B-120772, JUN. 16, 1955

B-120772: Jun 16, 1955

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TO B B AND I MOTOR FREIGHT INC.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1. THOSE BILLS WERE DISALLOWED IN THE ABOVE-MENTIONED SETTLEMENTS. SUCH RECOMMENDATION WAS DUE TO THE FACT THAT THE SHIPMENTS IN QUESTION WERE MADE PRIOR TO THE EFFECTIVE DATE OF SUPPLEMENT NO. 1 TO TENDER NO. 47. CLASSIFICATION RATES WERE OBTAINED FROM TARIFF NO. 100 WHILE EXCEPTIONS RATES WERE OBTAINED FROM TARIFF NO. IN VIEW OF THIS YOU ASSUME THAT THE USE OF RATES IN TARIFF NO. 100 WAS NOT AUTHORIZED EITHER EXPLICITLY OR BY IMPLICATION IN TENDER NO. 47. TARIFF NO. 1-E NAMED TWO SCALES OF RATES WHICH ARE PERTINENT IN THIS INSTANCE. ONE SCALE WAS APPLICABLE ON TRAFFIC SUBJECT TO THE NATIONAL MOTOR FREIGHT CLASSIFICATION AND THE OTHER SCALE WAS APPLICABLE ON TRAFFIC SUBJECT TO EXCEPTIONS TO THAT CLASSIFICATION.

B-120772, JUN. 16, 1955

TO B B AND I MOTOR FREIGHT INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1, 1954, REQUESTING REVIEW OF THE SETTLEMENT CERTIFICATES IN CLAIMS NO. TK482485 AND TK482486, DATED DECEMBER 10, 1953, DISALLOWING YOUR CLAIMS FOR ADDITIONAL CHARGES IN CONNECTION WITH THE TRANSPORTATION OF AMMUNITION FOR CANNON FROM THE REDSTONE ARSENAL, ALABAMA, TO CRANE, INDIANA, VIA ARROW TRANSFER, C. I. WHITTEN TRANSFER, AND B B AND I MOTOR FREIGHT, UNDER GOVERNMENT BILLS OF LADING NOS. WY-1959400 AND WY-1959420, IN MARCH 1953.

FOR THIS TRANSPORTATION YOU ORIGINALLY CLAIMED CHARGES COMPUTED ON THE BASIS OF A CLASS-65 RATE OF $1.96 PER 100 POUNDS NAMED IN CENTRAL AND SOUTHERN MOTOR FREIGHT BUREAU TARIFF NO. 1-E, MF-I.C.C. NO. 105, PLUS A 15 PERCENT INCREASE, APPARENTLY UNDER THE AUTHORITY OF C. I. WHITTEN TRANSFER COMPANY SERIES TENDER NO. 47, EFFECTIVE FEBRUARY 25, 1953, WHICH SPECIFIED THE ABOVE-NAMED ROUTE. THE MARINE CORPS PAID YOUR BILLS NOS. 4/1 556380 AND 4/1 556375 ON THE BASIS OF A CLASS-65 RATE OF $1.51 PER 100 POUNDS SPECIFIED IN CENTRAL AND SOUTHERN MOTOR FREIGHT BUREAU TARIFF NO. 100, MF- I.C.C. NO. 117. YOU SUBMITTED BILLS NOS. 30 AND 31, IN THE AMOUNTS OF $459.22 AND $611.44, BEING THE AMOUNTS ELIMINATED BY THE MARINE CORPS IN THE PAYMENT OF YOUR ORIGINAL BILLS, AND THOSE BILLS WERE DISALLOWED IN THE ABOVE-MENTIONED SETTLEMENTS, CONSIDERATION BEING GIVEN AT THAT TIME TO THE RECOMMENDATION BY THE MARINE CORPS THAT THE CLAIMS REPRESENTED BY BILLS NOS. 30 AND 31 BE DISALLOWED. SUCH RECOMMENDATION WAS DUE TO THE FACT THAT THE SHIPMENTS IN QUESTION WERE MADE PRIOR TO THE EFFECTIVE DATE OF SUPPLEMENT NO. 1 TO TENDER NO. 47, AND THEREFORE 65 PERCENT OF THE FIRST- CLASS MOTOR RATE, AS PUBLISHED IN CENTRAL AND SOUTHERN MOTOR FREIGHT BUREAU TARIFF NO. 100, APPLIED IN ACCORDANCE WITH TENDER NO. 47, EFFECTIVE FEBRUARY 25, 1953.

