B-133526, JUL. 7, 1958

B-133526, JUL. 7, 1958

TO MOVERS CONFERENCE OF AMERICA:

IN YOUR LETTER OF JUNE 17, 1958, YOU REQUEST A STATEMENT OF THE CONCLUSIONS REACHED BY US IN REVIEWING THE AUDIT ACTION TAKEN IN CONNECTION WITH CERTAIN CHARGES ASSESSED BY THE TRI-CITY VAN AND STORAGE CORPORATION FOR THE MOVEMENT OF HOUSEHOLD GOODS. THE NAMED CARRIER IS UNDERSTOOD TO BE A MEMBER OF YOUR ORGANIZATION.

THE QUESTION BASIC TO THAT AND SIMILAR CASES WAS WHETHER OR NOT THE CHARGES FOR A SHIPMENT OF HOUSEHOLD GOODS MOVING UNDER A SECTION 22 TENDER WHICH NAMED A SPECIFIC TARIFF (TO WHICH THE TENDERING CARRIER WAS NOT A PARTY) AS PROVIDING THE RATES AND CHARGES TO BE APPLIED, WITHOUT SPECIFYING THAT THE EFFECTIVE SUPPLEMENTS TO THE DESIGNATED TARIFF MUST BE CONSIDERED IN COMPUTING THE CHARGES, SHOULD BE AUDITED ON THE BASIS OF THE NAMED TARIFF AS ORIGINALLY PUBLISHED, OR ON THE BASIS OF THE TARIFF AS SUPPLEMENTED AT THE TIME OF SHIPMENT. AFTER A THOROUGH EVALUATION OF THE PROBLEM, WE CONCLUDED THAT OUR AUDIT ACTION SHOULD BE TAKEN IN THE LIGHT OF THE CIRCUMSTANCES SURROUNDING THE TENDERS SUBMITTED TO GOVERNMENT TRANSPORTATION OFFICERS, GIVING EFFECT, INSOFAR AS SUPPORTABLE BY THE PROVISIONS OF THE TENDERS AND PERTINENT BILL OF LADING CONTRACTS, AND ABSENT ANY ADMINISTRATIVE OFFICE INFORMATION WARRANTING A DIFFERENT VIEW, TO THE PRINCIPLE THAT THE RATES FOR THE SERVICES FURNISHED SHOULD BE THOSE PROVIDED IN THE NAMED TARIFFS AS OF THE DATE OF THE PERFORMANCE OF THE SERVICE, INCLUDING PERTINENT EFFECTIVE SUPPLEMENTS TO THE DESIGNATED TARIFF OR TARIFFS.

IN APPLYING THIS PRINCIPLE TO THE PARTICULAR TARIFF INVOLVED IN THE TRI- CITY VAN AND STORAGE CORPORATION CASE--- INDEPENDENT MOVERS' AND WAREHOUSEMEN'S ASSOCIATION TARIFF NO. 7, MF-I.C.C. NO. 21--- WE FOUND THAT THERE WERE CONTEMPORANEOUSLY AVAILABLE FOR APPLICATION IN THIS TARIFF UNTIL SEPTEMBER 30, 1954, TWO SETS OF RATES FOR STORAGE-IN TRANSIT AND PICK-UP OR DELIVERY (HANDLING OR HAULING FROM STORAGE) SERVICES. ACCORDINGLY, WE ARE OBLIGED TO USE IN OUR AUDIT OF TRANSACTIONS OF THE KIND INVOLVED THE LOWER SET OF RATES PROVIDED IN THE IDENTIFIED TARIFF, AS SUPPLEMENTED, IN ADHERENCE TO THE WELL ESTABLISHED RULE THAT WHERE TWO RATES ARE AVAILABLE FOR THE SAME SERVICE A SHIPPER IS ENTITLED TO APPLY THE LOWER RATE.

THE FOREGOING STATEMENT IS, OF COURSE, GENERAL IN NATURE, AND IT SHOULD BE NOTED THAT THE DISPOSITION OF EACH CASE ENTAILING THE APPLICATION OF THE GENERAL PRINCIPLE IS DEPENDENT UPON THE PARTICULAR FACTS AND CIRCUMSTANCES APPEARING THEREIN. IT SHOULD BE NOTED, ALSO, THAT CONTROVERSY OVER TERMS IN TENDERS COULD BE MINIMIZED OR ELIMINATED, IF THE INTERESTED CARRIERS STATED AS FULLY AND CLEARLY AS POSSIBLE WHEN TENDERS ARE SUBMITTED PRECISELY WHAT IS INTENDED TO BE PROVIDED. IN THE EVENT, FOR EXAMPLE, IT BE INTENDED THAT EFFECTIVE SUPPLEMENTS TO A CERTAIN TARIFF OR TARIFFS ARE TO BE CONSIDERED IN COMPUTING THE ASSESSABLE CHARGES, IT WOULD CONTRIBUTE TO A BETTER UNDERSTANDING BY ALL CONCERNED, IF THE CARRIER INVOLVED SAID SO SPECIFICALLY IN ITS TENDER.