B-127061, APR. 20, 1956

B-127061: Apr 20, 1956

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INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28. THE RECORD SHOWS THAT THE SHIPMENT WAS TENDERED TO THE COOPER MOTOR LINES. THAT THE BILL OF LADING WAS UNROUTED. THAT THE SHIPMENT WAS DELIVERED TO THE VALLEY FORGE ARMY HOSPITAL AT PHOENIXVILLE. THIS CHARGE WAS COMPUTED ON THE BASIS OF A RATE OF 1 3/4 TIMES FIRST CLASS AND WAS PAID AS CLAIMED ON VOUCHER NO. 361962 OF THE MARCH 1953 ACCOUNTS OF ARMY DISBURSING OFFICER J. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF JANUARY 18. THE TRANSPORTATION DIVISION OF OUR OFFICE DETERMINED THAT THE THROUGH CHARGE ON THIS SHIPMENT SHOULD HAVE BEEN COMPUTED ON THE BASIS OF THE FIRST-CLASS-RATE. THE RESULTING OVERPAYMENT OF $38.86 WAS RECOVERED BY DEDUCTING THAT AMOUNT FROM THE CHARGES OTHERWISE PAYABLE ON ONE OF YOUR SUBSEQUENT BILLS.

B-127061, APR. 20, 1956

TO JONES MOTOR COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1955, REQUESTING REVIEW OF THE SETTLEMENT (CLAIM NO. TK 507449) OF JANUARY 18, 1955, WHICH DISALLOWED YOUR CLAIM FOR $27.84 ADDITIONAL TO THE CHARGE PREVIOUSLY PAID FOR TRANSPORTING A SHIPMENT OF WOODEN CHAIRS, WEIGHING 1,824 POUNDS, FROM ARMY DEPOT, GEORGIA, TO PHOENIXVILLE, PENNSYLVANIA, UNDER GOVERNMENT BILL OF LADING NO. WY-866953, DATED FEBRUARY 10, 1953.

THE RECORD SHOWS THAT THE SHIPMENT WAS TENDERED TO THE COOPER MOTOR LINES, INC., AT ARMY DEPOT, GEORGIA, THAT THE BILL OF LADING WAS UNROUTED, EXCEPT AS TO THE INITIAL CARRIER, AND THAT THE SHIPMENT WAS DELIVERED TO THE VALLEY FORGE ARMY HOSPITAL AT PHOENIXVILLE, PENNSYLVANIA, ON FEBRUARY 18, 1953, BY THE JONES MOTOR COMPANY, INC. FOR THE SERVICE PERFORMED IN TRANSPORTING THE SHIPMENT OVER THE JOINT LINE ROUTE OF THE COOPER MOTOR LINES, INC., AND THE JONES MOTOR COMPANY, INC., YOU CLAIMED $105.57 ON YOUR BILL NO. 43712, ETC. THIS CHARGE WAS COMPUTED ON THE BASIS OF A RATE OF 1 3/4 TIMES FIRST CLASS AND WAS PAID AS CLAIMED ON VOUCHER NO. 361962 OF THE MARCH 1953 ACCOUNTS OF ARMY DISBURSING OFFICER J. L. WHIPPLE. THEREAFTER, BY SUPPLEMENTAL BILL NO. 222781, YOU CLAIMED AN ADDITIONAL CHARGE OF $27.84, COMPUTED ON THE BASIS OF A DOUBLE-FIRST-CLASS RATE, AND YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF JANUARY 18, 1955. EXAMINING YOUR CLAIM, THE TRANSPORTATION DIVISION OF OUR OFFICE DETERMINED THAT THE THROUGH CHARGE ON THIS SHIPMENT SHOULD HAVE BEEN COMPUTED ON THE BASIS OF THE FIRST-CLASS-RATE, AND THE RESULTING OVERPAYMENT OF $38.86 WAS RECOVERED BY DEDUCTING THAT AMOUNT FROM THE CHARGES OTHERWISE PAYABLE ON ONE OF YOUR SUBSEQUENT BILLS. THE ENTIRE CONTROVERSY APPEARS TO BE WHETHER THE SHIPMENT SHOULD BE RATED DOUBLE FIRST CLASS UNDER ITEM 44575 1/2-F OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 4-G, MF-I.C.C. NO. 514, OR RATES FIRST CLASS UNDER ITEM 44578 1/2-I OF THE SAME TARIFF.

