B-137597, AUGUST 3, 1959, 39 COMP. GEN. 67

B-137597, AUGUST 3, 1959, 39 COMP. GEN. 67

TRANSPORTATION - TARIFF CONSTRUCTION - RULES AND REGULATIONS - ROUTING INSTRUCTIONS UNDER A BASIC FREIGHT TARIFF REFERRING TO THE USE OF LOWER MAXIMUM RATES IN A TRANSCONTINENTAL TARIFF WHICH SPECIFIES THAT BEFORE THE RATES MAY BE APPLIED THE "RULES AND REGULATIONS" IN THE TARIFF MUST BE OBSERVED, SUCH RULES AND REGULATIONS ARE CONSTRUED TO BE SEPARATE AND DISTINCT FROM THE ROUTING INSTRUCTIONS AND NOT TO BE REGARDED AS INCLUDING ROUTING INSTRUCTIONS; THEREFORE, THE USE OF THE ROUTING PROVISIONS IN THE BASIC TARIFF AND THE LOWER MAXIMUM TRANSCONTINENTAL RATES WERE PROPERLY APPLIED IN THE COMPUTATION OF FREIGHT CHARGES FOR A GOVERNMENT SHIPMENT.

TO THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY, AUGUST 3, 1959:

REFERENCE IS MADE TO YOUR LETTER WRITTEN UNDER FILE NO. 1-11798, WITH MEMORANDUM ATTACHED, IN WHICH YOU REQUEST A REVIEW OF THE SETTLEMENT OF FEBRUARY 11, 1958 (CLAIM NO. TK 597465), WHICH DISALLOWED YOUR CLAIM ON SUPPLEMENTAL BILL NO. 3548-32A FOR AN ADDITIONAL ALLOWANCE OF $439.70.

YOUR CLAIM INVOLVES AN ARMY SHIPMENT OF 548 BOXES OF AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILES, WEIGHING 63,568 POUNDS, WHICH WAS TRANSPORTED FROM PANHANDLE, NEBRASKA, TO THEODORE, ALABAMA, UNDER GOVERNMENT BILL OF LADING WV-9438944. THE GOODS WERE TENDERED TO THE ORIGIN CARRIER, THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, ON DECEMBER 8, 1951, AND THE GOODS WERE RECEIVED IN THEODORE, ALABAMA, ON DECEMBER 19, 1951. THE ROUTING ON THE BILL OF LADING WAS ,CB AND Q--- NC AND STL--- L AND N.'

ON THE DATE OF MOVEMENT, CLASS RATES WHICH APPLIED BETWEEN PANHANDLE, NEBRASKA, AND THEODORE, ALABAMA, VIA THE BILL OF LADING ROUTE, WERE PUBLISHED IN WESTERN TRUNK LINE TARIFF NO. 385, I.C.C. NO. A-3020. ITEM 10-L IN SUPPLEMENT 246 OF TARIFF NO. 385 IS CAPTIONED " APPLICATION OF MAXIMUM RATES" AND LISTS VARIOUS WESTERN STATIONS, INCLUDING PANHANDLE, AND VARIOUS SOUTHERN STATIONS, INCLUDING THEODORE. ITEM 10-L MAKES REFERENCE TO ITEM 11, AND ITEM 11-K, IN SUPPLEMENT 199 TO TARIFF NO. 385, NOTE A, READS, IN PERTINENT PART:

APPLY RATES (CLASS OR COMMODITY) NAMED IN TARIFFS, SPECIFIED IN NOTE B, SHOWN BELOW * * * FROM * * * THE FOLLOWING POINTS, WHEN THE CHARGES ACCRUING UNDER SUCH RATES ARE LOWER THAN THE CHARGES ACCRUING UNDER THE RATES NAMED IN THIS TARIFF ON THE SAME COMMODITY * * *

NOTE B IN ITEM 11-K LISTS A NUMBER OF TARIFFS, ONE OF WHICH IS TRANS CONTINENTAL FREIGHT BUREAU EASTBOUND TARIFF NO. 2-R, I.C.C. NO. 1547. THIS TARIFF IS SHOWN IN NOTE B--- FOR THE PURPOSES OF MAXIMUM RATE APPLICATION--- AS NAMING RATES " FROM LA GRANDE, ORE., OR SPOKANE, WASH.'

