B-128604, DEC. 3, 1956

B-128604: Dec 3, 1956

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INC.: REFERENCE IS MADE TO YOUR LETTER CONCERNING CAM 1356-B. WHEREIN YOU RECLAIM THE SUM OF $319.79 WHICH WAS REFUNDED UNDER PROTEST AT THE REQUEST OF OUR TRANSPORTATION DIVISION. THE SUM IN QUESTION REPRESENTS THE DIFFERENCE IN THE AMOUNT YOU WERE PAID ADMINISTRATIVELY FOR THE TRANSPORTATION OF 21 PASSENGERS. THE RECORD SHOWS THAT THE PASSENGERS INVOLVED WERE TRANSPORTED IN CHARTER AIR SERVICE. ON WHICH REFERENCE WAS MADE TO COMMERCIAL AIR MOVEMENT (CAM) NO. 1356-B. WAS EXECUTED ON JANUARY 10. IT SHOWS THAT THE CHARGES CLAIMED FOR THE SERVICES IN QUESTION WERE COMPUTED ON BASIS OF 2. THE CHARTER CERTIFICATE INDICATES THAT BOTH THE LIVE AND FERRY MILES WERE DETERMINED FROM AIRWAYS DISTANCE CHARTS.

B-128604, DEC. 3, 1956

TO GENERAL AIRWAYS, INC.:

REFERENCE IS MADE TO YOUR LETTER CONCERNING CAM 1356-B, CARRIER'S BILL NO. 145-A, WHEREIN YOU RECLAIM THE SUM OF $319.79 WHICH WAS REFUNDED UNDER PROTEST AT THE REQUEST OF OUR TRANSPORTATION DIVISION. THE SUM IN QUESTION REPRESENTS THE DIFFERENCE IN THE AMOUNT YOU WERE PAID ADMINISTRATIVELY FOR THE TRANSPORTATION OF 21 PASSENGERS, WITH BAGGAGE, FROM FORT LAWTON (SEATTLE), WASHINGTON, TO FORT JACKSON (COLUMBIA), SOUTH CAROLINA, ON JANUARY 8, 1952, AND THE MAXIMUM ALLOWABLE CHARGES FOR THE SERVICES IN QUESTION, AS DETERMINED BY OUR TRANSPORTATION DIVISION IN THE AUDIT OF YOUR ORIGINAL PAID BILL.

THE RECORD SHOWS THAT THE PASSENGERS INVOLVED WERE TRANSPORTED IN CHARTER AIR SERVICE, IN A DC-3 TYPE PLANE, PURSUANT TO TRANSPORTATION REQUEST NO. WQ-20,093,391, DATED JANUARY 8, 1952, ON WHICH REFERENCE WAS MADE TO COMMERCIAL AIR MOVEMENT (CAM) NO. 1356-B. A CHARTER AIR CERTIFICATE, BEARING THIS CAM NUMBER, WAS EXECUTED ON JANUARY 10, 1952. IT SHOWS THAT THE CHARGES CLAIMED FOR THE SERVICES IN QUESTION WERE COMPUTED ON BASIS OF 2,699 LIVE MILES FROM SEATTLE, WASHINGTON, TO COLUMBIA, SOUTH CAROLINA, AND 644 FERRY MILES FROM COLUMBIA, SOUTH CAROLINA, TO NEWARK, NEW JERSEY, AT THE RATES OF $0.80 AND $0.50 PER LIVE AND FERRY MILE, RESPECTIVELY. THE CHARTER CERTIFICATE INDICATES THAT BOTH THE LIVE AND FERRY MILES WERE DETERMINED FROM AIRWAYS DISTANCE CHARTS, OR SOURCE CODE B. IN THE AUDIT OF THE CHARGES PAID ADMINISTRATIVELY, OUR TRANSPORTATION DIVISION DETERMINED THAT THE MAXIMUM ALLOWABLE CHARGES FOR THE SERVICES INVOLVED SHOULD BE COMPUTED BY USING 2,326 LIVE MILES FROM SEATTLE, WASHINGTON, TO COLUMBIA, SOUTH CAROLINA, AND 598 FERRY MILES FROM COLUMBIA, SOUTH CAROLINA, TO NEWARK, NEW JERSEY, AT THE RATES OF $0.80 AND $0.50 PER MILE, RESPECTIVELY, SUCH DISTANCES BEING DETERMINED BY THE USE OF UNITED STATES DEPARTMENT OF COMMERCE COAST AND GEODETIC SURVEY PUBLICATION NO. 238, AS IDENTIFIED IN SOURCE CODE A ON THE CHARTER CERTIFICATE. ACCORDINGLY, YOU WERE REQUESTED TO REFUND THE OVERPAYMENT OF $319.79 THUS FOUND.

