B-122444, JUN. 28, 1956

B-122444: Jun 28, 1956

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TO AERO FINANCE CORPORATION: REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE AUDIT ACTION TAKEN ON YOUR BILL NO. 187. TO WHICH REFERENCE IS MADE IN CAM NO. 1526-B. PAYMENT WAS MADE ACCORDINGLY BY A MARINE CORPS DISBURSING OFFICER. IN THE AUDIT OF YOUR BILL IT WAS DETERMINED THAT THE ALLOWABLE CHARGES SHOULD BE COMPUTED ON THE BASIS OF 2. THIS DISTANCE IS DETERMINED ON THE BASIS OF DIRECTION FINDING CHART 26. RESULTING IN AN OVERPAYMENT OF $123.13 WHICH YOU HAVE REFUNDED UNDER PROTEST. - "WHEN THE TERMS OF SUCH CONTRACT ARE IN ACCORDANCE WITH THE PUBLISHED TARIFFS OF THE CARRIER.'. IT IS YOUR CONTENTION THAT THERE WAS NO AUTHORITY FOR USING THE DISTANCE OF 2. IT IS TRUE. TO WHICH YOU WERE A PARTY.

B-122444, JUN. 28, 1956

TO AERO FINANCE CORPORATION:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE AUDIT ACTION TAKEN ON YOUR BILL NO. 187, COVERING THE TRANSPORTATION, IN CHARTER PLANE SERVICE, OF 41 MEMBERS OF THE MARINE CORPS FROM BEAUFORT, SOUTH CAROLINA, TO SAN DIEGO, CALIFORNIA, UNDER TRANSPORTATION REQUEST NO. NM 206,346, COMMERCIAL AIR MOVEMENT (CAM) NO. 1526-B, IN JANUARY 1952.

FOR THIS SERVICE, YOU CLAIMED CHARGES BASED ON 2,218 LIVE MILES, INDICATED AS BEING DERIVED FROM AIRWAYS DISTANCE CHARTS, CODE B, TO WHICH REFERENCE IS MADE IN CAM NO. 1526-B, AND PAYMENT WAS MADE ACCORDINGLY BY A MARINE CORPS DISBURSING OFFICER. IN THE AUDIT OF YOUR BILL IT WAS DETERMINED THAT THE ALLOWABLE CHARGES SHOULD BE COMPUTED ON THE BASIS OF 2,119 LIVE MILES. THIS DISTANCE IS DETERMINED ON THE BASIS OF DIRECTION FINDING CHART 26, D.F., PUBLISHED BY THE UNITED STATES COAST AND GEODETIC SURVEY AND USED AS SOURCE CODE D FROM BEAUFORT TO MACON, GEORGIA, SCALED TO 175 MILES, AND DEPARTMENT OF COMMERCE PUBLICATION NO. 238, USED AS SOURCE CODE A FROM MACON TO SAN DIEGO, 1944 MILES, RESULTING IN AN OVERPAYMENT OF $123.13 WHICH YOU HAVE REFUNDED UNDER PROTEST.

YOU SUBMIT BILL NO. 187-A FOR THE REFUNDED AMOUNT OF $123.13, URGING THAT THE GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO ALTER THE TERMS OF A CONTRACT--- YOU REFER TO THE "CHARTER CERTIFICATE" AS BEING A "FORMALIZATION OF THE CONTRACT ISSUED BETWEEN THE GOVERNMENT" AND YOUR COMPANY--- "WHEN THE TERMS OF SUCH CONTRACT ARE IN ACCORDANCE WITH THE PUBLISHED TARIFFS OF THE CARRIER.' IT IS YOUR CONTENTION THAT THERE WAS NO AUTHORITY FOR USING THE DISTANCE OF 2,119 MILES APPLIED BY OUR TRANSPORTATION DIVISION IN THE COMPUTATION OF THE CHARGES.

IT IS TRUE, AS YOU ASSERT, THAT JOINT MILITARY IRREGULAR AIR TRANSPORTATION AGREEMENT NO. 1 (ACTA), IN EFFECT AT THE TIME OF THIS SERVICE, AND TO WHICH YOU WERE A PARTY, PROVIDED IN ARTICLE III THAT--

"EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, MILITARY TRAFFIC WILL BE ACCEPTED AND TRANSPORTED BY THE AIR CARRIERS SUBJECT TO ALL APPLICABLE PROVISIONS OF ALL OF THEIR RIFFS.'

HOWEVER, IT IS FURTHER PROVIDED IN ARTICLE I, PARAGRAPH (E), OF THAT AGREEMENT, DEFINING THE TERM "TARIFFS," THAT---

"THE TERM "TARIFFS" AS USED HEREIN MEANS THE TARIFFS LAWFULLY ON FILE WITH THE CIVIL AERONAUTICS BOARD AND/OR OTHER APPROPRIATE REGULATORY AGENCIES * * * BUT * * * SHALL NOT INCLUDE ANY TARIFF OR TARIFF PROVISION APPLYING SPECIFICALLY OR EXCLUSIVELY TO MILITARY TRAFFIC.'

