B-126199, AUGUST 15, 1956, 36 COMP. GEN. 119

B-126199, AUGUST 15, 1956, 36 COMP. GEN. 119

TRANSPORTATION - MOTOR CARRIER SHIPMENT - SECTION 22 QUOTATION - MINIMUM VOLUME V. TRUCKLOAD WEIGHT - TWO BILLS OF LADING THE FREIGHT CHARGES ON A GOVERNMENT SHIPMENT WHICH WAS TENDERED TO A MOTOR CARRIER IN ONE LOT UNDER A SECTION 22 QUOTATION SPECIFYING ONLY A MINIMUM WEIGHT BASIS SHOULD BE COMPUTED ON THE VOLUME MINIMUM WEIGHT AS DISTINGUISHED FROM TRUCKLOAD MINIMUM WEIGHT EVEN THOUGH THE SHIPMENT MAY EXCEED THE CAPACITY OF THE LARGEST VEHICLE AVAILABLE AND MUST BE TRANSPORTED IN MORE THAN ONE TRUCK, AND THE FACT THAT TWO BILLS OF LADING, WHICH WERE CROSS REFERENCED TO INDICATE THAT THEY WERE PARTS OF THE SAME SHIPMENT, WERE ISSUED CANNOT DEPRIVE THE SHIPPER OF THE RATE APPLICABLE TO ONE SHIPMENT.

TO EAST TEXAS MOTOR FREIGHT LINES, AUGUST 15, 1956:

REFERENCE IS MADE TO YOUR LETTER REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM, PER BILL NO. 4680-A, FOR $75.02 ADDITIONAL TRANSPORTATION CHARGES ON TWO SHIPMENTS, WEIGHING 28,188 POUNDS EACH, OF EMPTY, UNPRIMED, CANNON CARTRIDGE SHELLS OR CASES TRANSPORTED FROM THE RAVENNA ARSENAL, ATLAS, OHIO, TO LONE STAR ORDNANCE PLANT, DEFENSE, TEXAS, UNDER GOVERNMENT BILLS OF LADING NOS. WY-419298 AND WY-419299, DATED JULY 11, 1952.

THE APPLICABLE RATES OR CHARGES FOR THIS SERVICE WERE QUOTED IN A SECTION 22 RATE TENDER SHOWN AS TENDER NO. 56, EFFECTIVE JUNE 25, 1952, OF THE ARKANSAS MOTOR FREIGHT LINES, INC., AND THE HANCOCK-TRUCKING, INCORPORATED. PURSUANT TO THIS TENDER, YOU CLAIMED ORIGINALLY AND WERE PAID $1,166.98 ($583.49 ON EACH BILL OF LADING), COMPUTED AT THE ACTUAL WEIGHT AT A RATE OF $2.07 PER 100 POUNDS. THEREAFTER, YOU CLAIMED $75.02 ADDITIONAL CHARGES, RESULTING FROM YOUR RECOMPUTATION OF FREIGHT CHARGES BY USE OF THE SAME RATE AT A MINIMUM WEIGHT OF 30,000 POUNDS ON EACH BILL OF LADING. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT DATED FEBRUARY 4, 1955, CLAIM NO. TK 510128. YOU CONTEND IN YOUR REQUEST FOR REVIEW THAT THE 30,000 POUND MINIMUM WEIGHT QUOTED IN " TENDER NO. 56" MEANT A TRUCKLOAD MINIMUM WEIGHT RATHER THAN A VOLUME MINIMUM WEIGHT, AND THAT CROSS REFERENCING OF THE BILLS OF LADING DID NOT REMOVE THE APPLICATION OF THE TRUCKLOAD MINIMUM.

A VOLUME MINIMUM IS DISTINGUISHED FROM A TRUCKLOAD MINIMUM IN THAT THE VOLUME RATE APPLIES WHEN A SHIPPER TENDERS THE VOLUME MINIMUM WEIGHT OF A COMMODITY FOR TRANSPORTATION AT ONE TIME, EVEN THOUGH IT MAY EXCEED THE CARRYING CAPACITY OF THE LARGEST VEHICLE AVAILABLE AND MUST BE TRANSPORTED IN TWO OR MORE VEHICLES; WHEREAS, A TRUCKLOAD MINIMUM IS GENERALLY UNDERSTOOD TO BE THE QUANTITY WHICH A CARRIER CAN TRANSPORT IN A SINGLE VEHICLE. STOVES FROM ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641, 643 (FOOTNOTE); GULF PORTS--- ALABAMA, GEORGIA AND TENNESSEE--- COMMODITY RATES, 10 M.C.C. 106 (FOOTNOTE). TENDER NO. 56 SPECIFIES NEITHER VOLUME NOR TRUCKLOAD MINIMUM WEIGHT BUT MERELY PROVIDES," MINIMUM WEIGHT 30,000 POUNDS.' HOWEVER, THE TENDER DOES CONTAIN THE PROVISION THAT THE " RATES OR CHARGES ARE SUBJECT TO THE PROVISIONS OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11.' RULE 13 OF THIS CLASSIFICATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 2 (A) A " VOLUME" RATING IS A RATING IN CONNECTION WITH WHICH " VOL., MIN. WT.' IS PROVIDED.