IN THE PROTEST TO THE AUDIT ACTION, YOU ALLEGE THAT SOURCE CODE A MILEAGES WOULD GENERALLY BE USED FOR COMPUTING AIRLINE DISTANCES TO BE FLOWN BY PRESSURIZED CABIN AIRCRAFT FLYING DIRECTLY BETWEEN CITIES OF ORIGIN AND DESTINATION AT EXTREMELY HIGH ALTITUDES, BUT THAT THE DC-3 TYPE AIRCRAFT USED ON THIS FLIGHT IS NOT PRESSURIZED AND MUST, AS PROVIDED IN CIVIL AERONAUTIC AUTHORITY REGULATIONS, FOR SAFETY REASONS, FLY ALONG THE AIRWAY ROUTES IN ACCORDANCE WITH THE AIRWAYS DISTANCE CHARTS AS ORIGINALLY BID UNDER CODE B. YOU FURTHER ALLEGE THAT---

"* * * WHEN THE MUTUAL OFFER AND ACCEPTANCE WAS CONSUMMATED, THE VALID CONTRACT EVIDENCED BY THE CHARTER CERTIFICATE WAS ENTERED INTO AND SHOULD NOT NOW BE SUBJECT TO CHANGE OF THE ORIGINAL TERMS AGREED UPON. * * *"

YOU URGE, IN SUPPORT OF THIS POSITION, THAT, HAD YOU KNOWN THAT A CHANGE IN THE MILEAGE COMPUTATION IN ORDER TO DECREASE THE BIDDING PRICE WAS CONTEMPLATED, THE OFFER TO PERFORM THIS PARTICULAR COMMERCIAL AIR MOVEMENT WOULD HAVE BEEN WITHDRAWN OR DECLINED. YOUR PROTEST DOES NOT REFER TO ANY SPECIFIC REGULATION OF THE CIVIL AERONAUTIC AUTHORITY WHICH REQUIRES THAT FLIGHTS BE MADE WITH DC-3 TYPE AIRCRAFT ALONG ANY SPECIFIED ROUTES, AND NO SUCH RESTRICTION HAS OTHERWISE BEEN CALLED TO OUR ATTENTION. BUT, IN ANY EVENT, ANY RESTRICTION OF THE KIND MENTIONED WOULD SEEM TO BE FOR CONSIDERATION AS AN OPERATIONAL MATTER, AND NOT NECESSARILY RELATED TO THE PROBLEM OF DETERMINING DISTANCES FOR COMPUTING CHARGES FOR CHARTER MOVEMENTS.

THE RULE FOR COMPUTING DISTANCES, AS PUBLISHED IN AGENT JOHN J. KLAK'S MILITARY TRAFFIC TARIFF NO. 1, C.A.B. NO. 3, READS AS FOLLOWS:

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

THE COAST AND GEODETIC SURVEY HAS ISSUED A NUMBER OF CHARTS AND PUBLICATIONS DESIGNED FOR USE IN COMPUTING AIRLINE DISTANCES. FOREMOST AMONG SUCH DOCUMENTS IS PUBLICATION NO. 238, MORE FULLY DESCRIBED AS "U.S. DEPARTMENT OF COMMERCE COAST AND GEODETIC SURVEY AIR-LINE DISTANCES BETWEEN CITIES IN THE UNITED STATES.' OTHER SUCH CHARTS INCLUDE THE AIRLINE DISTANCE MAP NO. 3064, THE SERIES OF SO CALLED "DF" CHARTS, THE 87 SECTIONAL CHARTS APPARENTLY INTENDED PRIMARILY FOR PILOTING (VISUAL FLYING OR CONTACT FLYING), AND THE CIVIL AIRWAYS AND MILEAGE CHART, LOW FREQUENCY (COLORED) AIRWAYS SYSTEM, DESIGNED FOR INSTRUMENT FLYING. ANY OF THESE SEVERAL SOURCES COULD CONCEIVABLY BE INCLUDED IN THE TERM "CURRENT UNITED STATES COAST AND GEODETIC SURVEY HARTS" USED IN THE TARIFF RULE.

