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B-187317, JAN 27, 1977

B-187317 Jan 27, 1977
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THEY ARE TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. COMMUNICATION WAS IN SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENT OF 4 C.F.R. 53.3 AND 53.4 (1976). TCD'S ACTION WAS TAKEN ON A SHIPMENT OF FREIGHT ALL KINDS WEIGHING 36. 720 POUNDS WHICH WAS TRANSPORTED IN SEPTEMBER 1972 FROM WEST HARTFORD. NAVAJO WAS PAID $3. ITS CHARGES WERE BASED ON THE CARRIER'S SECTION 22 QUOTATION I.C.C. 1342 WHICH PROVIDES A RATE OF $6 PER 100 POUNDS AND A 28. THE PART OF THE SHIPMENT TRANSPORTED ON THE 40-FOOT TRAILER WAS BILLED AT ACTUAL WEIGHT. WAS BILLED AT THE 28. TCD DETERMINED THAT CHARGES LOWER THAN THOSE COLLECTED BY THE CARRIER WERE AVAILABLE TO THE GOVERNMENT AND ISSUED A NOTICE OF OVERCHARGE FOR $513.35 BASED ON CHARGES DERIVED IN PART FROM ITEM 2375 OF ROCKY MOUNTAIN TARIFF BUREAU QUOTATION 19-A (QUOTATION 19-A).

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B-187317, JAN 27, 1977

WHERE THE PROVISIONS OF A SECTION 22 QUOTATION CREATE AMBIGUITIES, THEY ARE TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER.

NAVAJO FREIGHT LINES, INC.:

NAVAJO FREIGHT LINES, INC. (NAVAJO), BY CORRESPONDENCE OF SEPTEMBER 16, 1976, REQUESTS REVIEW BY THE COMPTROLLER GENERAL OF THE UNITED STATES OF A DEDUCTION ACTION TAKEN BY THE FORMER TRANSPORTATION AND CLAIMS DIVISION (TCD) OF THE GENERAL ACCOUNTING OFFICE, NOW A PART OF THE GENERAL SERVICES ADMINISTRATION (GSA). SEE THE GENERAL ACCOUNTING OFFICE ACT OF 1974, 88 STAT. 1959, APPROVED JANUARY 2, 1975. A DEDUCTION ACTION CONSTITUTES A SETTLEMENT WITHIN THE MEANING OF SECTION 201(3) OF THAT ACT, 49 U.S.C. 66(B) (SUPP. V 1975) AND OF 4 C.F.R. 53.1(B)(1) AND 53.2 (1976). NAVAJO'S SEPTEMBER 16, 1976, COMMUNICATION WAS IN SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENT OF 4 C.F.R. 53.3 AND 53.4 (1976), ESTABLISHING THE CARRIER'S RIGHT TO A REVIEW OF A GSA SETTLEMENT BY THE COMPTROLLER GENERAL.

TCD'S ACTION WAS TAKEN ON A SHIPMENT OF FREIGHT ALL KINDS WEIGHING 36,720 POUNDS WHICH WAS TRANSPORTED IN SEPTEMBER 1972 FROM WEST HARTFORD, CONNECTICUT, TO NEBO, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING (GBL) NO. 4-8825134. THE SHIPMENT MOVED ON TWO TRAILERS, A 40 FOOT TRAILER LOADED WITH 28,440 POUNDS AND A 26-FOOT TRAILER LOADED WITH 8,280 POUNDS.

NAVAJO WAS PAID $3,457.98 FOR THIS TRANSPORTATION PRIOR TO AUDIT. SEE 49 U.S.C. 66 (1970). ITS CHARGES WERE BASED ON THE CARRIER'S SECTION 22 QUOTATION I.C.C. 1342 WHICH PROVIDES A RATE OF $6 PER 100 POUNDS AND A 28,000-POUND TRUCKLOAD MINIMUM WEIGHT FOR EACH VEHICLE USED. THE PART OF THE SHIPMENT TRANSPORTED ON THE 40-FOOT TRAILER WAS BILLED AT ACTUAL WEIGHT; THE BALANCE OF THE SHIPMENT, 8,280 POUNDS, WAS BILLED AT THE 28,000-POUND MINIMUM WEIGHT.

FOLLOWING AN AUDIT OF THE CARRIER'S BILL, TCD DETERMINED THAT CHARGES LOWER THAN THOSE COLLECTED BY THE CARRIER WERE AVAILABLE TO THE GOVERNMENT AND ISSUED A NOTICE OF OVERCHARGE FOR $513.35 BASED ON CHARGES DERIVED IN PART FROM ITEM 2375 OF ROCKY MOUNTAIN TARIFF BUREAU QUOTATION 19-A (QUOTATION 19-A), WHICH PROVIDES A RATE OF $6 PER 100 POUNDS AND A TRUCKLOAD MINIMUM WEIGHT OF 28,000 POUNDS. THIS RATE WAS APPLIED TO THE ACTUAL WEIGHT LOADED IN THE 40-FOOT TRAILER. A CLASS 100 LESS THAN TRUCKLOAD RATE OF $14.09 PER 100 POUNDS WAS APPLIED TO THE WEIGHT LOADED IN THE 26-FOOT TRAILER.

