B-132675, SEP. 26, 1957

B-132675: Sep 26, 1957

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MANAGER: REFERENCE IS MADE TO YOUR REQUEST. ON WHICH YOU CLAIMED AND WERE PAID CHARGES FOR TRANSPORTING A MIXED SHIPMENT OF GOVERNMENT PROPERTY FROM THE NAVAL AIR STATION. THIS SHIPMENT WAS DESCRIBED ON THE BILL OF LADING AS CONSISTING OF FOUR BOXES OF . FOR THE TRANSPORTATION OF THIS SHIPMENT YOU CLAIMED AND WERE PAID $311.54. ON THE BASIS OF THIS COMPUTATION YOU WERE REQUESTED TO REFUND AN OVERPAYMENT OF $106.22. THERE CAN BE NO DOUBT THAT THIS WAS A "MIXED SHIPMENT. THIS ITEM IS. AS FOLLOWS: "/B) WHEN TWO OR MORE COMMODITIES ARE INCLUDED IN THE SAME SHIPMENT AND SEPARATE WEIGHTS THEREOF ARE FURNISHED OR OBTAINED. CHARGES WILL BE COMPUTED AT THE SEPARATE RATES IN THIS QUOTATION APPLICABLE TO SUCH COMMODITIES IN STRAIGHT SHIPMENTS OF THE COMBINED WEIGHT OF THE MIXED SHIPMENT.

B-132675, SEP. 26, 1957

TO MR. ROBERT P. RAPP, MANAGER:

REFERENCE IS MADE TO YOUR REQUEST, UNDER FILE H-840/53, FOR REVIEW OF OUR AUDIT ACTION IN CONNECTION WITH YOUR BILL N-840, ON WHICH YOU CLAIMED AND WERE PAID CHARGES FOR TRANSPORTING A MIXED SHIPMENT OF GOVERNMENT PROPERTY FROM THE NAVAL AIR STATION, ALAMEDA, CALIFORNIA, TO THE NAVAL AIR STATION, LOS ALAMITOS, CALIFORNIA, UNDER BILL OF LADING NO. N-22233547, DATED SEPTEMBER 25, 1953. THIS SHIPMENT WAS DESCRIBED ON THE BILL OF LADING AS CONSISTING OF FOUR BOXES OF ,AIRPLANE PARTS. NOIBN METAL CFC 1305," WEIGHING 214 POUNDS, 1223 POUNDS, 1223 POUNDS, RESPECTIVELY; ONE BOX AND ONE CRATE OF "RADAR HOUSING CFC 1968; I/S) NOIBN. SU," WEIGHING 1920 POUNDS AND 690 POUNDS, RESPECTIVELY; ONE BOX OF "NON FLAMMABLE GAS FIRE EXTINGUISHERS, CHEMICAL-HAND, OTHER THAN WHEELED CFC 17605," WEIGHING 88 POUNDS; ONE BARREL OF "OXIDIZING MATERIAL CHEMICALS, SODIUM NITRATE CFC 11590," WEIGHING 520 POUNDS; AND ONE BOX OF "MACHINERY PARTS, NOIBN. STEEL CFC 31910," WEIGHING 76 POUNDS.

FOR THE TRANSPORTATION OF THIS SHIPMENT YOU CLAIMED AND WERE PAID $311.54, COMPUTED ON THE BASIS OF THE APPLICABLE RATE AT A THEORETICAL WEIGHT OF 15 POUNDS PER CUBIC FOOT OF SPACE OCCUPIED ON THE AIRPLANE PARTS, NOIBN, METAL, THE RADAR HOUSING, IRON OR STEEL, NOIBN, AND THE MACHINERY PARTS, NOIBN, AND THE APPLICABLE RATE AT THE ACTUAL WEIGHT OF THE ARTICLES, ON THE REMAINDER OF THE SHIPMENT. IN THE AUDIT OF THIS PAYMENT OUR OFFICE RECOMPUTED THE CHARGE FOR THIS TRANSPORTATION ON THE BASIS OF THE RATES AND THEORETICAL WEIGHTS USED BY YOU. HOWEVER, ON THE BASIS OF THIS COMPUTATION YOU WERE REQUESTED TO REFUND AN OVERPAYMENT OF $106.22. IN YOUR REQUEST FOR REVIEW OF THAT AUDIT YOU URGE THAT THE PROVISIONS OF ITEM 95 SHOULD BE APPLIED TO EACH ARTICLE IN A SHIPMENT AND NOT TO THE ENTIRE SHIPMENT.