THAT TARIFF RULE, CONTAINED IN AGENT KLAK'S MILITARY TRAFFIC TARIFF NO. 1, WAS MODIFIED IN 4TH REVISED PAGE 10, EFFECTIVE MARCH 27, 1952, A FEW MONTHS AFTER THIS SERVICE, SO AS TO MAKE MORE DEFINITE WHAT WAS PREVIOUSLY SUGGESTED BY THE LANGUAGE THEN USED. THUS, THE PUBLICATION WAS DESCRIBED AS THE "CURRENT (C) U.S. DEPARTMENT OF COMMERCE COAST AND GEODETIC SURVEY AIR-LINE DISTANCES BETWEEN CITIES IN THE UNITED STATES.' THE SAME DESCRIPTION IS ALSO CONTAINED IN LATER REVISIONS OF PAGE 10. THAT DESCRIPTION CONFORMS CLOSELY TO THE TITLE OF 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.' IF IT BE CONCLUDED THAT PUBLICATION NO. 238 IS NOT SUFFICIENTLY IDENTIFIED, THE TARIFF RULE IN QUESTION IS VAGUE AND INDEFINITE, IN VIOLATION OF THE RULES OF THE CIVIL AERONAUTICS BOARD CONCERNING THE PREPARATION OF TARIFFS OF AIR CARRIERS. SEE, IN THIS CONNECTION, SECTION 221, TITLE 14, CODE OF FEDERAL REGULATIONS, PARTICULARLY SECTION 221.38 (A) (1).

IT IS WELL SETTLED THAT TARIFFS MUST BE SPECIFIC IN THEIR REQUIREMENTS. EASTERN A.L. REROUTING RULE, 11 C.A.B. 278, 281, AND INVESTIGATION--- ACCUMULATION, ASSEMBLY, AND DISTRIBUTION RULES, 12 C.A.B. 337, 343. AND 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 CARRIER 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 203.

IT IS NOTED THAT THE CHARTER CERTIFICATE ITSELF FURNISHES AN ANSWER TO THE PROBLEM AS TO HOW AIRLINE DISTANCES SHOULD BE DETERMINED. UNDER THE SECTION HEADED "GENERAL PROVISIONS," THE CHARTER CERTIFICATE SHOWS (1) THE LETTER CODES TO BE USED, (2) THE DESCRIPTION OF THE SOURCES REFERRED TO BY THE LETTER CODES, AND (3) WHEN SUCH SOURCES ARE TO BE USED IN COMPUTING AIRLINE DISTANCES. CODE LETTER A, LISTED FIRST, IS USED TO IDENTIFY "DEPARTMENT OF COMMERCE PUBLICATION 238" AND IS TO BE USED "GENERALLY.' CODE LETTER B, SECOND IN THE LISTING, DESIGNATES "AIRWAYS DISTANCE CHARTS" AND IS TO BE USED AS A "FIRST ALTERNATE" TO THE CODE A SOURCE OF MILEAGES. CODE LETTER C, THIRD IN THE LISTING, IDENTIFIES "CAB MILEAGE BOOK NO. 1 AND/OR 2" AND IS TO BE USED AS "SECOND ALTERNATE OR AS PUBLISHED TARIFFS REQUIRE.' CODE D, FOURTH IN THE LISTING, IS USED TO DESIGNATE "OTHER" SOURCES OF MILEAGE AND IS TO BE USED AS "THIRD ALTERNATE.' IT THUS SEEMS CLEAR THAT THE CARRIERS, BY ADOPTING THIS FORM OF CHARTER CERTIFICATE TO BE USED TO SHOW THE EXTENT OR DETAILS OF THE CHARTER SERVICES PERFORMED, AGREED TO USE CODE A, U.S. DEPARTMENT OF COMMERCE COAST AND GEODETIC SURVEY SPECIAL PUBLICATION NO. 238, AS THE PRIMARY SOURCE FOR THE DETERMINATION OF AIRLINE DISTANCES BETWEEN POINTS OF ORIGIN AND DESTINATION OF BOTH LIVE AND FERRY MILEAGE INVOLVED IN ANY PARTICULAR COMMERCIAL AIR MOVEMENT.

OUR AUDIT ACTION WAS CONSISTENT WITH THE FOREGOING VIEWS AND WE WOULD NOT BE JUSTIFIED IN MODIFYING IT ON THIS RECORD.