVICES FURNISHED BY UAL IN A CHARTER PLANE BEGINNING AT THE TIME THE CHARTER PLANE IS FURNISHED THE CHARTERER FOR USE AT POINT OF ORIGIN AND ENDING WITH THE FINAL DISCHARGE AT POINT OF DESTINATION.

(C) CHARTER PASSENGER: THE TERM "CHARTER PASSENGER" MEANS ANY PERSON CARRIED ON A CHARTER FLIGHT.

(D) CHARTER PLANE: THE TERM "CHARTER PLANE" MEANS AN AIRPLANE FURNISHED AND OPERATED BY UAL EXPRESSLY FOR A CHARTERER.

AFTER QUOTING THE LANGUAGE OF RULE 14 (C), YOUR LEGAL DIVISION STATES:

QUITE OBVIOUSLY, RULE 14 ADEQUATELY RESERVES THE RIGHT TO UNITED TO TRANSPORT CARGO ON ANY PORTION OF THE CHARTER FLIGHT, WHETHER "LIVE" OR "FERRY.' ( ITALICS SUPPLIED.)

BY REFERENCE TO THE DEFINITION OF "CHARTER FLIGHT," AS PUBLISHED IN RULE 1 (B), THE TERM ,CHARTER FLIGHT" USED IN THE TARIFF DOES NOT INCLUDE ANY PORTION OF THE FERRY FLIGHT, SINCE THE ,CHARTER FLIGHT" BEGINS "AT THE TIME THE CHARTER PLANE IS FURNISHED THE CHARTERER FOR USE AT POINT OF ORIGIN AND ENDING WITH THE FINAL DISCHARGE AT POINT OF DESTINATION.' DESPITE THE EXCEPTION TAKEN TO THAT PORTION OF OUR DECISION IN WHICH WE QUOTED DEFINITIONS FROM OTHER TARIFFS TO SHOW THE MEANING OF "FERRY MILEAGE" OR "FERRY FLIGHT," AS USED IN THE INDUSTRY, THE FACT REMAINS THAT THESE TERMS ARE NOT DEFINED IN UNITED AIR LINES, INC., PASSENGER CHARTER TARIFF NO. 4. "FERRY CHARGE" IS DEFINED IN RULE 1 (G) AS "THE CHARGE IMPOSED BY UAL FOR MOVING THE CHARTER PLANE TO THE POINT OF ORIGIN OF THE CHARTER FLIGHT OR FROM THE POINT OF DESTINATION OF THE CHARTER FLIGHT OR THE POINT OF TERMINATION OF THE CHARTER FLIGHT, AS THE REQUEST OF THE CHARTERER, TO ANY AGREED POINT.' THIS DEFINITION, HOWEVER, DOES NOT DEFINE THE TERMS "FERRY" OR "FERRY CHARGE" CLEARLY ENOUGH TO SHOW WHAT SUCH TERMS MEAN WHEN USED IN RULE 18 (B) ON FOURTH REVISED PAGE 17 OF THE TARIFF, WHICH EXPLAINS HOW THE FARES AND CHARGES SHALL BE COMPUTED.

IT IS A FUNDAMENTAL RULE OF TARIFF CONSTRUCTION THAT ALL PROVISIONS OF TARIFFS MUST BE STATED IN PLAIN AND UNAMBIGUOUS TERMS. AS STATED BY THE CIVIL AERONAUTICS BOARD, IN DOCKET NO. 1705, ET AL., INVESTIGATION OF ACCUMULATION, ASSEMBLY, AND DISTRIBUTION RULES, DECIDED SEPTEMBER 14, 1950, 12 C.A.B. 337 AT PAGE 343:

IT IS A BASIC PRINCIPLE OF TARIFF CONSTRUCTION THAT TARIFF PROVISIONS SHOULD BE SO FRAMED AS TO ADMIT OF NO UNCERTAINTY OR AMBIGUITY IN THEIR APPLICATION.