IN YOUR REQUEST FOR REVIEW YOU TAKE THE POSITION THAT AFTER FEBRUARY 25, 1953, WHEN TARIFF NO. 100 BECAME EFFECTIVE, CLASSIFICATION RATES WERE OBTAINED FROM TARIFF NO. 100 WHILE EXCEPTIONS RATES WERE OBTAINED FROM TARIFF NO. I-E. IN VIEW OF THIS YOU ASSUME THAT THE USE OF RATES IN TARIFF NO. 100 WAS NOT AUTHORIZED EITHER EXPLICITLY OR BY IMPLICATION IN TENDER NO. 47, WHICH YOU STATE PROVIDES FOR THE USE OF THE EXCEPTIONS RATE IN TARIFF NO. 1-E ONLY.

PRIOR TO FEBRUARY 25, 1953, TARIFF NO. 1-E NAMED TWO SCALES OF RATES WHICH ARE PERTINENT IN THIS INSTANCE. ONE SCALE WAS APPLICABLE ON TRAFFIC SUBJECT TO THE NATIONAL MOTOR FREIGHT CLASSIFICATION AND THE OTHER SCALE WAS APPLICABLE ON TRAFFIC SUBJECT TO EXCEPTIONS TO THAT CLASSIFICATION. IT IS NOTED THAT NEITHER TENDER NO. 42, NOR TENDER NO. 47, WHICH CANCELLED NO. 42, INDICATES THAT THE BASES SHOWN IN THOSE QUOTATIONS ARE RATINGS WHICH ARE TO BE APPLIED TO A SCALE OF EXCEPTION RATES. RATHER, TENDER NO. 47 DEFINITELY SPECIFIES "RATES" IN ITEM 3D AND STATES, IN ITEM 5, THAT THE "RATES" NAMED IN ITEM 3 ARE SUBJECT TO ALL TERMS AND PROVISIONS OF SPECIFIED TARIFFS AND NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 7. THE MERE DESIGNATION OF THOSE TARIFFS, INCLUDING TARIFF NO. 1-E, AS TO THE PROVISIONS OF WHICH THE RATES NAMED IN ITEM 3 WERE SUBJECT, WOULD NOT SEEM TO REQUIRE THE CONCLUSION THAT THE RATES NAMED IN THE TENDER WERE LIMITED TO THOSE ASCERTAINABLE BY USING RATE SCALES IN THAT OR ANY OTHER PARTICULAR TARIFF, IN THE ABSENCE, AS HERE, OF ANY SPECIFIC LIMITATION WHICH WOULD SERVE TO REMOVE ANY DOUBT AS TO WHAT WAS BEING OFFERED BY THE INTERESTED CARRIERS UNDER THE TERMS OF TENDER NO. 47 PRIOR TO THE EFFECTIVE DATE OF SUPPLEMENT NO. 1 TO THAT TENDER. THE ISSUANCE OF SUPPLEMENT NO. 1 TO TENDER NO. 47, EFFECTIVE APRIL 22, 1953, TO THE EFFECT THAT IN DETERMINING THE RATES TO BE APPLIED TO ANY GIVEN MOVEMENT "EXCEPTIONS FIRST CLASS OR CLASSIFICATION FIRST CLASS," WHICHEVER PRODUCES THE HIGHER RATE TO BE USED, REMOVED SUCH DOUBT AS EXISTED PRIOR THERETO.

THE EXPRESSION "75 PERCENT" AND "65 PERCENT" OF THE "FIRST CLASS MOTOR CARRIER RATE" CONTAINED IN ITEM 3D OF TENDER NO. 47, RATINGS AND SCALE OF RATES, WHICH IN THAT TARIFF ARE CONSISTENTLY EXPRESSED IN TERMS OF CLASSES CORRESPONDING TO PERCENTAGES OF THE NUMBER 100. FOR EXAMPLE, ITEM 3030 OF TARIFF NO. 1-E, BEFORE BEING CANCELLED IN NOVEMBER 1952, NAMED A RATING OF CLASS "100" ON LESS-THAN-TRUCKLOAD SHIPMENTS OF FIRECRACKERS, TORPEDOES, ETC., AND A RATING OF CLASS "70" ON A VOLUME MINIMUM WEIGHT OF 20,000 POUNDS. ITEM 440 OF THE SAME TARIFF NAMED A RATING OF CLASS 5," SUBJECT TO A VOLUME MINIMUM WEIGHT OF 20,000 POUNDS, ON AMMUNITION FOR CANNON, BOMBS, ETC., AND ITEM 460 NAMED A RATING OF CLASS "45," SUBJECT TO A VOLUME MINIMUM WEIGHT OF 20,000 POUNDS, ON AMMUNITION FOR SMALL ARMS, ETC. TENDER NO. 47 AFFORDS A BASIS OF "75 PERCENT" OF FIRST CLASS" ON A MINIMUM TRUCKLOAD WEIGHT OF 20,000 POUNDS AND A BASIS OF "65 PERCENT OF FIRST CLASS, ON A VOLUME MINIMUM WEIGHT OF 30,000 POUNDS.