THE COOPER MOTOR LINES, INC., AND THE JONES MOTOR COMPANY, INC., ARE BOTH INDICATED IN THE RECORD AS BEING PARTIES TO THE CITED TARIFF NO. 4-G. THE COMMODITY INVOLVED IN THIS CASE IS COVERED BY, AND A RATING THEREON IS NAMED IN, ITEMS 44575 1/2-F AND 44578 1/2-I, PUBLISHED IN SUPPLEMENTS 43 AND 44, RESPECTIVELY, OF TARIFF NO. 4-G.

ITEM 44578 1/2-I PROVIDES A FIRST-CLASS RATING FOR APPLICATION ON LESS- TRUCKLOAD SHIPMENTS OF WOODEN CHAIRS, BUT IN CONNECTION WITH THE ARTICLES SHOWN IN THIS ITEM AS BEING SUBJECT TO THIS RATING REFERENCE IS MADE TO NOTES "J," "M," AND "T.' NOTE "J" CONTAINS THE STATEMENT: "NOT APPLICABLE TO THE EXTENT THAT RATINGS PUBLISHED IN ITEM 44575 1/2 WILL APPLY.' ALSO, UNDER NOTE ,T" IT IS STATED: "NOT APPLICABLE VIA THE FOLLOWING CARRIERS," AND THIS STATEMENT IS FOLLOWED BY A LIST OF THE NAMES OF VARIOUS CARRIERS, BUT NEITHER THE COOPER MOTOR LINES, INC., NOR THE JONES MOTOR COMPANY, INC., IS SHOWN IN THAT LIST. THE PROVISION SHOWN IN CONNECTION WITH NOTE "M" IS NOT PERTINENT IN THIS CASE. THUS, SINCE BOTH OF THE CARRIERS HERE INVOLVED WERE PARTIES TO THE CITED TARIFF NO. 41G, AND NEITHER WAS NAMED UNDER NOTE "T" IN THE LIST OF CARRIERS NOT PARTICIPATING IN THE PROVISIONS OF ITEM 44578 1/2 I, THE FIRST-CLASS RATING NAMED IN THIS ITEM SEEMS PROPER FOR APPLICATION ON THIS SHIPMENT UNLESS AN APPLICABLE RATING THEREON IS PUBLISHED IN ITEM 44575 1/2-F. IN THE LATTER EVENT, THE FIRST- CLASS RATING IN ITEM 44578 1/2-I COULD BE VIEWED AS HAVING NO APPLICATION BECAUSE OF THE RESTRICTIVE PROVISION UNDER NOTE "J" OF THAT ITEM.

ITEM 44575 1/2-F PROVIDES A THREE-TIMES-FIRST-CLASS RATING FOR APPLICATION ON LESS-TRUCKLOAD AND ANY QUANTITY SHIPMENTS OF WOODEN CHAIRS, AND IN CONNECTION WITH THE ARTICLES UPON WHICH A RATING IS NAMED IN THIS ITEM REFERENCE IS MADE TO NOTE "H.' UNDER NOTE "H" IS THE STATEMENT: ,APPLICABLE ONLY AS FOLLOWS," AND THEN THERE ARE LISTED A NUMBER OF CARRIERS, THE NAME OF EACH BEING PRECEDED BY THE WORD "VIA.' AFTER THE NAMES OF MOST OF THE CARRIERS IN THE LIST SOME PARTICULAR QUALIFICATION IS GIVEN, SUCH AS APPLICABLE ONLY ON TRAFFIC HANDLED DIRECT, APPLICABLE ONLY WHEN HANDLED JOINTLY WITH ANOTHER CARRIER, APPLICABLE WHEN HANDLED EITHER DIRECT OR JOINTLY WITH ANOTHER CARRIER, OR APPLICABLE ONLY WHEN THE SHIPMENT CONSISTS OF CERTAIN SPECIFIED COMMODITIES, ETC. UNDER THE CIRCUMSTANCES THE CONCLUSION SEEMS INESCAPABLE THAT THE PROVISIONS OF THAT ITEM APPLY ONLY IN CONNECTION WITH THE ENUMERATED CARRIERS AND ONLY TO THE EXTENT SHOWN IN CONNECTION WITH THE NAME OF EACH CARRIER LISTED.