NAVAJO PROTESTED THE OVERCHARGE ASSERTING THAT USE OF THE $6 RATE AND THE 28,000-POUND MINIMUM WEIGHT IS SUBJECT TO A CIRCLE REFERENCE "1" WHICH READS: "MINIMUM WEIGHT PER VEHICLE USED." NAVAJO THUS CONTENDS THAT EVEN THOUGH DERIVED FROM A DIFFERENT SECTION 22 QUOTATION, THE APPLICABLE TRANSPORTATION CHARGES ARE THE SAME AS THOSE ORIGINALLY COLLECTED.

HOWEVER, UPON RECONSIDERATION, GSA FOUND THAT EVEN LOWER CHARGES WERE APPLICABLE TO THE SHIPMENT. THE LOWER CHARGES ARE DERIVED FROM THE APPLICATION OF THE $6 RATE IN ITEM 2375 OF QUOTATION 19-A TO BOTH THE 28,440 POUNDS TRANSPORTED ON THE 40-FOOT TRAILER AND THE 8,280 POUNDS TRANSPORTED ON THE 26-FOOT TRAILER. ITEM 2375 IS SUBJECT TO ITEM 975 OF QUOTATION 19-A; PART OF ITEM 975 READS:

"IF ENTIRE SHIPMENT CANNOT BE LOADED INTO THE TRUCKS AND TRAILERS OR SEMI -TRAILER IN CAPACITY LOADS DESCRIBED ABOVE, ONLY ONE OVERFLOW OF LESS THAN A CAPACITY LOAD OF FREIGHT WILL BE ALLOWED, AND CHARGES APPLYING TO SUCH OVERFLOW WILL BE ASSESSED ON THE ACTUAL WEIGHT OF THE OVERFLOW AT THE RATE NAMED IN THE APPLICABLE ITEM."

THE TOTAL CHARGE RESULTING FROM THE APPLICATION OF THESE RATES WAS $1,274.78, INCREASING THE OVERCHARGE TO $1,183.20.

NAVAJO AGAIN PROTESTED ALLEGING THAT ITEM 975 OF QUOTATION 19-A "HAS NOTHING TO DO WITH THE PROVISIONS OF ITEM 2375 . . . WHICH ARE SUBJECT TO THE ENCIRCLED NUMBER 1 READING 'MINIMUM WEIGHT PER VEHICLE USED.'" WHEN NAVAJO FAILED TO REFUND THE OVERCHARGE, IT WAS COLLECTED FROM MONIES OTHERWISE DUE THE CARRIER.

AS INDICATED, THE MINIMUM WEIGHT OF 28,000 POUNDS IN ITEM 2375 OF QUOTATION 19-A IS SUBJECT TO A REFERENCE READING "MINIMUM WEIGHT PER VEHICLE USED." HOWEVER, THIS FURTHER QUALIFICATION APPEARS AT THE TOP OF THE PAGE CONTAINING ITEM 2375: "RATES IN CENTS PER 100 POUNDS, SUBJECT TO TRUCKLOAD MINIMUM WEIGHTS AS INDICATED AND SUBJECT TO ITEM 975 (EXCEPT AS NOTED)."

ITEM 975 READS:

"TRUCKLOAD RATES AND MINIMUM WEIGHTS

UNLESS OTHERWISE SPECIFICALLY INDICATED IN CONNECTION WITH A RATE OR MINIMUM WEIGHT, ALL RATES AND MINIMUM WEIGHTS SUBJECT TO 'TRUCKLOAD' OR TO THE ' . . . ' SYMBOL IN THIS QUOTATION WILL APPLY AS FOLLOWS:

(1) EXCEPT AS PROVIDED IN PARAGRAPH (3) OF THIS ITEM, EACH VEHICLE (AS DEFINED IN NOTE 1 BELOW), FURNISHED FOR TRANSPORTATION OF A SINGLE SHIPMENT WILL BE SUBJECT TO A MINIMUM CHARGE BASED ON ACTUAL WEIGHT OR TRUCKLOAD MINIMUM WEIGHT NAMED THEREIN, WHICHEVER WEIGHT IS GREATER, AND AT THE TRUCKLOAD RATE NAMED THEREIN.

IF ENTIRE SHIPMENT CANNOT BE LOADED INTO THE TRUCKS AND TRAILERS OR SEMI- TRAILERS IN CAPACITY LOADS AS DESCRIBED ABOVE, ONLY ONE OVERFLOW OF LESS THAN A CAPACITY LOAD OF FREIGHT WILL BE ALLOWED, AND CHARGES APPLYING TO SUCH OVERFLOW WILL BE ASSESSED ON THE ACTUAL WEIGHT OF THE OVERFLOW AT THE RATE NAMED IN THE APPLICABLE ITEM.