NOTE C IN ITEM 11-K PROVIDES AS FOLLOWS:

IN THE APPLICATION OF THE MAXIMUM RATES PROVIDES FOR BY THIS ITEM, THE RULES AND REGULATIONS AS PROVIDED OR REFERRED TO IN THE TARIFFS SPECIFIED IN NOTE B ABOVE, MUST BE FULLY OBSERVED.

THUS, WESTERN TRUNK LINE TARIFF NO. 385 PUBLISHES JOINT THROUGH CLASS RATES FROM PANHANDLE, NEBRASKA, TO THEODORE, ALABAMA, BUT PROVIDES THAT IF THE RATES PUBLISHED IN TRANS-CONTINENTAL TARIFF NO. 2 R PRODUCE A LOWER CHARGE ON THE SAME COMMODITY FROM THE SPECIFIED POINTS TO THE DESTINATION OF THE SHIPMENT, THE LOWER RATES IN TARIFF NO. 2-R WILL APPLY. HOWEVER, NOTE C IN ITEM 11-K OF SUPPLEMENT 199 TO TARIFF NO. 385 PROVIDES THAT IN APPLYING THE MAXIMUM RATE PUBLISHED IN TARIFF NO. 2-R THE "RULES AND REGULATIONS" IN TARIFF NO. 2-R MUST BE OBSERVED. YOU CONTEND THAT THE TERM "RULES AND REGULATIONS" INCLUDES " ROUTING INSTRUCTIONS," WHILE THE CONTENTION OF OUR OFFICE IS TO THE CONTRARY.

THE INDEX ON PAGE 2 OF WESTERN TRUNK LINE TARIFF NO. 385 LISTS " ROUTING INSTRUCTIONS" AND " RULES AND REGULATIONS" AS ENTIRELY SEPARATE AND DISTINCT SUBJECTS, THE FORMER BEING FOUND ON PAGES ,336 TO 344," AND THE LATTER ON PAGES "205 AND 206.' IN A SIMILAR MANNER, TRANS CONTINENTAL TARIFF NO. 2-R LISTS " ROUTING INSTRUCTIONS" ON PAGE 863, AND " RULES, GENERAL," AND " RULES, SPECIAL," AS STARTING AT PAGES 146 AND 148, RESPECTIVELY. IN TARIFF NO. 2-R, CERTAIN " REGULATIONS" ARE SHOWN AS A SUBORDINATE ITEM UNDER THE " RULES.' THIS SEEMS TO BE A STRONG INDICATION THAT THE " RULES AND REGULATIONS" AND THE " ROUTING INSTRUCTIONS" ARE REGARDED AS SEPARATE AND DISTINCT SUBJECTS IN TARIFF PUBLISHING CIRCLES. ALSO FOR CONSIDERATION ARE THE RULES AND REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION, AS PUBLISHED IN THE CODE OF FEDERAL REGULATIONS.

SECTION 141.0 (A) OF CHAPTER I, TITLE 49 OF THE CODE OF FEDERAL REGULATIONS READS:

GENERAL PROVISIONS: DEFINITIONS--- (A) CONFORMATION TO RULES; REISSUE. ALL TARIFFS FILED ON OR AFTER OCTOBER 1, 1928, EXCEPT AS OTHERWISE PROVIDED IN THIS PART OR UNLESS OTHERWISE AUTHORIZED BY SPECIAL PERMISSION OF THE COMMISSION MUST CONFORM TO THE RULES IN THIS PART. * * *

SECTION 141.4 OF CHAPTER I, TITLE 49 OF THE CODE OF FEDERAL REGULATIONS READS IN PERTINENT PART:

CHART

CONTENT OF TARIFFS. TARIFFS SHALL CONTAIN IN THE ORDER NAMED:

(A) TABLE OF CONTENTS. * * *

(B) NAMES OF PARTICIPATING CARRIERS. * * *

(C) INDEX OF COMMODITIES. * * *

(D) INDEX OF STATIONS. * * *

(E) (RESERVED)

(F) LIST OF EXCEPTIONS. * * *

(G) EXPLANATORY STATEMENTS. * * *

(H) RULES GOVERNING THE TARIFFS. (1) RULES AND REGULATIONS WHICH GOVERN THE TARIFF, THE TITLE OF THE SUBJECT OF EACH RULE OR REGULATION TO BE SHOWN IN DISTINCTIVE TYPE. UNDER THIS HEAD ALL OF THE RULES, REGULATIONS, OR CONDITIONS WHICH IN ANY WAY AFFECT THE RATES NAMED IN THE TARIFF SHALL BE ENTERED, EXCEPT AS OTHERWISE PROVIDED IN THIS PART. A SPECIAL RULE AFFECTING A PARTICULAR ITEM OR RATE MUST BE SPECIFICALLY REFERRED TO IN SUCH ITEM OR IN CONNECTION WITH SUCH RATE.