THE THREE-TIMES-FIRST-CLASS RATING IS SUBJECT TO THE PROVISIONS OF NOTE "F," AND THIS NOTE PROVIDES THAT: " WHEN VIA COOPER MOTOR LINES, INC., OR MASON AND DIXON LINES, INC., THE, ON BOTH TRAFFIC HANDLED DIRECT AND JOINT LINE TRAFFIC, RATING 2TL (TWO TIMES FIRST CLASS) WILL APPLY.' THE COOPER MOTOR LINES, INC., IS SHOWN UNDER NOTE "H" AS ONE OF THE CARRIERS "VIA" WHICH THE PROVISIONS OF ITEM 44575 1/2-F APPLY, BOTH FOR TRAFFIC HANDLED DIRECT AND IN JOINT-LINE TRAFFIC. ON THE OTHER HAND, THE JONES MOTOR COMPANY, INC., IS NOT NAMED IN NOTE "H," WHICH APPARENTLY LISTS ALL THE LINES IN CONNECTION WITH WHICH THE PROVISIONS OF THIS ITEM APPLY. THE TWO -TIMES-FIRST-CLASS RATING APPEARS PROPER FOR APPLICATION ON SHIPMENTS TRANSPORTED DIRECT BY THE COOPER MOTOR LINES, INC., OR IN JOINT-LINE MOVEMENTS WITH OTHER CARRIERS NAMED IN ITEM 44575 1/2-F UNDER NOTE "H," WHICH HAVE THE PROPER QUALIFICATION. THE JONES MOTOR COMPANY, INC., HOWEVER, IS NOT NAMED IN THIS ITEM IN WHICH THE PROVISIONS THEREOF ARE "APPLICABLE ONLY * * * VIA" CERTAIN NAMED CARRIERS, AND IN THIS SITUATION THE TWO TIMES-FIRST-CLASS RATING APPEARS CLEARLY TO BE INAPPLICABLE ON A JOINT LINE HAUL WHICH INCLUDES THE JONES MOTOR COMPANY, INC.

YOUR LETTER OF MAY 31, 1955, CONCERNING THIS CASE, CONTAINS THE FOLLOWING STATEMENT:

"PERHAPS YOU ARE NOT FAMILIAR WITH THE SET-UP WITH THE SOUTHERN MOTOR CARRIERS RATE CONFERENCE. THEY DOCKET ALL PROPOSALS AND ALL CARRIERS ARE NOTIFIED. IF ANY CARRIER DOES NOT WISH TO CONCUR, THEY IN TURN ADVISE THE CONFERENCE AND THEY ARE RESTRICTED. HENCEFORTH, JONES MOTOR CO., INC. CONCURRED IN THE PUBLICATION BY COOPER MOTOR LINES AND THEREFORE THE RATES ARE CORRECT.'