IN YOUR REQUEST FOR REVIEW YOU RELY UPON THE FOLLOWING PROVISION PUBLISHED IN 3RD REVISED PAGE 10 OF AGENT JOHN J. KLAK'S MILITARY TRAFFIC TARIFF NO. 1, C.A.B. NO. 3, EFFECTIVE NOVEMBER 7, 1951, AS PRECLUDING THE USE OF DEPARTMENT OF COMMERCE PUBLICATION NO. 238:

"MILEAGE WILL BE COMPUTED BY REFERENCE TO CURRENT UNITED STATES COAST AND GEODETIC SURVEY CHARTS AND THE ROUTE USED WILL BE THE MOST DIRECT ALONG ESTABLISHED CIVIL AIRWAYS WHEN ACTICAL.'

IT SEEMS HARDLY NECESSARY TO POINT OUT THAT, AS THIS PROVISION IS PUBLISHED IN A "MILITARY TRAFFIC TARIFF" AND RELATES SPECIFICALLY TO DEFINED MILITARY TRAFFIC, RELIANCE UPON IT AS PRECLUDING THE USE OF DEPARTMENT OF COMMERCE PUBLICATION NO. 238 WOULD BE DIRECTLY CONTRARY TO THE QUOTED PROVISION OF ARTICLE I OF JOINT MILITARY IRREGULAR AIR TRANSPORTATION AGREEMENT NO. 1, EVEN IF THE USE OF DEPARTMENT OF COMMERCE PUBLICATION NO. 238 WERE TO BE CONSIDERED AS PRECLUDED BY THE QUOTED PROVISION OF THE TARIFF.

THE SERVICE HERE INVOLVED WAS PROCURED UNDER A SO-CALLED CHARTER CERTIFICATE FORM FOR CAM NO. 1526-B, WHICH, UNDER THE HEADING "GENERAL PROVISIONS," SHOWS (1) THE LETTER CODES FOR THE SOURCES OF THE MILEAGES TO BE USED, (2) THE IDENTITIES OF SUCH SOURCES, AND (3) AN INDICATION AS TO WHEN THE VARIOUS SOURCES SHOULD BE USED. CODE A RELATES TO "DEPARTMENT OF COMMERCE PUBLICATION 238," AND IS LISTED FIRST AS A SOURCE OF MILEAGES, REQUIRED TO BE USED "GENERALLY.' CODE B, SECOND IN THE ORDER OF LISTING, RELATES TO "AIRWAYS DISTANCE CHARTS" AND IS FOR USE AS A "FIRST ALTERNATE" TO THE CODE A SOURCE OF MILEAGES. CODE C, THIRD IN THE ORDER OF LISTING, RELATES TO "AIRWAYS DISTANCE CHARTS" AND IS FOR USE AS A "FIRST ALTERNATE" TO THE CODE A SOURCE OF MILEAGES. CODE C, THIRD IN THE ORDER OF LISTING, RELATES TO "CAB MILEAGE BOOK NO. 1 AND/OR 2," AND IS FOR USE AS A ,SECOND ALTERNATE OR AS PUBLISHED TARIFFS REQUIRE.' CODE D, FOURTH AND LAST IN THE ORDER OF LISTING, RELATES TO "OTHER" SOURCES OF MILEAGE, AND IS FOR USE AS A "THIRD ALTERNATE.' IT IS TO BE NOTED THAT THIS FORM WAS SUBMITTED ON BEHALF OF THE CARRIERS JANUARY 18, 1952, AND WAS ACCEPTED ON BEHALF OF THE GOVERNMENT ON THE SAME DAY, TO COVER THE PARTICULAR MOVEMENT HERE INVOLVED, FOR WHICH THE COVERING TRANSPORTATION REQUEST WAS ISSUED JANUARY 23, 1952.

AS NOTED ABOVE, 3RD REVISED PAGE 10 OF AGENT KLAK'S TARIFF NO. 1, C.A.B. NO. 3, REFERS TO ,CURRENT UNITED STATES COAST AND GEODETIC SURVEY CHARTS" AS BEING THE SOURCE OF THE MILEAGES TO BE USED AS THE BASIS OF ARRIVING AT CHARGES FOR THE TRANSPORTATION SERVICES COVERED BY IT. PUBLICATION NO. 238, CODE A IN THE CHARTER CERTIFICATE, IS MORE FULLY DESCRIBED AS "U.S. DEPARTMENT OF COMMERCE COAST AND GEODETIC SURVEY AIR-LINE DISTANCES BETWEEN CITIES IN THE UNITED STATES.' IT APPEARS THAT THE "AIRWAYS DISTANCE CHARTS," ASSOCIATED IN THE CHARTER CERTIFICATE WITH CODE B, SIMILARLY ARE COAST AND GEODETIC SURVEY PUBLICATIONS. AIR-LINE DISTANCES MAY NO. 3064, SAID TO BE IN THE CODE B CATEGORY, SHOWS DIRECT AIR DISTANCES BETWEEN CITIES AND YIELDS SUBSTANTIALLY THE SAME MILEAGES AS THE SEALING PROCESS ON THE SO CALLED "DF" CHARTS, WHICH ARE SAID TO FALL INTO THE CODE D CATEGORY IN THE CHARTER CERTIFICATE. THE LAST-NAMED CHARTS OR MAPS ARE ALSO COMPILED BY THE COAST AND GEODETIC SURVEY, UNDER THE AUTHORITY OF THE SECRETARY OF COMMERCE.