(I) RATES. * * *

(J) STATE GROUPING. * * *

(K) ROUTING. (1) ROUTING OVER WHICH THE RATES APPLY, STATED IN SUCH MANNER THAT SUCH ROUTES MAY BE DEFINITELY ASCERTAINED.

(L) (RESERVED.)

(M) EXPLANATION OF ABBREVIATIONS AND REFERENCE MARKS. * * *

AN ANALYSIS OF THE ABOVE RULES PROMULGATED BY THE INTERSTATE COMMERCE COMMISSION SHOWS THAT NO PROVISION HAS BEEN MADE TO HAVE THE RULES AND REGULATIONS OF A TARIFF EMBRACE OR INCLUDE THE ROUTING, SINCE THEY ARE SHOWN AS SEPARATE ENTITIES IN SECTION 141.4, ABOVE. ALSO, SECTION 141.0 (A) PROVIDES THAT ALL TARIFFS "MUST" CONFORM TO THE RULES IN THIS PART AND SECTIONS 141.4 (H) (I) AND (K) (L) PROVIDE THAT TARIFFS "SHALL" CONTAIN "RULES AND REGULATIONS" AND "ROUTING.'

ORDINARILY, THE WORDS "SHALL" AND "MUST" ARE CONSIDERED MANDATORY IN NATURE. SEE 80 CORPUS JURIS SECUNDUM 136. IT SEEMS TO FOLLOW, THEREFORE, THAT THE RULES AND REGULATIONS OF A TARIFF MAY NOT BE EMBRACED OR INCLUDED IN THE ROUTING, SINCE THE INTERSTATE COMMERCE COMMISSION RULES PROVIDE THAT THE "RULES AND REGULATIONS" MUST BE SHOWN IN DISTINCTIVE TYPE AND THAT THE "ROUTING" OVER WHICH RATES APPLY MUST BE STATED IN SUCH MANNER THAT SUCH ROUTE MAY BE DEFINITELY ASCERTAINED.