THERE CAN BE NO DOUBT THAT THIS WAS A "MIXED SHIPMENT," AS DESCRIBED IN ITEM 110 OF U.S. GOVERNMENT QUOTATION NO. 3A. THIS ITEM IS, IN PERTINENT PART, AS FOLLOWS:

"/B) WHEN TWO OR MORE COMMODITIES ARE INCLUDED IN THE SAME SHIPMENT AND SEPARATE WEIGHTS THEREOF ARE FURNISHED OR OBTAINED, CHARGES WILL BE COMPUTED AT THE SEPARATE RATES IN THIS QUOTATION APPLICABLE TO SUCH COMMODITIES IN STRAIGHT SHIPMENTS OF THE COMBINED WEIGHT OF THE MIXED SHIPMENT. THE MINIMUM WEIGHT SHALL BE THE HIGHEST PROVIDED FOR ANY OF THE RATES USED IN COMPUTING THE CHARGES. * * *.'

ITEM 95,"LIGHT AND BULKY ARTICLES," PROVIDES THAT:

"/A) ON LIGHT AND BULKY SHIPMENTS WEIGHING LESS THAN 15 POUNDS PER CUBIC FOOT OF SPACE OCCUPIED, CHARGES WILL BE ASSESSED BY APPLYING THE RATE APPLICABLE ON THE BASIS OF 15 POUNDS FOR EACH CUBIC FOOT OF SPACE OCCUPIED.'

THE "SHIPMENT" DESCRIBED IN ITEMS 95 AND 110 (B) IS DEFINED IN ITEM 55 OF THIS "QUOTATION" AS ,A QUANTITY OF FREIGHT TENDERED BY ONE SHIPPER ON ONE SHIPPING DOCUMENT AT ONE POINT OF ORIGIN AT ONE TIME FOR ONE CONSIGNEE AT ONE DESTINATION.'

IT SEEMS CLEAR THAT THE ARTICLES INVOLVED IN THIS CASE CONSTITUTED A SHIPMENT THAT WAS BOTH A ,LIGHT AND BULKY" SHIPMENT AND A "MIXED" SHIPMENT. THUS, THE LIGHT AND BULKY PORTION OF THE SHIPMENT REQUIRED THAT CONSIDERATION BE GIVEN THE PROVISIONS OF ITEM NO. 95 OF THE QUOTATION, AND THE FACT THAT THE SHIPMENT WAS A MIXED SHIPMENT BROUGHT INTO PLAY THE PROVISIONS OF ITEM NO. 110, PARAGRAPH (B) THEREOF BEING APPLICABLE IN THIS CASE BECAUSE SEPARATE WEIGHTS OF THE ARTICLES HAD BEEN FURNISHED.

THERE IS NO DISPUTE AS TO THE WEIGHT OR RATE APPLICABLE TO THE FIRE EXTINGUISHERS, WEIGHING 88 POUNDS AND MEASURING 4 CUBIC FEET, OR TO THE SODIUM NITRATE, WEIGHING 520 POUNDS AND MEASURING 10 CUBIC FEET, SINCE THESE ARE NOT LIGHT AND BULKY ARTICLES, AND THE THIRD-CLASS RATE OF 85 CENTS PER 100 POUNDS HAS BEEN APPLIED BY BOTH THE CARRIER AND OUR OFFICE. THE ACTUAL WEIGHT AND APPLICABLE RATE HAVE BEEN APPLIED ON THE AIRPLANE PARTS AND RADAR HOUSING IN OUR RECOMPUTATION OF THE CHARGES. ALSO, THE CLASS-A RATE HAS BEEN APPLIED TO THE MACHINERY PARTS, NOIBN, AND CHARGES ON THE DEFICIT WEIGHT--- 17,946 POUNDS NECESSARY TO BRING THE WEIGHT OF THE ENTIRE SHIPMENT TO THE 24,000-POUND MINIMUM APPLYING IN CONNECTION WITH THE CLASS-A RATE APPLICABLE ON THE MACHINERY PARTS, NOIBN--- HAVE BEEN COMPUTED AT THE CLASS-A RATE.