A TARIFF MUST BE CONSTRUED LIKE OTHER DOCUMENTS, BY GIVING EFFECT TO ALL PARTS THEREOF, AND EVERY WORD, CLAUSE, AND SENTENCE CONSIDERED IN ARRIVING AT THE MEANING OF ANY PORTION. UPDIKE GRAIN CORP. V. ST. LOUIS AND SAN FRANCISCO RAILWAY CO., 52 F.2D 94; VAN DUSEN HARRINGTON CO. V. NORTHERN PACIFIC RAILWAY, 32 F.2D 466; LOUISVILLE WATER CO. V. ILLINOIS CENTRAL RAILROAD CO., 14 F.SUPP. 301. ALSO, TARIFFS ARE SUPPOSED TO BE EXPRESSED IN PLAIN TERMS (SWIFT AND CO. V. UNITED STATES, 255 F. 291; A. D. COOK INC., V. BALTIMORE AND OHIO RAILROAD COMPANY, 241 I.C.C. 681), WORDS SHOULD BE GIVEN THEIR GENERALLY ACCEPTED MEANING (STICKELL AND SONS V. PENNSYLVANIA RAILROAD, 151 I.C.C. 364; UNITED STATES GYPSUM CO. V. STATEN ISLAND RAPID TRANSIT COMPANY, 151 I.C.C. 641), AND THE INTENTION OF THE FRAMERS IS NOT CONTROLLING. SPEIR AND CO. V. ATLANTA AND WEST POINT RAILROAD CO., 151 I.I.C. 705. THUS, THERE SEEMS TO BE NO REQUIREMENT THAT THIS TRAFFIC BE CONSTRUED IN THE LIGHT OF "THE SET-UP WITH THE SOUTHERN MOTOR CARRIERS RATE CONFERENCE.' FURTHER, ANY AMBIGUITY IN A TARIFF SHOULD BE CONSTRUED AGAINST THE FRAMER. WILLINGHAM V. SELIGMAN, 179 F.2D 257; KEITH-SIMMONS CO., INC., V. NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY CO., 256 I.C.C. 235; RAYMOND CITY COAL AND TRANSPORTATION CORP. V. NEW YORK CENTRAL RAILROAD COMPANY, 103 F.2D 56; NORTHWEST STEEL CO. V. DIRECTOR GENERAL, 68 I.C.C. 195.

IN THE LIGHT OF THE FOREGOING, IT IS NOT UNDERSTOOD HOW THE JONES MOTOR COMPANY, INC., CAN BE SAID TO HAVE CONCURRED "IN THE PUBLICATION BY COOPER MOTOR LINES" OF THE TWO-TIMES-FIRST-CLASS RATING. WHILE THE JONES MOTOR COMPANY, INC.--- MERELY BY REASON OF ITS PARTICIPATION IN THE PROVISIONS OF ITEM 44578 L/2-I---MIGHT BE SAID TO HAVE CONCURRED IN THE STATEMENT IN NOTE "J" OF THAT ITEM THAT THE RATING NAMED IN THAT ITEM WAS NOT APPLICABLE TO THE EXTENT THAT "RATINGS PUBLISHED IN ITEM 44575 L/2 WILL APPLY," IT SEEMS CLEAR THAT THE RATINGS PUBLISHED IN ITEM 44575 1/2 DID NOT APPLY FOR ACCOUNT OF THAT LINE SINCE NOTE "H" OF ITEM 44575 1/2 CONTAINED THE SPECIFIC STATEMENT THAT THE PROVISIONS OF THAT ITEM WERE "APPLICABLE ONLY AS FOLLOWS," AND THEN NAMED THE LINES VIA WHICH THE PROVISIONS APPLIED, NOT INCLUDING THE JONES MOTOR CO., INC. AN EXPRESSION IN A CONTRACT OF ONE OR MORE THINGS OF A CLASS IMPLIES THE EXCLUSION OF ALL NOT EXPRESSED, ALTHOUGH ALL WOULD HAVE BEEN IMPLIED HAD NONE BEEN EXPRESSED. MANNERS V. MOROSCO, 258 F. 557, 560; TOWER CORP. V. MORRIS, 153 S.W.2D 654, 659. THE NAMING IN ITEM 44575 1/2-F OF THE LINES VIA WHICH ITS PROVISIONS WERE APPLICABLE NECESSARILY EXCLUDED ALL LINES NOT NAMED THEREIN. IN ANY EVENT IT APPEARS THAT THE PERTINENT TARIFF PROVISIONS ARE INDEFINITE AND SUSCEPTIBLE OF AT LEAST TWO INTERPRETATIONS, INCLUDING THAT WHICH REQUIRES THE APPLICATION OF THE FIRST-CLASS RATING CONSISTENT WITH THE PRINCIPLE THAT ANY DOUBT SHOULD BE RESOLVED IN FAVOR OF THE SHIPPERS.

ACCORDINGLY, THE FIRST-CLASS RATING PUBLISHED IN ITEM 44578 1/2-I OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 4-G APPEARS TO BE PROPER FOR APPLICATION ON THE SHIPMENT HERE CONCERNED AND, THEREFORE, THE SETTLEMENT IS SUSTAINED.