(E) EXCEPT AS OTHERWISE PROVIDED, A " TRUCKLOAD" RATING IS A RATING IN CONNECTION WITH WHICH " MIN. WT. FACTOR" IS PROVIDED.

SEC. 3 (A) VOLUME OR TRUCKLOAD RATINGS OR RATES APPLY ONLY WHEN A VOLUME OR TRUCKLOAD OF FREIGHT IS SHIPPED FROM ONE POINT * * * IN ONE DAY BY ONE SHIPPER,"ON ONE BILL OF LADING," FOR DELIVERY TO ONE CONSIGNEE AT ONE DESTINATION. * * *

IT APPEARS THAT TENDER NO. 56 DOES NOT MEET THE REQUIREMENTS OF RULE 13, SINCE NEITHER A VOLUME MINIMUM WEIGHT NOR A MINIMUM WEIGHT FACTOR, AS SUCH, HAS BEEN PROVIDED. MOREOVER, THROUGHOUT NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11 A "VOLUME RATINGS" COLUMN IS LISTED ALONG WITH A COLUMN OF VOLUME MINIMUM WEIGHTS WHICH ARE STATED IN POUNDS. TRUCKLOAD RATINGS APPEAR TO BE THE EXCEPTION, AND WHEN STATED, ARE SPECIFICALLY NOTED AS SUCH IN THE VOLUME RATINGS COLUMN, AND A CORRESPONDING MINIMUM WEIGHT FACTOR, NOT EXPRESSED IN POUNDS, IS LISTED IN THE VOLUME MINIMUM WEIGHT COLUMN. PROVISION IS MADE IN RULE 34 OF THE CLASSIFICATION FOR THE CONVERSION OF MINIMUM WEIGHT FACTORS TO POUNDS. THEREFORE, IN THE LIGHT OF THE ABOVE CIRCUMSTANCES, IT SEEMS REASONABLE TO CONCLUDE THAT A "MINIMUM WEIGHT" STATED IN POUNDS WOULD REFER TO A VOLUME MINIMUM WEIGHT RATHER THAN TO A TRUCKLOAD MINIMUM WEIGHT. ACCORDINGLY, IN LINE WITH THE RULE THAT AMBIGUOUS INSTRUMENTS ARE TO BE CONSTRUED AGAINST THE MAKER, THE GOVERNMENT IS ENTITLED TO THE MORE FAVORABLE INTERPRETATION, NAMELY, THAT A 30,000 POUND VOLUME MINIMUM WEIGHT WAS INTENDED.

IT HAS BEEN ADMINISTRATIVELY REPORTED THAT THE SUBJECT SHIPMENT WAS TENDERED TO THE ORIGIN CARRIER--- HANCOCK TRUCKING, INCORPORATED--- AS A VOLUME SHIPMENT. THE BILLS OF LADING COVERING THE SHIPMENT CONFIRM THE FACT THAT THE FREIGHT WAS SHIPPED FROM ONE POINT, IN ONE DAY, BY ONE SHIPPER, FOR DELIVERY TO ONE CONSIGNEE AT ONE DESTINATION AS REQUIRED BY SECTION 3 (A) OF RULE 13 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11. WHILE IT IS TRUE THAT TWO BILLS OF LADING WERE ISSUED, THEY WERE SO REFERENCED AS TO INDICATE THAT THEY WERE PARTS OF THE SAME SHIPMENT. WHERE FREIGHT IS TENDERED AS ONE SHIPMENT AND ACCEPTED AND MOVED AS SUCH, THE MERE CIRCUMSTANCE THAT MORE THAN ONE BILL OF LADING IS ISSUED CANNOT BE HELD TO DEPRIVE THE SHIPPER OF THE RATE SINCE THE SUBSTANCE OF THE TRANSACTION AND NOT THE INCIDENTAL FORM OF BILLING IS CONTROLLING. EXPOSITION COTTON MILLS V. SOUTHERN RY. CO., 234 I.C.C. 441, 443; ALSO, SEE WILLINGHAM V. SELIGMAN, 179 F.2D 257.

THE SETTLEMENT ACTION TAKEN BY OUR TRANSPORTATION DIVISION IS CONSISTENT WITH THE FOREGOING AND, THEREFORE, IT IS SUSTAINED.