A-58039, OCTOBER 3, 1934, 14 COMP. GEN. 276

A-58039: Oct 3, 1934

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IT IS APPARENT THAT THE APPLICATION OF THE RATE IS NOT LIMITED STRICTLY TO ARTICLES INCLUDED WITHIN THAT DESCRIPTION AND IS TO BE GIVEN A LIBERAL INTERPRETATION IT MUST BE CLEAR. THAT AN ARTICLE SHIPPED IS WITHOUT THE SCOPE OF THE LOWER RATE. THAT "THIS SHIPMENT WAS RATED AT $4.00 PER TON OF 40 C.FT. THE DISBURSING OFFICER'S PAYMENT WAS COMPUTED AT THE RATE OF $4 PER TON OF 40 CUBIC FEET WHICH THE CARRIER HAD ADVISED IT HAD APPLIED TO THE SHIPMENT. IN SETTLEMENT T90302 1/2 THIS CLAIM WAS DISALLOWED BECAUSE THE CARRIER HAVING ADVISED THE NAVY DEPARTMENT APRIL 19. THAT "THE COTTON SHEETS WERE RATED $4 PER 40 CUBIC FEET OR 2. IT THEREFORE APPEARS THERE IS NOTHING FURTHER DUE CLAIMANT.'. READING IN PERTINENT PART: * * * THE PROPER RATE TO HAVE CHARGED * * * IS THE GENERAL-CARGO RATE OF $16.00 W/M AS THERE IS NO COMMODITY ITEM OR INTERPRETATION COVERING COTTON SHEETS.

A-58039, OCTOBER 3, 1934, 14 COMP. GEN. 276

TRANSPORTATION - RATES - AMBIGUITY WHERE A CARRIER PUBLISHES A LOWER RATE UNDER A COMMODITY DESCRIPTION WHICH HAS A GENERALLY UNDERSTOOD AND COMMERCIALLY ACCEPTED MEANING, BUT IT IS APPARENT THAT THE APPLICATION OF THE RATE IS NOT LIMITED STRICTLY TO ARTICLES INCLUDED WITHIN THAT DESCRIPTION AND IS TO BE GIVEN A LIBERAL INTERPRETATION IT MUST BE CLEAR, TO JUSTIFY A CHARGE AGAINST APPROPRIATED MONEYS AT A HIGHER RATE, THAT AN ARTICLE SHIPPED IS WITHOUT THE SCOPE OF THE LOWER RATE.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 3, 1934:

THE DOLLAR STEAMSHIP LINES, INC., LTD., HAS REQUESTED REVIEW OF SETTLEMENT T90302 1/2, DATED DECEMBER 1, 1933, WHICH DISALLOWED THE CARRIER'S CLAIM FOR $111.60 IN ADDITION TO THE AMOUNT OF $37.20 THERETOFORE PAID BY CAPT. J. H. KNAPP, NAVY DISBURSING OFFICER, ON VOUCHER 6138, SEPTEMBER 11, 1933, FOR THE TRANSPORTATION FROM NEW YORK, N.Y., TO MANILA, P.I., OF 23 CASES COTTON SHEETS, THE AGGREGATE DIMENSIONS OF THE PACKAGES BEING 372 CUBIC FEET, COVERED BY BILL OF LADING N881075, DATED MARCH 30, 1933.

THE CARRIER'S BILL F-682 STATED THE CHARGE AS $148.80 COMPUTED AT THE RATE OF $16 PER 40 CUBIC FEET NAMED IN ITEM 450 OF FAR EAST CONFERENCE FREIGHT TARIFF NO. 9 AS APPLICABLE ON "CARGO N.O.S., " NOTWITHSTANDING THE CARRIER'S EARLIER ADVICE TO THE NAVY DEPARTMENT UNDER DATE OF APRIL 19, 1933, THAT "THIS SHIPMENT WAS RATED AT $4.00 PER TON OF 40 C.FT. OR 2000 NO.'