IN ITS REGULATIONS DEALING WITH TARIFFS OF AIR CARRIERS, THE CIVIL AERONAUTICS BOARD HAS PROVIDED IN A NUMBER OF INSTANCES THAT TARIFF PROVISIONS MUST BE STATED IN CLEAR AND UNAMBIGUOUS TERMS. FOR EXAMPLE, IN TITLE 14, CODE OF FEDERAL REGULATIONS, PART 221.4, CONTENTS OF TARIFFS, THE BOARD SAID, IN PARAGRAPH (F), THAT TARIFFS SHOULD CONTAIN " SUCH EXPLANATORY STATEMENTS AS MAY BE NECESSARY TO REMOVE ALL DOUBT AS TO THE PROPER APPLICATION OF THE RATES AND RULES CONTAINED IN THE TARIFF.' AGAIN, IN PART 221.5, STATEMENT OF RATES, PARAGRAPH (B), THE BOARD SAID: " ALL RATES SHALL BE CLEARLY AND EXPLICITLY STATED * * *.' IN EASTERN AIR LINE REROUTING RULE CASE, DECIDED APRIL 18, 1950, 11 C.A.B. 278, AT PAGE 281, THE CIVIL AERONAUTICS BOARD SAID:

TARIFFS ARE FOR THE BENEFIT OF THE TRAVELING AND SHIPPING PUBLIC AND THEREFORE SHOULD BE WRITTEN IN CLEAR, UNMISTAKABLE LANGUAGE. (5) THEY SHOULD BE CONSTRUED ACCORDING TO THEIR LANGUAGE, AND THE INTENTION OF THE FRAMERS OR ARBITRARY PRACTICES OF THE CARRIERS PARTIES THERETO ARE NOT REGARDED AS AUTHORITATIVE CONSTRUCTION THEREOF. (6)

EXPLANATION OF FOOTNOTES:

(5) NEWTON GUM CO. V. C.B. AND Q.R.R. CO., 16 I.C.C. 341 (1909).

(6) SOUTHERN PACIFIC CO. V. LOTHROP, 15 F.2D 486 ( C.C.A., 9TH 1926) CERT. DENIED LOTHROP V. SOUTHERN PACIFIC CO., 278 U.S. 742(1927); T. A. BRYSON AND SONS V. PENNSYLVANIA R. CO., 253 I.C.C. 320 (1942).

IN VIEW OF THE AUTHORITIES CITED ABOVE, WE ARE UNABLE TO AGREE WITH YOUR LEGAL DIVISION THAT RULE 14 (C) OF UNITED'S CHARTER TARIFF NO. 4 AUTHORIZES THE USE OF SPACE IN THE MANNER IT WAS USED IN THE SUBJECT 41 CHARTER MOVEMENTS; NEITHER CAN WE AGREE THAT THERE IS NOTHING AMBIGUOUS ABOUT THE PROVISIONS OF RULE 14 (C). THE FACT THAT THE LANGUAGE OF THE CITED RULE 14 (C) WAS CHANGED BY ST REVISED PAGE 15 OF C.A.B. NO. 19, EFFECTIVE JANUARY 1, 1954, SO THAT THEREAFTER IT WAS PROVIDED THAT " THE CHARTERER WILL GRANT UAL THE RIGHT" IN LIEU OF THE EARLIER LANGUAGE THAT " UAL RESERVES THE RIGHT" SEEMS TO INDICATE THAT SOME DOUBT MAY HAVE EXISTED AS TO THE MEANING OF THIS RULE. EVEN AS AMENDED, THE RULE SEEMS TO REFER ONLY TO UNNEEDED OR UNUSED SPACE ON THE CHARTER PLANE DURING THE CHARTER FLIGHT, AFTER THE PASSENGERS AND THEIR BAGGAGE, OR THE PROPERTY TO BE CARRIED ON THE CHARTER PLANE, HAVE BEEN LOADED ABOARD THE PLANE AT THE POINT OF ORIGIN OF THE CHARTER FLIGHT. TO INTERPRET THE RULE AS PERTAINING TO UNNEEDED OR UNUSED SPACE ON THE PLANE DURING THE FERRY FLIGHT WOULD BE AN ADMISSION ON THE PART OF THE CARRIER THAT THE CHARTERER HAD THE RIGHT TO USE ANY PART OR ALL OF THE AVAILABLE SPACE ON A PLANE DURING THE FERRY FLIGHT. IF SUCH A CONSTRUCTION BE INDULGED, IT LOGICALLY FOLLOWS THAT A CHARTERER WHO ENGAGED A PLANE TO TRANSPORT PASSENGERS FROM SEATTLE, WASHINGTON, TO NEWARK, NEW JERSEY, WOULD ALSO ACQUIRE THE RIGHT TO LOAD PASSENGERS, OR CARGO, OR BOTH, ABOARD THE CHARTER PLANE AT SAN FRANCISCO FOR THE TRANSPORTATION OF SUCH PASSENGERS OR CARGO TO SEATTLE AT THE FERRY RATE PER MILE, IN THE EVENT IT WAS NECESSARY TO FERRY THE PLANE FROM SAN FRANCISCO TO SEATTLE IN ORDER TO PERFORM THE CHARTER SERVICE FROM SEATTLE TO NEWARK. CERTAINLY IT CANNOT BE CONTENDED THAT THIS WAS INTENDED WHEN THE CARRIER'S TARIFF WAS DESIGNED, AND WE KNOW OF NO OTHER INSTANCE IN WHICH SUCH A CONSTRUCTION HAS BEEN URGED.

