B-149020, JUN. 4, 1963

B-149020, JUN. 4, 1963

TO GENERAL EXPRESSWAYS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1962, IN WHICH YOU REQUESTED RECONSIDERATION OF OUR DECISION OF NOVEMBER 26, 1962, CONCERNING THE TRANSPORTATION CHARGES PROPERLY ALLOWABLE ON A SHIPMENT OF PARABOLIC ANTENNAS WEIGHING 7,350 POUNDS, MOVED FROM COHASSET, MASSACHUSETTS, TO ROME, NEW YORK, DURING MAY 1959.

YOU CONTEND THAT THE PROVISIONS OF RULE 62-1 (VEHICLES LOADED TO CAPACITY) OF MIDDLE ATLANTIC CONFERENCE FREIGHT TARIFF NO. 15-J, MF I.C.C. NO. A-949, ENTITLE YOU TO TRUCKLOAD CHARGES FOR THIS SHIPMENT. WE CONTEND THAT RULE 25 (APPLICATION OF MAXIMUM CHARGES), PARAGRAPH (D), OF THIS TARIFF LIMITS YOU TO LESS-THAN-TRUCKLOAD CHARGES. THE PERTINENT PROVISIONS OF THESE RULES ARE AS OLLOWS:

"RULE 25:

"/D) WHEN THE CHARGE ON A SHIPMENT IS MADE LOWER BY BILLING IT AS A LESS- THAN-TRUCKLOAD SHIPMENT, SUCH LOWER CHARGE WILL APPLY.

"RULE 62-1:

"EXCEPT ON SHIPMENTS SUBJECT TO ANY-QUANTITY RATES OR RATINGS, WHEN A SINGLE VEHICLE 28 FEET OR MORE IN LENGTH (INSIDE MEASUREMENT), IS LOADED TO CAPACITY (NOTE) WITH A SINGLE SHIPMENT, SUCH SHIPMENT SHALL BE CHARGED FOR AT THE APPLICABLE TRUCKLOAD RATE AND ACTUAL WEIGHT, BUT NOT LESS THAN THE APPLICABLE TRUCKLOAD MINIMUM WEIGHT.'

YOU ARGUE THAT EACH AND EVERY TARIFF PROVISION IS PUBLISHED TO APPLY TO A SPECIFIC SITUATION AND ALL TARIFF PROVISIONS MUST BE EXAMINED AND GIVEN EQUAL EFFECT WHERE THEY ARE APPLICABLE. THEREFORE, YOU MAINTAIN THAT RULE 62-1 MUST BE FOLLOWED TO REACH THE PROPER CHARGE BASIS.

IN OUR DECISION OF NOVEMBER 26, 1962, WE POINTED OUT THAT TARIFFS MUST BE EXPRESSED IN CLEAR AND PRECISE TERMS SO THAT THOSE DEALING WITH THEM MAY UNDERSTAND THEM AND ACT ACCORDINGLY AND THAT SINCE TARIFFS ARE WRITTEN BY THE CARRIERS, AMBIGUITIES OR REASONABLE DOUBTS AS TO MEANING MUST BE RESOLVED AGAINST THE CARRIERS. THE DISALLOWANCE OF YOUR CLAIM FOR $120.71 --- REPRESENTING THE DIFFERENCE BETWEEN TRANSPORTATION CHARGES FIGURED ON THE BASIS OF THE TRUCKLOAD RATE AT THE MINIMUM WEIGHT AND THE LESS-THAN- TRUCKLOAD RATE AT THE ACTUAL WEIGHT--- WAS THEREFORE SUSTAINED.

RULE 25 (D) IS NOT RESTRICTED IN ITS APPLICATION SUCH AS BY THE ADDITION OF THE WORDS "EXCEPT AS OTHERWISE PROVIDED IN THIS TARIFF," OR SOME SIMILAR LANGUAGE, AND RULE 62-1 IS NOT SHOWN AS AN EXCEPTION TO RULE 25 (D). WE NOTE, HOWEVER, THAT RULE 9 (EXPEDITED SERVICE) OF TARIFF 15-J--- WHICH IS SOMEWHAT COMPARABLE IN EFFECT TO RULE 62-1 IN THAT IT PROVIDES THAT CHARGES FOR EXPEDITED OR EXCLUSIVE-USE SERVICE ON SHIPMENTS NORMALLY SUBJECT TO LESS-THAN-TRUCKLOAD RATINGS SHALL BE COMPUTED ON THE TRUCKLOAD BASIS (SUBJECT TO A SPECIFIED MINIMUM CHARGE/ -- SPECIFICALLY HAS BEEN REMOVED FROM THE OPERATION OF RULE 13, SECTION 5, OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION AND RULE 25 (D) BY EXCEPTION NO. 3. THAT EXCEPTION READS:

"THE PROVISION OF RULE 25 (APPLICATION OF MAXIMUM CHARGES) WILL NOT APPLY ON SHIPMENTS HANDLED UNDER THIS RULE.'

IF IT WERE THE INTENT OF THE TARIFF FRAMERS TO MAKE RULE 62-1 AN EXCEPTION TO RULE 25 (D), IT EASILY COULD HAVE BEEN MADE APPARENT TO THE SHIPPING PUBLIC BY INCORPORATING INTO RULE 62-1 AN EXCEPTION SUCH AS CONTAINED IN RULE 9. LACKING SUCH AN EXCEPTION, RULE 62-1 IS MADE SUBJECT TO THE MAXIMUM CHARGE PROVISIONS OF RULE 25 (D). WHEN THE SHIPMENT IS BILLED, AS IN THE PRESENT INSTANCE, AS A LESS-THAN TRUCKLOAD SHIPMENT UNDER RULE 25 (D), AND THE CHARGE IS LOWER ON THAT BASIS, THEN SUCH LOWER LESS-THAN-TRUCKLOAD CHARGE MUST BE GIVEN PREFERENCE. EQUAL EFFECT, AS YOU ARGUE, CANNOT BE GIVEN TO THE TWO TARIFF PROVISIONS INVOLVED AS OBVIOUSLY, FROM ITS VERY NATURE, THE MAXIMUM CHARGE RULE MUST TAKE PRECEDENCE OVER OTHER RULES IN THE TARIFF WHICH NORMALLY WOULD DETERMINE THE FINAL CHARGE BASIS.

A SOMEWHAT SIMILAR SITUATION INSOFAR AS PRINCIPLE IS CONCERNED WAS CONSIDERED IN A.C.F. BRILL MOTORS CO. V. SUPER SERVICE MOTOR FREIGHT CO., INC., 54 M.C.C. 721 (1952), INVOLVING AN EXCLUSIVE USE RULE WHICH APPARENTLY DID NOT CONTAIN PROVISION FOR REMOVING THE EFFECT OF RULE 13 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION. IN THAT CASE THE INTERSTATE COMMERCE COMMISSION UPHELD THE ENFORCEABILITY OF RULE 13 IN PREFERENCE TO THE EXCLUSIVE USE RULE, NOTWITHSTANDING THAT EXCLUSIVE USE WAS FURNISHED.