THE DISBURSING OFFICER'S PAYMENT WAS COMPUTED AT THE RATE OF $4 PER TON OF 40 CUBIC FEET WHICH THE CARRIER HAD ADVISED IT HAD APPLIED TO THE SHIPMENT.

THEREAFTER THE CARRIER SUBMITTED A CLAIM PER BILL F-682-A FOR THE DIFFERENCE OF $111.60 ASSERTING IN SUPPORT THEREOF:

RATE OF $4.00 INCORRECT ON COTTON SHEETS. ITEM 450 FEC TARIFF NO. 9 APPLIES AT $16.00 W/M.

IN SETTLEMENT T90302 1/2 THIS CLAIM WAS DISALLOWED BECAUSE THE CARRIER HAVING ADVISED THE NAVY DEPARTMENT APRIL 19, 1933, THAT "THE COTTON SHEETS WERE RATED $4 PER 40 CUBIC FEET OR 2,000 POUNDS, IT THEREFORE APPEARS THERE IS NOTHING FURTHER DUE CLAIMANT.' SEE SOUTHERN PACIFIC COMPANY V. UNITED STATES, 268 U.S. 263.

IN SUPPORT OF ITS REQUEST FOR REVIEW OF THE SETTLEMENT AND ALLOWANCE OF THE CLAIM THEREIN DISALLOWED, THE CARRIER HAS SUBMITTED A COPY OF A LETTER DATED FEBRUARY 6, 1934, FROM THE SECRETARY, FAR EAST CONFERENCE, READING IN PERTINENT PART:

* * * THE PROPER RATE TO HAVE CHARGED * * * IS THE GENERAL-CARGO RATE OF $16.00 W/M AS THERE IS NO COMMODITY ITEM OR INTERPRETATION COVERING COTTON SHEETS. THERE IS AN INTERPRETATION COVERING COTTON SHEETING AUTHORIZING THE APPLICATION OF THE COTTON PIECE-GOODS RATE. HOWEVER, THIS IS UNDERSTOOD TO APPLY TO COTTON SHEETING IN THE BOLT AS IT COMES FROM THE MILL, WHICH I BELIEVE IS THE GENERAL UNDERSTANDING AS TO THE MEANING OF COTTON PIECE GOODS.

THE INTERPRETATION OF COTTON SHEETING, THEREFORE CANNOT BE CONSTRUED TO COVER COTTON SHEETS WHICH ARE A FINISHED MANUFACTURED ARTICLE AND PROPERLY CHARGEABLE AT THE CARGO N.O.S. RATE WHICH WAS $16.00 W/M AT THE TIME SHIPMENT MOVED.

ON THE DATE OF THIS SHIPMENT TARIFF NO. 9 (ITEM 655 NAMED A RATE OF $4 PER TON OF 40 CUBIC FEET APPLICABLE ON "COTTON PIECE GOODS (NOT INCLUDING THREAD AND YARN)" AND (ITEM 450) A RATE OF $16 PER TON OF 40 CUBIC FEET APPLICABLE ON "CARGO, N.O.S. APPLIES ONLY ON COMMODITIES NOT SPECIFICALLY COVERED BY INDIVIDUAL RATE ITEMS.'