UNTIL THESE DISPUTED FERRY MILEAGE CLAIMS WERE CALLED TO OUR ATTENTION, WE HAD NO OCCASION TO EXAMINE THE RULES OF UNITED'S CHARTER TARIFF NO. 4. IN THE ABSENCE THEREIN OF A DEFINITION OF THE TERMS "FERRY MILEAGE" OR "FERRY FLIGHT," OR OF THE WORD "FERRY" WHEN USED IN THIS TARIFF, IT SEEMS FITTING AND PROPER TO RESORT TO THE DEFINITION OF SUCH TERMS SHOWN IN OTHER CHARTER TARIFFS ON FILE WITH THE CIVIL AERONAUTICS BOARD, IN ORDER TO ARRIVE AT THE MEANING OF SUCH TERMS, AS USED IN THE INDUSTRY. FURTHERMORE, THE LANGUAGE USED IN RULE 18 OF UAL CHARTER TARIFF NO. 4, C.A.B. NO. 19, WITH RESPECT TO THE COMPUTATION OF FARES AND CHARGES SEEMS TO REQUIRE THE CONCLUSION THAT THE TERMS "FERRY MILEAGE" OR "FERRY FLIGHT" MEAN MILEAGES OR FLIGHTS PERFORMED INCIDENTAL TO THE LIVE OR LOADED FLIGHTS OF CHARTER PLANES. RULE 18 (B) (1) (A) STATES THAT "FERRY CHARGES SHALL BE ASSESSED BY UAL (A) WHEN A CHARTER PLANE OF THE TYPE REQUESTED BY THE CHARTERER IS NOT AVAILABLE AT THE POINT OF ORIGIN OF THE CHARTER FLIGHT AND UAL MUST FERRY SUCH CHARTER PLANE TO THE POINT OF ORIGIN OF THE CHARTER FLIGHT.' A PLANE OF THE TYPE REQUESTED BY THE CHARTERER, IF FLOWN TO THE POINT OF ORIGIN OF THE CHARTER FLIGHT AS A SECOND SECTION OF A REGULARLY SCHEDULED FLIGHT, OR IF FLOWN THERE IN REVENUE SERVICE OF ANY KIND, WHETHER FULLY OR PARTIALLY LOADED, WOULD NOT BE A PLANE "FERRIED" TO THAT POINT WITHIN THE USUAL MEANING OF THE TERM "FERRY," AS USED IN THE TRADE. THUS, IT SEEMS THAT SUCH A PLANE FLOWN TO THE POINT OF ORIGIN IN REVENUE SERVICE COULD NOT BE SAID TO HAVE BEEN FLOWN THERE EXPRESSLY OR EXCLUSIVELY FOR THE BENEFIT OF THE CHARTERER. IN FACT, IF IT ARRIVED AT THE POINT OF ORIGIN OF THE CHARTER FLIGHT IN REVENUE SERVICE IT WOULD BE AVAILABLE AT THAT POINT, AND THE NECESSITY FOR A FERRY FLIGHT PRIOR TO THE PERFORMANCE OF THE CHARTER FLIGHT AGREED UPON IS NOT APPARENT, INSOFAR AS THE COMPUTATION OF FARES AND CHARGES FOR THE SUBSEQUENT CHARTER SERVICE IS CONCERNED.

IN THE CIRCUMSTANCES, THE CONCLUSION REACHED IN OUR PRIOR CONSIDERATION OF THIS DISPUTE, AS EXPRESSED IN OUR LETTER OF JULY 26, 1956, SEEMS PROPER, AND THE AUDIT ACTION OF OUR TRANSPORTATION DIVISION WAS CORRECT IN NOT ALLOWING CREDIT FOR PAYMENT OF FERRY MILEAGE WHEN THE RECORD INDICATED THAT THE PLANS IN QUESTION WERE FLOWN TO OR FROM THE POINTS OF ORIGIN OR DESTINATION OF THE CHARTER FLIGHTS IN REVENUE SERVICE.