IN THE MEMORANDUM ATTACHED TO YOUR REQUEST FOR REVIEW, YOU URGE THAT THE HOLDING IN THE CASE OF CHARLES ILFELD COMPANY V. SOUTHERN PACIFIC S.S. LINES, 227 I.C.C. 291, SHOULD BE FOLLOWED IN THE PRESENT CASE. THE CHARLES ILFELD CASE INVOLVED A SITUATION IN WHICH A BASIS FOR CLASS AND COMMODITY RATES FROM AND TO POINTS IN SPECIFIED STATES, INCLUDING MASSACHUSETTS AND NEW MEXICO, WAS PROVIDED IN AGENT CURLETT'S TARIFF, I.C.C. NO. A-254. THIS TARIFF PROVIDED THAT RATES FROM BOSTON, MASSACHUSETTS, TO LAS VEGAS, NEW MEXICO, WERE TO BE CONSTRUCTED ON THE BASIS OF A COMBINATION OF RATES THROUGH CERTAIN NAMED JUNCTIONS, SUBJECT TO THE RATES TO DEMING, NEW MEXICO, AS MAXIMUM. AGENT CURLETT'S TARIFF I.C.C. NO. A-254 ALSO PROVIDED THAT IN APPLYING THE MAXIMUM RATES THE "RULES AND REGULATIONS" IN THE TARIFFS PUBLISHING THE MAXIMUM RATES MUST BE OBSERVED, AND PAGE 103 OF THE SAME TARIFF, AS AMENDED, UNDER THE HEADING " ROUTING ( SEE NOTE)," CONTAINED CERTAIN ROUTING INSTRUCTIONS AS TO WHICH THE COMMISSION SAID (AT PAGE 294 OF THE CITED REPORT): "THESE ROUTING PROVISIONS REQUIRED THAT THE ROUTING RESTRICTIONS PROVIDED IN CONNECTION WITH THE MAXIMUM RATES TO DEMING MUST BE OBSERVED TO POINTS SUBJECT TO THE DEMING RATES AS MAXIMA, SUCH AS LAS VEGAS * * *.' THUS, THE COMMISSION HELD THAT THE DEMING RATE, WHEN APPLIED AS MAXIMUM, WAS SUBJECT TO THE ROUTING APPLICABLE THERETO SHOWN IN THE TARIFF PUBLISHING THE RATE TO DEMING, BUT THE OBSERVANCE OF THIS ROUTING WAS REQUIRED BECAUSE OF A SPECIFIC PROVISION TO THAT EFFECT PUBLISHED UNDER THE HEADING OF , ROUTING" IN AGENT CURLETT'S TARIFF I.C.C. NO. A-254, AND NOT BECAUSE ROUTING INSTRUCTIONS WERE COVERED BY THE TERM "RULES AND REGULATIONS.' OTHER WORDS, THE ROUTING SHOWN IN CONNECTION WITH THE DEMING RATE WAS OBSERVED BECAUSE THE TARIFF WHICH AUTHORIZED THE PROTECTION OF THE DEMING RATE AS MAXIMUM SO PROVIDED UNDER THE HEADING OF " ROUTING," AND BY REFERRING SPECIFICALLY TO "ROUTING RESTRICTIONS," AS SUCH RATHER THAN BY CONSIDERING ROUTING OR ROUTING RESTRICTIONS AS BEING COVERED BY THE TERM "RULES AND REGULATIONS.' IN THIS SITUATION, THE CHARLES ILFELD CASE APPEARS TO SUPPORT THE GOVERNMENT'S CONTENTION IN THE PRESENT CASE, BECAUSE WESTERN TRUNK LINE TARIFF NO. 385 CONTAINS NO SUCH REFERENCE AS THAT REFERRED TO BY THE COMMISSION AT PAGE 294 OF THE REPORT OF THE CITED CASE.

YOUR MEMORANDUM ALSO REFERS TO THE CASE OF FIELD BROS. V. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, 234 I.C.C. 799, WHICH YOU SEEK TO DISTINGUISH. IN THAT CASE, AGENT PEEL'S TARIFF I.C.C. NO. 2606 PUBLISHED CLASS AND COMMODITY RATES FROM CHICAGO, ILLINOIS, TO ROARING SPRINGS, TEXAS, AND PROVIDED THAT THE CHARGES SHOULD NOT EXCEED THOSE APPLICABLE ON A LIKE SHIPMENT "UNDER THE PROVISIONS (INCLUDING THE " EXCEPTIONS TO GENERAL APPLICATION OF TARIFF)" OF TRANSCONTINENTAL FREIGHT BUREAU TARIFFS * * * FROM THE SAME POINTS OF ORIGIN TO DEMING, N. MEX.' NO " EXCEPTIONS TO GENERAL APPLICATION OF TARIFF" WERE FOUND IN THE TARIFF PUBLISHING THE RATE TO DEMING WHICH WERE PERTINENT IN CONNECTION WITH THE MOVEMENT THERE UNDER CONSIDERATION, SO THE COMMISSION HELD THAT THE DEMING RATE APPLIED. THE COMMISSION SAID THAT THE REFERENCE IN THE TARIFF PUBLISHING THE RATES FROM CHICAGO TO ROARING SPRINGS PROVIDED,"IN EFFECT, FOR A BASING RATE; AND FOR CONVENIENCE THE AMOUNT OF THE DEMING RATE IS STATED TO BE THE AMOUNT OF THE BASING RATE. THUS IT DOES NOT PARTAKE IN THE NATURE OF AN INTERMEDIATE RULE IN THAT ITS APPLICATION DOES NOT DEPEND ON THE ROUTING TO THE KEY POINT. RESTRICTIONS ON THE RATE TO DEMING DO NOT MODIFY THE APPLICATION OF THE BASING RATE TO ROARING SPRINGS, TO WHICH THE DEMING RATE APPLIES AS MAXIMUM.'