COTTON SHEETS WERE NOT SPECIFICALLY NAMED IN ANY INDIVIDUAL RATE ITEMS, BUT IT APPEARS FROM THE CARRIERS' OWN INTERPRETATION OF THE TARIFF THAT WHILE AN INDIVIDUAL RATE ITEM MIGHT NOT SPECIFICALLY NAME A COMMODITY THAT COMMODITY COULD BE SO "SPECIFICALLY COVERED" BY THAT ITEM WITHIN THE MEANING OF THE RESTRICTION NOTED IN ITEM 450, AS TO REMOVE THE APPLICATION OF THE LATTER ITEM. FURTHERMORE, THE COMMODITY DESCRIPTIONS IN VARIOUS INDIVIDUAL RATE ITEMS QUITE APPARENTLY WERE NOT INTENDED TO LIMIT THE APPLICATION OF THE RATES NAMED THEREIN ONLY TO ARTICLES GENERALLY ACCEPTED AS BEING EMBRACED BY SUCH DESCRIPTIONS. THUS, ITEM 655, ALTHOUGH INDICATED AS APPLYING ON "COTTON PIECE GOODS," SPECIFICALLY PROVIDED THAT THIS TERM DID NOT INCLUDE "THREAD AND YARN.' THERE WOULD APPEAR TO BE NO REASON FOR SUCH A SPECIFIC EXCLUSION IF THE TERM "COTTON PIECE GOODS" AS USED IN THIS ITEM INCLUDED ONLY SUCH ARTICLES AS THE TERM ORDINARILY WOULD DENOTE, THAT IS ARTICLES OF "* * * PLAIN WOVEN MATERIAL OF SIMPLE CHARACTER, EQUAL ON BOTH SIDES, AND OF MORE OR LESS RIBBED PRODUCTION. * * (HAVING) ALTERNATING THREADS UP AND DOWN THROUGHOUT, ALIKE ON BOTH SIDES OF THE FABRIC. THE ORDINARY WEAVING LOOM (BEING) USED IN THEIR MANUFACTURE. * * *" SEE SEAMAN BODY CORPORATION V. CHICAGO AND NORTHWESTERN RAILWAY CO. ET AL., 200 I.C.C. 42 (43).

IT WOULD SEEM APPARENT THAT THREAD AND YARN ARE NOT INCLUDED IN THE FOREGOING DESCRIPTION OF ARTICLES COMMERCIALLY UNDERSTOOD TO BE MEANT BY THE TERM "COTTON PIECE GOODS," AND THEIR EXCLUSION FROM THE APPLICATION OF THE RATE WOULD SERVE NO USEFUL PURPOSE IF THAT RATE WERE LIMITED TO COTTON PIECE GOODS AS THAT TERM IS GENERALLY UNDERSTOOD AND ACCEPTED COMMERCIALLY. THAT THE RATE IN TARIFF ITEM 655 WAS NOT LIMITED TO COTTON PIECE GOODS IN THE ORIGINAL PIECE IS MANIFEST FROM THE CARRIERS' OWN SPECIFIC INTERPRETATION (AS SHOWN IN THE TARIFF) OF ITEM 655 AS BEING APPLICABLE ON SUCH ARTICLES AS COTTON BAGS, COTTON BLANKETS, AND COTTON TOWELS, ALL BEING ,FINISHED MANUFACTURED" ARTICLES OF THE SAME MATERIAL AS THE ARTICLES HERE CONCERNED. IT IS TO BE OBSERVED THAT THE CARRIER ITSELF ORIGINALLY TREATED THESE VERY ARTICLES NAMELY, COTTON SHEETS, AS BEING ENTITLED TO THE APPLICATION OF THE RATE NAMED IN ITEM 655.