(2) EXCEPT AS OTHERWISE PROVIDED IN INDIVIDUAL ITEMS, EACH TRUCK AND TRAILER OR SEMI-TRAILER FURNISHED WILL BE NOT LESS THAN 35 FEET IN LENGTH, AND EACH VEHICLE (AS DEFINED IN NOTE 1 BELOW) FURNISHED WILL PROVIDE NOT LESS THAN 2300 CUBIC FEET OF LOADING SPACE, AND WILL BE CONSIDERED AS FULLY LOADED AND/OR LOADED TO CAPACITY WHEN NO MORE OF THE SAME KIND OF FREIGHT CAN BE STOWED THEREIN.

(3) WHEN THE MINIMUM WEIGHTS SPECIFIED IN CONNECTION WITH ANY RATE MADE SUBJECT TO THIS ITEM, CANNOT BE LOADED INTO A VEHICLE (AS DEFINED IN NOTE 1 BELOW), AND LEGALLY TRANSPORTED THEREIN FROM ORIGIN TO DESTINATION, THAT PORTION OF THE SHIPMENT WHICH CAN BE LOADED ON SAID VEHICLE WILL BE CHARGED FOR ON THE BASIS OF THE MINIMUM WEIGHT SPECIFIED FOR THE RATE NAMED. THE REMAINING PORTION OF THE SHIPMENT WILL BE CHARGED FOR AS A SEPARATE SHIPMENT.

NOTE 1 - THE TERM 'VEHICLE' MEANS:

(A) A TRUCK, (B) A TRUCK AND TRAILER COMBINED, (C) A TRACTOR AND A SEMI-TRAILER COMBINES, OR (D) A TRACTOR COMBINED WITH TWO SEMI-TRAILERS, EACH SEMI-TRAILER NOT EXCEEDING 28 FEET IN LENGTH."

IT SEEMS APPARENT THAT WHEN APPLIED TO THE SHIPMENT TRANSPORTED UNDER GBL NO. F-8825134, ITEMS 2375 AND 975 OF QUOTATION 19-A ARE AMBIGUOUS. THE PHRASE IN ITEM 2375 WHICH WOULD REQUIRE THE USE OF A MINIMUM WEIGHT OF 28,000 POUNDS "PER VEHICLE USED" CONFLICTS WITH THE LANGUAGE IN PARAGRAPH 1 OF ITEM 975 WHICH CLEARLY PERMITS THE OVERFLOW WEIGHT (HERE, 8,280 POUNDS) TO BE ASSESSED AT ACTUAL WEIGHT AT THE $6 RATE NAMED IN ITEM 2375. IT LONG HAS BEEN THE RULE THAT AMBIGUITIES IN TARIFFS OR IN SECTION 22 QUOTATIONS LIKE QUOTATION 19-A ARE TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. UNITED STATES V. GREAT NORTHERN RY., 337 F.2D 243, 246 (8TH CIR. 1964); C & H TRANSPORTATION CO. V. UNITED STATES, 436 F.2D 480, 482 (CT.CL. 1970); PENN CENTRAL COMPANY V. GENERAL MILLS, INC., 439 F.2D 1338 (8TH CIR. 1971).

WE ARE AWARE OF THE FACT THAT THE QUALIFICATION APPEARING AT THE TOP OF THE PAGE CONTAINING ITEM 2375 OF QUOTATION 19-A CONTAINS THE PARENTHETICAL PHRASE "EXCEPT AS NOTED." BUT WE FIND NO EXCEPTION IN ITEM 2375 TO THE USE OF ITEM 975. AND IN ANY EVENT THE EXCEPTION LACKS THE NECESSARY SPECIFICITY OF EXPRESSION, A LACK WHICH RAISES A QUESTION CONCERNING THE INTERPRETATION OF QUOTATION 19-A, A QUESTION WHICH MUST BE RESOLVED IN FAVOR OF THE SHIPPER. UNITED STATES V. MISSOURI PACIFIC R.R., 250 F.2D 805, 807 (5TH CIR. 1958).

GSA ON OCTOBER 7, 1976, ISSUED A SETTLEMENT CERTIFICATE (TK-009343), DISALLOWING NAVAJO'S CLAIM FOR REFUND OF THE $1,183.20 COLLECTED BY DEDUCTION. ALTHOUGH ITS REASONS FOR DISALLOWING THE CLAIM ARE SLIGHTLY DIFFERENT FROM THOSE IN THIS DECISION, THE GSA ACTION IN DISALLOWING NAVAJO'S CLAIM IS CORRECT AND IS SUSTAINED.

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