B-131643, JAN. 23, 1958

B-131643, JAN. 23, 1958

TO BAGGETT TRANSPORTATION COMPANY:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE AUDIT ACTION TAKEN ON PAYMENT VOUCHERS COVERING YOUR BILLS FOR TRANSPORTATION SERVICES ON SHIPMENTS OF AMMUNITION AND EXPLOSIVES FROM CRANE, INDIANA, TO PORTSMOUTH, VIRGINIA, DURING 1951.

OUR REQUESTS FOR THE REFUND OF OVERPAYMENTS COVERING THE SHIPMENTS HERE INVOLVED WERE ISSUED TO YOU ON THE BASIS OF A RATE OF $1.38 PER 100 POUNDS, AS NAMED IN BAGGETT TRANSPORTATION COMPANY U.S. GOVERNMENT QUOTATION NO. 52. WHILE, IN EACH INSTANCE, THE SHIPMENTS WERE TENDERED TO THE CARRIER AT POINT OF ORIGIN ON BILLS OF LADING IN QUANTITIES WELL IN EXCESS OF 50,000 POUNDS, THE TRUCKS ON WHICH THE SHIPMENTS WERE TRANSPORTED WERE, IN EACH INSTANCE, LOADED WITH CONSIDERABLY LESS THAN 50,000 POUNDS. YOU URGE IN YOUR REQUEST FOR REVIEW OF THIS AUDIT ACTION THAT THE RATE OF $1.38 PER 100 POUNDS NAMED IN QUOTATION NO. 52 IS APPLICABLE ON A 50,000 POUND MINIMUM TRUCKLOAD. YOU INDICATE THAT IN VIEW OF THE FACT THAT THE 50,000 POUND TRUCKLOAD MINIMUM WEIGHT IS ASSOCIATED WITH THE $1.38 RATE NAMED IN QUOTATION NO. 52, THE LOWEST APPLICABLE RATE IS $1.44 PER 100 POUNDS, SUBJECT TO A VOLUME MINIMUM WEIGHT OF 50,000 POUNDS, NAMED IN BAGGETT TRANSPORTATION COMPANY, U.S. GOVERNMENT QUOTATION NO. 69. IN OUR DECISION B-110937, DATED SEPTEMBER 17, 1952, RECONSIDERED IN OUR DECISION DATED AUGUST 21, 1953, IT WAS HELD THAT, BY VIRTUE OF THE ALTERNATIVE PROVISIONS OF QUOTATION NO. 69, THE LOWER CHARGES DERIVED THROUGH THE USE OF THE RATES IN QUOTATION NO. 52 WERE APPLICABLE AFTER THE EXPIRATION DATE SPECIFIED IN QUOTATION NO. 52. THIS CONCLUSION WAS JUSTIFIED BECAUSE THE TERMS OF QUOTATION NO. 69 EXTENDED THE AVAILABILITY OF QUOTATION NO. 52 AS A BASIS FOR DETERMINING THE TRANSPORTATION CHARGES TO BE PAID BY THE GOVERNMENT. THE QUESTION NOW PRESENTED FOR DETERMINATION IS WHETHER THE RATE OF $1.38 PER 100 POUNDS NAMED IN QUOTATION NO. 52 IS APPLICABLE TO THE SUBJECT SHIPMENTS, GIVING EFFECT TO THE 50,000 POUND MINIMUM WEIGHT PROVISION AS A VOLUME, RATHER THAN A TRUCKLOAD, REQUIREMENT.

BAGGETT TRANSPORTATION COMPANY U.S. GOVERNMENT QUOTATION NO. 52 PROVIDES RATES ON AMMUNITION AND EXPLOSIVES BETWEEN CRANE, INDIANA, AND THE NORFOLK TIDEWATER AREA OF $1.60 PER 100 POUNDS, TRUCKLOAD MINIMUM WEIGHT 20,000 POUNDS, AND $1.38 PER 100 POUNDS, TRUCKLOAD MINIMUM WEIGHT 50,000 POUNDS. TO ARRIVE AT A PROPER DETERMINATION OF THE EFFECT TO BE GIVEN THE $1.38 IN THIS CONNECTION IT BECOMES NECESSARY, BECAUSE OF THE CIRCUMSTANCES UNDER WHICH THE TYPE OF TENDERS INVOLVED ARE MADE, TO ASCERTAIN THE ACTUAL INTENTION OF THE PARTIES AS TO THE MINIMUM WEIGHT REQUIREMENT OF 50,000 POUNDS. AT THE OUTSET IT SHOULD BE NOTED THAT WHERE DOUBT EXISTS IT IS WELL SETTLED THAT THE INTENTION OF THE PARTIES WILL GOVERN IN CONSTRUCTION OF THE TERMS OF A CONTRACT. HOTPOINT CO. V. UNITED STATES, 127 C.CLS. 402; FARWELL CO. V. UNITED STATES, 126 C.CLS. 317.