IF YOUR CONTENTION BE REGARDED AS CORRECT, IT WOULD APPEAR THAT IN THE CASE OF THE 75-PERCENT BASIS SPECIFIED IN THE TENDER, WHERE SHIPMENTS OF THE KINDS OF ARTICLES DESCRIBED IN THE ABOVE ITEM 440 WERE MADE, IT WOULD HAVE BEEN MORE ADVANTAGEOUS GENERALLY FOR THE GOVERNMENT TO HAVE AVAILED ITSELF OF THE BASIS IN TARIFF NO. 1-E, INDEPENDENTLY OF ANY AUTHORITY CONTAINED IN TENDER NO. 47, IN VIEW OF THE FACT THAT THE TARIFF AFFORDED THE BENEFIT OF A VOLUME, AS COMPARED WITH A TRUCKLOAD, MINIMUM WEIGHT SPECIFIED IN THE TENDER. THIS CIRCUMSTANCE WOULD SEEM TO SUGGEST THAT SINCE THE INTERESTED CARRIERS PRESUMABLY INTENDED TO AFFORD THE GOVERNMENT THE BENEFIT OF REDUCED RATES, THE CLASS-RATE SCALE, PRODUCING THE LOWEST CHARGES, PROPERLY WAS AVAILABLE ON THE TRAFFIC DESCRIBED IN TENDER NO. 47, UNTIL APRIL 22, 1952, WHEN SUPPLEMENT NO. 1 BECAME EFFECTIVE. SUCH AN INTENTION WOULD NOT HAVE BEEN OPERATIVE UNLESS THE TERM "75 PERCENT OF FIRST CLASS MOTOR CARRIER RATE" IN TENDER NO. 47 WAS VIEWED AS A RATE ASCERTAINABLE FROM ANY TARIFF, LIKE TARIFF NO. 100, NAMING CLASS RATES ON TRAFFIC FROM AND TO PLACES IDENTIFIED IN THE TENDER. NO REASON IS APPARENT WHY A DIFFERENT VIEW SHOULD BE TAKEN AS TO THE 65-PERCENT BASIS NAMED IN THE TENDER.

IT SEEMS CLEAR THAT THE CARRIERS UNDER THE STRESS OF COMPETITION SOUGHT, BY THIS TENDER, TO AFFORD RATES LOWER THAN THOSE SPECIFIED IN PUBLISHED TARIFFS, AND THE TENDER, LIKE A CONTRACT, SHOULD BE GIVEN A MEANING IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH IT WAS SUBMITTED AND IN THE LIGHT OF THE PRINCIPAL APPARENT PURPOSE THAT IT WAS INTENDED TO SERVE. THOMPSON V. BALTIMORE AND O.R. CO., 59 F.SUPP. 21, 35; MODIFIED 155 F.2D 767; CERTIORARI DENIED, 329 U.S. 761; ID. 762. SINCE THE CARRIERS DREW THE INSTRUMENT AND SELECTED THE TERMINOLOGY, ANY DOUBT OR AMBIGUITY SHOULD BE RESOLVED AGAINST THEM. SOUTHERN RAILWAY CO. V. COCA-COLA BOTTLING CO., 145 F.2D 304, 307, AND UNION WIRE ROPE CORP. V. ATCHISON, T. AND S.F. RY. CO., 66 F.2D 965. IT WOULD HAVE BEEN SIMPLE ENOUGH TO DESIGNATE WHAT "FIRST CLASS MOTOR CARRIER RATE" WAS REQUIRED TO BE USED IN ASCERTAINING THE 75 AND 65 PERCENT BASIS, AND SINCE THE CARRIERS, BY THEIR FAILURE TO PARTICULARIZE, WERE RESPONSIBLE FOR ANY DOUBT THAT NOW ARISES, THERE DOES NOT APPEAR TO BE ANY JUSTIFICATION FOR DISTURBING THE BASIS APPLIED BY THE ADMINISTRATIVE OFFICE IN PAYMENT OF THE PERTINENT VOUCHERS.

IN VIEW OF THE FOREGOING, THE PERTINENT SETTLEMENT CERTIFICATES SEEM TO BE CORRECT, AND ACCORDINGLY, THEY ARE SUSTAINED.