THE USE OF THE RATES WHICH WOULD BE APPLICABLE ON THE INDIVIDUAL COMMODITIES IF IN STRAIGHT SHIPMENTS APPEARS TO BE CONSISTENT WITH THE PROVISIONS OF ITEM NO. 110/B) OF THE CITED "U.S. GOVERNMENT QUOTATION NO. 3A.' THE TERM "SHIPMENT," AS DEFINED IN ITEM NO. 55 OF THE QUOTATION, APPEARS TO TREAT THE ENTIRE SHIPMENT, (CONSIGNMENT) AS A UNIT. THEREFORE, ITEM NO. 95 APPARENTLY REFERS TO SHIPMENTS IN THE SENSE OF "UNITS, OR COMPLETE CONSIGNMENTS," AND REQUIRES, AT LEAST IMPLIEDLY, THAT THE ENTIRE SHIPMENT (UNIT OR CONSIGNMENT) BE CHARGED ON THE BASIS OF 15 POUNDS FOR EACH CUBIC FOOT OF SPACE OCCUPIED. IN THIS INSTANCE, THE MINIMUM WEIGHT OF 24,000 POUNDS, DETERMINED UNDER THE MIXED CARLOAD RULE IN ITEM NO. 110/B), HAS BEEN APPLIED BECAUSE HIGHER THAN THAT OF 22,155 POUNDS (1477 CUBIC FEET AT 15 POUNDS PER CUBIC FOOT), BASED ON THE REQUIREMENT OF ITEM NO. 95.

THE QUOTATION PROVIDES FOR THE APPLICATION ON EACH COMMODITY OF THE RATE APPLICABLE ON STRAIGHT SHIPMENTS OF THAT PARTICULAR COMMODITY; ALSO, THAT THE MINIMUM WEIGHT SHALL BE THE HIGHEST PROVIDED FOR ANY OF THE RATES USED IN COMPUTING THE CHARGES. HOWEVER, THE QUOTATION IS SILENT AS TO THE RATE FOR APPLICATION AGAINST THE PORTION OF THE MINIMUM WEIGHT WHICH IS IN EXCESS OF THE ACTUAL WEIGHT OF THE ENTIRE SHIPMENT. IN A SOMEWHAT DIFFERENT SITUATION, BUT ONE INVOLVING A SIMILAR EXCESS IN WEIGHT, ITEM NO. 10 OF THE QUOTATION PROVIDES FOR THE APPLICATION ON THE DEFICIENCY WEIGHT OF THE RATE APPLICABLE ON THE LOWEST-RATED COMMODITY IN THE SHIPMENT. IT SEEMS REASONABLE TO SUPPOSE THAT THIS BASIS ALSO WAS INTENDED FOR APPLICATION IN SITUATIONS SUCH AS HERE INVOLVED. NEVERTHELESS, WHETHER SUCH WAS THE ACTUAL INTENTION OR NOT SEEMS TO BE IMMATERIAL IN THIS CASE. THE GENERAL RULE FOR CONSTRUING DOCUMENTS IS THAT IN CASE OF AMBIGUITY THE DOCUMENT SHALL BE CONSTRUED MOST STRONGLY AGAINST THE PARTY WHO DREW IT. IN THIS CASE, THE QUOTATION CLEARLY IS AMBIGUOUS AS FAR AS THE QUESTION HERE INVOLVED IS CONCERNED AND, THEREFORE, MUST BE CONSTRUED MOST STRONGLY AGAINST THE CARRIER. W. C. SHEPHERD CO. V. ROYAL INDEMNITY CO., 192 F.2D 710, 714; ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA V. SEVIER, 121 F.2D 650, 654; SOUTHERN RY. CO. V. COCA-COLA BOTTLING CO., 145 F.2D 304, 307; BURRUS MILL AND ELEV. CO. V. CHICAGO, R.I. AND P.RY. CO., 131 F.2D 532, 535.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE COMPUTATION OF THE CHARGES ON THIS SHIPMENT BY OUR OFFICE IS SUSTAINED.