BOTH THE CHARLES ILFELD CASE AND THE FIELD BROS. CASE SHOW THAT THE CONTENTS OF THE TARIFF PUBLISHING THE RATE TO DEMING IS IMPORTED INTO THE TARIFF MAKING REFERENCE THERETO ONLY TO THE EXTENT TO WHICH IT IS REFERRED TO SPECIFICALLY, AND IF ROUTING GOVERNING THE RATE TO DEMING IS INTENDED TO BE SO IMPORTED IT MUST BE REFERRED TO AS SUCH, AND NOT AS A PART OF THE TARIFF'S RULES AND REGULATIONS.

IN CONNECTION WITH THE TARIFFS INVOLVED IN THE PRESENT CASE, IT IS NOTED THAT IMPERIAL, NEBRASKA ( NO. 5945), KEARNEY, NEBRASKA ( NO. 5800), AND HUNTLEY, NEBRASKA ( NO. 7455), ARE STATIONS ON THE CHICAGO, BURLINGTON AND QUINCY RAILROAD WHICH APPEAR TO BE AT THE END OF A BRANCH OR SPUR TRACK. ALL OF THESE STATIONS ARE SHOWN IN ITEM 10-L OF WESTERN TRUNK LINE TARIFF NO. 385 AS BEING SUBJECT TO THE MAXIMUM RATE APPLICATION, AND ITEM 11-K OF THE TARIFF SHOWS THE BASIS FOR DETERMINING THE MAXIMUM RATES TO AND FROM THESE POINTS. HOWEVER, WHILE MAXIMUM RATES ARE PROVIDED FOR APPLICATION TO AND FROM THESE STATIONS ON "DEAD-END" SPURS OR BRANCH LINES, SUCH MAXIMUM RATES APPARENTLY WOULD BE INAPPLICABLE IN ALL CIRCUMSTANCES IF THE MAXIMUM RATES WERE SUBJECT TO THE ROUTING PROVIDED THEREFOR IN TRANSCONTINENTAL TARIFF NO. 2-R, SINCE THAT ROUTING, PRESUMABLY, WOULD NOT PROVIDE SPECIFICALLY FOR THE MOVEMENT TO THE END OF THE SPUR TRACK OR BRANCH LINE AND THE SUCCEEDING BACKHAUL NECESSARY TO PLACE THE SHIPMENT AGAIN ON THE DIRECT ROUTE. IN THIS CONNECTION, IT IS NOTED THAT A THROUGH RATE DOES NOT APPLY OVER A ROUTE INVOLVING A BACKHAUL, IN THE ABSENCE OF SPECIFIC AUTHORITY FOR SUCH APPLICATION. PORT HURON ELEVATOR, INC. V. PORT HURON AND DETROIT RAILROAD CO., 280 I.C.C. 362; PEPPARD SEED CO. V. LOUISVILLE AND NASHVILLE R.R. CO., 243 I.C.C. 111, 113; J. G. ROGERS V. NEW YORK CENTRAL R.R. CO., 284 I.C.C. 118. THE FOREGOING SEEMS TO CONSTITUTE ANOTHER REASON FOR BELIEVING THAT THE MAXIMUM RATE, WHEN APPLIED UNDER THE TERMS OF TARIFF NO. 385, WAS NOT INTENDED TO BE GOVERNED BY THE ROUTING IN TARIFF NO. 2-R; OTHERWISE, THE CARRIERS APPEAR TO HAVE PERFORMED A VAIN ACT IN PUBLISHING THE MAXIMUM RATE PROVISIONS FOR APPLICATION FROM AND TO MANY OF THE POINTS NAMED IN TARIFF NO. 385.

IN VIEW OF WHAT HAS BEEN SAID ABOVE, WE CONCLUDE THAT THE "ROUTING INSTRUCTIONS" IN TRANSCONTINENTAL FREIGHT TARIFF NO. 2-R, I.C.C. NO. 1547, ARE A SEPARATE AND DISTINCT ENTITY, AND ARE NOT A PART OF THE "RULES AND REGULATIONS" OF THAT TARIFF WHICH ARE REFERRED TO IN NOTE C OF ITEM 11-K IN WESTERN TRUNK LINE TARIFF NO. 385, I.C.C. NO. A-3020.

OUR SETTLEMENT OF FEBRUARY 11, 1958, CLAIM NO. TK-597465, IS ON A BASIS CONSISTENT WITH THE CONCLUSION STATED ABOVE AND, ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.