IT SHOULD BE CLEAR, FROM THE FACT THAT THE COAST AND GEODETIC SURVEY HAS ISSUED VARIOUS CHARTS OR PUBLICATIONS USEFUL IN DETERMINING AIRLINE DISTANCES BETWEEN CITIES, THAT THE PERTINENT PROVISION IN AGENT KLAK'S TARIFF NO. 1, 3RD REVISED PAGE 10, IS LACKING IN ESSENTIAL CLARITY TO SIGNIFY THAT THE MILEAGES FOR TARIFF PURPOSES ARE TO BE OBTAINED EXCLUSIVELY FROM "AIRWAYS DISTANCE CHARTS," AS YOU SEEM TO CONCLUDE IS THE CASE HERE. THE CONCLUSION THAT PUBLICATION NO. 238 MAY PROPERLY BE VIEWED AS WITHIN THE SOURCES INDEFINITELY DESCRIBED IN THE TARIFF IS STRENGTHENED BY REASON OF THE FULLER DESCRIPTION OF THE PUBLICATION SPECIFIED, AS CONTAINING THE MILEAGE INFORMATION, IN 4TH REVISED PAGE 10 OF THE TARIFF, EFFECTIVE MARCH 27, 1952, A FEW MONTHS AFTER THE EFFECTIVE DATE OF 3RD REVISED PAGE 10. THE 4TH REVISED PAGE 10 IDENTIFIES THE PUBLICATION USED IN OUR AUDIT, LACKING ONLY THE WORDS "SPECIAL PUBLICATION NO. 238" IN ORDER TO MAKE IT IDENTICAL WITH SUCH TITLE. THE REFERENCE "/C)" IS EXPLAINED IN THE TARIFF AS DENOTING ,CHANGES IN WORDING WHICH RESULT IN NEITHER INCREASES OR DECREASES.'

IT IS WELL SETTLED THAT TARIFFS MUST BE SPECIFIC IN THEIR REQUIREMENTS. SEE 14 CFR 221.38/A) (1), PERTAINING TO THE CONTENTS OF TARIFFS OF AIR CARRIERS, WHEREIN IT IS SPECIFICALLY SET FORTH THAT THE TARIFFS SHALL 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. EASTERN A.L. REROUTING RULE, 11 C.A.B. 278, 281, AND INVESTIGATION--- ACCUMULATION, ASSEMBLY, AND DIST. RULES, 12 C.A.B. 337, 343. IT HAS BEEN HELD BY THE INTERSTATE COMMERCE COMMISSION THAT REASONABLE DOUBTS AS TO THE MEANING OF TARIFF PROVISIONS MUST BE RESOLVED IN FAVOR OF THE SHIPPER AND AGAINST THE CARRIERS RESPONSIBLE FOR THEM. WABASH FIBRE BOX CO. V. DENNY MOTOR TRANSFER CO., 18 M.C.C. 291, 293. SEE, ALSO, IN THIS CONNECTION, 13 C.J.S. CARRIERS, SECTION 303.

THUS, IT WOULD APPEAR THAT, ALTHOUGH AGENT KLAK'S TARIFF NO. 1 ESTABLISHES NO PARTICULAR PUBLICATION BY NUMBER AS BEING THE SOLE OR PRIMARY SOURCE OF MILEAGE INFORMATION, THE GENERAL LANGUAGE USED IN 4TH REVISED PARAGRAPH 10 IS PRACTICALLY THE SAME AS THE TITLE OF PUBLICATION NO. 238. IN ANY EVENT, SINCE THERE IS REASONABLE GROUND FOR THE ASSUMPTION THAT 3RD REVISED PAGE 10 OF AGENT KLAK'S TARIFF NO. 1 IS INDEFINITE, ANY DOUBT THAT THEREBY ARISES MUST BE RESOLVED IN FAVOR OF THE GOVERNMENT IN ACCORDANCE WITH FIRMLY-ESTABLISHED PRINCIPLES OF TARIFF INTERPRETATION.

ON THIS RECORD THE AUDIT ACTION IN THIS MATTER DOES NOT APPEAR TO HAVE BEEN IN ERROR, AND, ACCORDINGLY, IT IS SUSTAINED.