WE HAVE EXAMINED THE RECORDS PERTAINING TO ALL OF THE MOVEMENTS REFERRED TO ON THE LIST ATTACHED TO YOUR SUPPLEMENTAL BILL NO. 11-1000, AND HAVE NOTED TWO INSTANCES IN WHICH THE OVERPAYMENTS ALLEGEDLY MADE WERE PREDICATED UPON THE FACT THAT NO EVIDENCE OF THE PERFORMANCE OF FERRY FLIGHTS WAS FURNISHED. CAM NO. 5531, YOUR BILL NO. WQ-01-1212, ON WHICH AN OVERPAYMENT WAS ASSERTED IN THE AMOUNT OF $186, REPRESENTS AN INSTANCE WHERE UAL ORIGINALLY CLAIMED AND WAS PAID FOR FERRY MILEAGE FROM LAGUARDIA FIELD, NEW YORK, TO LAWTON, OKLAHOMA, WHILE THE FLIGHT LOGS SUBMITTED AS EVIDENCE OF THE PERFORMANCE OF THIS FERRY FLIGHT INDICATED THAT THE PLANE WAS FLOWN FROM BALTIMORE, MARYLAND, TO LAWTON, OKLAHOMA. ON THIS BILL, THE ALLOWABLE FERRY MILEAGE WAS REDUCED BY 155 MILES, THE DIFFERENCE BETWEEN THE DISTANCE FROM LAGUARDIA (1,402 MILES) AND BALTIMORE (1,247 MILES) TO THE POINT OF ORIGIN OF THE CHARTER FLIGHT DESIGNATED AS CAM 5531. ON CAM NO. 6361, YOUR BILL NO. NM-01 39, CREDIT FOR $2,600.40 FOR FERRY MILEAGE OF 2,167 MILES FROM LOS ANGELES, CALIFORNIA, TO BEAUFORT, SOUTH CAROLINA, WAS DISALLOW SINCE NO FLIGHT LOG OR OTHER RECORD WAS SUPPLIED TO INDICATE THE PERFORMANCE OF SUCH A FERRY FLIGHT IN CONNECTION WITH CAM NO. 6361. APPARENTLY, NEITHER OF THESE CASES INVOLVES AN INSTANCE WHERE FERRY MILEAGE WAS FLOWN WITH REVENUE PASSENGERS OR CARGO ON BOARD THE PLANE, AND THESE TWO CLAIMS SHOULD NOT HAVE BEEN INCLUDED IN YOUR BILL NO. 11-1000.

WE HAVE NOT AS YET HAD AN OPPORTUNITY TO EXAMINE THE RECORDS CONCERNING CAM-13, YOUR BILL NO. WQ-05-03-AF, ON WHICH YOU HAVE CLAIMED ADDITIONAL CHARGES OF $720 ON YOUR BILL NO. 11-1000-A. HOWEVER, CAM 3696, YOUR BILL NO. WQ-01-899 (CLAIM NO. 46333), COVERS YOUR CLAIM FOR $816 WHICH WAS FULLY DISCUSSED IN OUR LETTER OF JULY 26, 1956, IN WHICH YOU WERE ADVISED THAT THE AUDIT ACTION IN DISALLOWING THIS AMOUNT WAS PROPER. WHEN THE RECORDS CONCERNING CAM-13, YOUR BILL NO. WQ-05-03-AF (CLAIM 1 68932), ARE AVAILABLE, WE WILL WRITE YOU FURTHER IF WE FIND THAT THE AUDIT ACTION WAS IMPROPER IN ANY RESPECT. IF, ON THE OTHER HAND, WE FIND THAT THE CIRCUMSTANCES AS TO THAT MOVEMENT ARE SIMILAR TO THOSE DISCLOSED AS TO MOST OF THESE DISPUTED FERRY MILEAGE CLAIMS, THIS LETTER MAY BE CONSTRUED AS SUSTAINING THE AUDIT ACTION AS TO THIS MOVEMENT AND AS A DISALLOWANCE OF YOUR CLAIM FOR RECOVERY OF THE AMOUNT IN DISPUTE. NO ADDITIONAL CHARGES APPEAR TO BE DUE ON THE ITEMS INCLUDED ON YOUR BILL NO. 11-1000, IN THE AMOUNT OF $30,058.90. THEREFORE, YOUR CLAIM IS DISALLOWED IN ITS ENTIRETY.