THE TARIFF "INDEX OF ARTICLES FOR WHICH COMMODITY RATES ARE PROVIDED HEREIN" SHOWS THAT BY AUTHORIZED INTERPRETATION OF TARIFF BY THE CARRIERS THE APPLICATION OF THE $4 RATE ON COTTON PIECE GOODS" NAMED IN ITEM 655 EXTENDS TO COTTON BAGGING, COTTON BAGS, COTTON BLANKETS, COTTON BAG LINERS, COTTON DUCK, COTTON NETTING, COTTON SHEETINGS, COTTON SHIRTINGS, COTTON TOWELING, AND COTTON TOWELS, THIS APPLICATION THUS BEING MUCH BROADER AND MORE INCLUSIVE THAN THE LETTER OF THE SECRETARY OF THE FAR EAST CONFERENCE WOULD INDICATE. IT IS APPARENT THAT THE EFFECT OF THESE ,AUTHORIZED" INTERPRETATIONS OF THE APPLICATION OF ITEM 655 IS TO HOLD THAT THE COMMODITIES JUST NAMED (THOUGH NOT SHOWN IN THE SAID ITEM) "ARE SPECIFICALLY COVERED BY" AN "INDIVIDUAL RATE" ITEM WITHIN THE MEANING OF THE ITEM 450 PROVISION THAT THE LATTER ITEM "APPLIES ONLY ON COMMODITIES NOT SPECIFICALLY COVERED BY INDIVIDUAL RATE ITEMS.' IN OTHER WORDS, THE CARRIERS HAVE INDICATED THAT THE CARGO, N.O.S. RATE DOES NOT APPLY, NOT ONLY IN THE EVENT A COMMODITY IS SPECIFICALLY NAMED IN AN INDIVIDUAL RATE ITEM BUT ALSO IN THE EVENT THAT AN INDIVIDUAL RATE ITEM GIVES ONLY A GENERIC DESCRIPTION AND THIS GENERIC DESCRIPTION IS TO BE GIVEN SUCH A LIBERAL INTERPRETATION AS TO INCLUDE COMMODITIES WHICH ORDINARILY MIGHT BE OF DOUBTFUL INCLUSION. IT WOULD SEEM, THEREFORE, THAT THE TERM "COTTON PIECE GOODS" AS USED IN ITEM 655 WAS INTENDED BY THE CARRIERS TO COVER, AND IN PRACTICE IS TREATED BY THE CARRIERS AS COVERING, WITH THE EXCEPTION OF THREAD AND YARN, NOT ONLY COTTON PIECE GOODS IN THE ORIGINAL PIECE OR OTHERWISE, BUT ARTICLES WHICH BY A SHORTLY REMOVED PROCESS ARE CONVERTED FROM COTTON CLOTH TO SIMPLE MANUFACTURED ARTICLES READY FOR USE AS SHIPPED. THE TARIFF SHOWS THAT BY AUTHORIZED INTERPRETATION PRIOR TO THE DATE OF THIS SHIPMENT, BAGS, BLANKETS, AND TOWELS WERE ENTITLED TO THE APPLICATION OF THE $4 RATE, AND THE RECORD SHOWS THAT THE PRESENT CARRIER ORIGINALLY INTERPRETED THE TARIFF AS MAKING THE SAME RATE AVAILABLE ON COTTON SHEETS. THE FACT THAT SEVERAL MONTHS LATER THE SAME CARRIER APPARENTLY INTERPRETED THE SAME ITEM AS NOT BEING APPLICABLE ON THE SAME SHIPMENT INDICATES AT BEST NO MORE THAN THAT THE CARRIER HAS PUBLISHED A RATE THE APPLICATION OF WHICH IS NOT CLEAR EVEN TO THE ONE RESPONSIBLE FOR IT, AN AMBIGUITY MADE FURTHER APPARENT BY THE SHOWING IN THE TARIFF OF THE NUMEROUS "AUTHORIZED" INTERPRETATIONS OF ITEM 655 AND THE CHARACTER OF THE COMMODITIES THEREBY FOUND TO BE COVERED BY THIS ITEM. IT DOES NOT SEEM IN SUCH A SITUATION THAT COTTON SHEETS ARE SO FAR REMOVED FROM COTTON BAGS, COTTON BLANKETS, AND COTTON, TOWELS, THAT THE LINE OF DEMARCATION SHOULD OPERATE TO SUBJECT THE SHEETS ON THE ONE SIDE TO A RATE FOUR TIMES AS GREAT AS THAT HELD BY INTERPRETATION OF AN AMBIGUOUS TERM TO BE APPLICABLE ON THE BAGS, BLANKETS, AND TOWELS ON THE OTHER SIDE.

AS THE RECORD DOES NOT AFFORD A CLEAR SHOWING THAT COTTON SHEETS ARE NOT PROPERLY FOR INCLUSION IN THE TERM "COTTON PIECE GOODS" AS USED IN ITEM 655, THERE APPEARS TO BE NO JUSTIFICATION FOR A FINDING THAT THEY ARE COVERED BY SOME OTHER ITEM, NAMING A HIGHER RATE, PARTICULARLY WHEN IT APPEARS AS HERE, THAT THE OTHER ITEM, THAT IS, ITEM 450, IS MEANT OBVIOUSLY TO BE OF THE MOST LIMITED APPLICATION.