IN FURTHERANCE OF OUR EFFORTS TO ASCERTAIN THE INTENTION OF THE PARTIES INVOLVED IN QUOTATION NO. 52, WE MADE A STUDY OF THE VARIOUS BAGGETT TRANSPORTATION COMPANY U.S. GOVERNMENT QUOTATIONS ON FILE IN THE GENERAL ACCOUNTING OFFICE, AND INVARIABLY IN ALL OTHER QUOTATIONS, THE 50,000 POUND REQUIREMENT WAS IDENTIFIED AS A VOLUME MINIMUM WEIGHT. IN ALL OF SUCH INSTANCES 20,000 POUNDS WAS THE HIGHEST WEIGHT NAMED AS A MINIMUM TRUCKLOAD, AND ALL MINIMUM WEIGHTS IN EXCESS OF 20,000 POUNDS WERE DENOMINATED SPECIFICALLY AS VOLUME MINIMUM WEIGHTS. IN FACT, YOUR QUOTATION NO. 85 NAMED A VOLUME MINIMUM WEIGHT OF 20,000 POUNDS, AND QUOTATION NO. 109, AS AMENDED, PROVIDED A TRUCKLOAD MINIMUM WEIGHT OF 20,000 POUNDS, AND A VOLUME MINIMUM WEIGHT OF 30,000 POUNDS. SEE, ALSO, YOUR QUOTATIONS NOS. 42 AND 69. IT IS DIFFICULT TO AVOID THE CONCLUSION THAT, IN THE LIGHT OF THE VARIOUS OTHER QUOTATIONS ISSUED BY THE BAGGETT TRANSPORTATION COMPANY, THE PLACEMENT IN QUOTATION NO. 52, OF THE TERM "50,000 LBS.' UNDER CAPTION "TRUCK LOAD MINIMUM WEIGHT," AND IN THE SAME COLUMN AS "20,000 LBS., " WITHOUT SOME ADDITIONAL QUALIFYING LANGUAGE MAKING CLEAR WHAT WAS INTENDED, WAS AN INADVERTENCY WHICH WAS SUBJECT TO CLARIFICATION IN ACCORDANCE WITH THE INTENT OF THE PARTIES. THE EQUIPMENT AND OTHER LIMITATIONS AND AN ANALYSIS OF THE PROVISIONS OF YOUR OTHER QUOTATIONS REFLECTS AN UNDERSTANDING OF THE PARTIES THAT WHERE THE 50,000 POUND MINIMUM WEIGHT IS SPECIFIED IT IS TO BE APPLIED AS A VOLUME, RATHER THAN A TRUCKLOAD, MINIMUM WEIGHT.

THE LOADING OF 50,000 POUNDS OF AMMUNITION OR EXPLOSIVES OF THE TYPE HERE INVOLVED IN A SINGLE TRUCK OR TRAILER DOES NOT ORDINARILY APPEAR TO BE CAPABLE OF ACCOMPLISHMENT AND, EVEN IF IT WERE POSSIBLE, IT WOULD APPEAR TO BE OBJECTIONABLE FROM THE STANDPOINT OF SAFETY. AN EXAMINATION OF THE LAWS OF THE SEVERAL STATES THROUGH WHICH THIS TRAFFIC MUST PASS, WHEN MOVING BETWEEN CRANE, INDIANA, AND PORTSMOUTH, VIRGINIA, INDICATES THAT 50,000 POUNDS LOADED IN A TRACTOR-TRAILER COMBINATION WOULD VIOLATE THE MAXIMUM LOAD WEIGHT LIMITATIONS. FOR EXAMPLE, THE ANNOTATED CODE OF VIRGINIA (THE MICHIE COMPANY) TITLE 46, SECTION 336, STATES THAT THE GROSS WEIGHT (VEHICLE AND LOAD) OF ANY VEHICLE, OR COMBINATION OF VEHICLES, HAVING FOUR AXLES, EIGHT WHEELS OR MORE, SHALL NOT EXCEED 50,000 POUNDS. ALSO SIGNIFICANT IN THIS CONNECTION IS THE STATEMENT BY THE INTERSTATE COMMERCE COMMISSION THAT A MINIMUM WEIGHT WHICH GREATLY EXCEEDS THE CAPACITY OF THE VEHICLES GENERALLY USED, IS IN EFFECT A VOLUME MINIMUM WEIGHT. SEE WHISKEY FROM CINCINNATI AND KENTUCKY POINTS TO SOUTHERN STATES, 22 M.C.C. 81.

BECAUSE OF THE FACT THAT LOADING A TRUCK WITH THE KIND OF AMMUNITION OR EXPLOSIVES CONCERNED IN THIS CASE IN QUANTITIES OF 50,000 POUNDS OR MORE WOULD ORDINARILY BE IMPRACTICAL AND WOULD CONFLICT WITH SAFETY REQUIREMENTS; THAT SUCH LOADING WOULD BE VIOLATIVE OF STATE MAXIMUM WEIGHT LIMITS; AND IN VIEW OF THE SPECIFICATION OF THE 50,000 POUND VOLUME MINIMUM WEIGHT IN YOUR OTHER QUOTATIONS, THE WEIGHT PRESCRIPTION OF 50,000 POUNDS IN QUOTATION NO. 52 IS CONSIDERED TO HAVE BEEN INTENDED AS BEING ASSOCIATED WITH VOLUME MINIMUM WEIGHT, CONSISTENT WITH THE INTENTION OF THE PARTIES.

IT IS ACCORDINGLY CONCLUDED THAT THE AUDIT ACTION RESULTING IN THE APPLICATION OF THE RATE OF $1.38 PER 100 POUNDS ON VOLUME SHIPMENTS WEIGHING 50,000 POUNDS OR MORE IS CORRECT. THE OUTSTANDING REQUESTS FOR REFUND OF OVERPAYMENTS SHOULD BE SATISFIED BY YOUR COMPANY PROMPTLY; OTHERWISE, WE WILL BE OBLIGED TO TAKE STEPS TO EFFECT COLLECTION BY OTHER APPROPRIATE MEANS.