B-140665, JAN. 25, 1960

B-140665: Jan 25, 1960

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TO THE CENTRAL RAILROAD COMPANY OF NEW JERSEY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1. YOUR CLAIM FOR THE PAYMENT OF THE ADDITIONAL FREIGHT CHARGES ON THIS SHIPMENT APPEARS TO BE PREDICATED UPON AN ASSERTED INAPPLICABILITY OF PARAGRAPH (RR) WHICH WAS ADDED TO ITEM 7 OF ASSOCIATION OF AMERICAN RAILROADS TRANSIT QUOTATION 16-F BY AMENDMENT NO. 58. WHEREBY GAIRD IS CONSIDERED AS LOCATED AT BOYLES. IT IS YOUR POSITION THAT THIS ITEM HAS APPLICATION ONLY ON SHIPMENTS WHICH MOVED FROM THE INITIAL POINT OF ORIGIN AFTER THE EFFECTIVE DATE OF AUGUST 25. DOES NOT HAVE APPLICATION ON THIS SHIPMENT WHICH WAS IN STORAGE AT GAIRD ON SUCH EFFECTIVE DATE. THERE IS NOTHING IN THE WORDING USED.

B-140665, JAN. 25, 1960

TO THE CENTRAL RAILROAD COMPANY OF NEW JERSEY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1959, FILE 232206 S, REQUESTING REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR $40.07 IN ADDITIONAL CHARGES ON A SHIPMENT OF ALUMINUM TANKS MOVING FROM TRANSIT STORAGE AT GAIRD, ALABAMA, TO PORT NEWARK, NEW JERSEY, UNDER BILL OF LADING AF-T-13120, DATED OCTOBER 2, 1952.

YOUR CLAIM FOR THE PAYMENT OF THE ADDITIONAL FREIGHT CHARGES ON THIS SHIPMENT APPEARS TO BE PREDICATED UPON AN ASSERTED INAPPLICABILITY OF PARAGRAPH (RR) WHICH WAS ADDED TO ITEM 7 OF ASSOCIATION OF AMERICAN RAILROADS TRANSIT QUOTATION 16-F BY AMENDMENT NO. 58, DATED SEPTEMBER 2, 1952, WHEREBY GAIRD IS CONSIDERED AS LOCATED AT BOYLES, ALABAMA ON CERTAIN TRAFFIC "* * * WHEN THE OUTBOUND TRAFFIC MOVES VIA L AND N RR, * * *.' APPARENTLY, IT IS YOUR POSITION THAT THIS ITEM HAS APPLICATION ONLY ON SHIPMENTS WHICH MOVED FROM THE INITIAL POINT OF ORIGIN AFTER THE EFFECTIVE DATE OF AUGUST 25, 1952, AND DOES NOT HAVE APPLICATION ON THIS SHIPMENT WHICH WAS IN STORAGE AT GAIRD ON SUCH EFFECTIVE DATE. THERE IS NOTHING IN THE WORDING USED, HOWEVER, WHICH INDICATES ANY INTENTION TO RESTRICT THE APPLICATION OF THE ITEM TO SHIPMENTS MOVING FROM POINT OR ORIGIN, OR TO PROHIBIT APPLICATION OF THE ITEM ON SHIPMENTS SHIPPED FROM IN-TRANSIT- STORAGE, AFTER THE EFFECTIVE DATE NAMED.

IN THIS CONNECTION, IT IS NOTED THAT SIMILAR ADDITIONS MADE TO ITEM 7 BY AMENDMENTS 55, 42, 39, 28, ETC., SPECIFICALLY RESTRICT APPLICATION TO SHIPMENTS WHICH MOVE "FROM ORIGINAL POINT OR PORT OF ORIGIN" ON OR SUBSEQUENT TO THE EFFECTIVE DATE NAMED IN THE AMENDMENT. THE LANGUAGE OF THE ADDITIONS TO ITEM 7 BY AMENDMENT 58, HOWEVER, DOES NOT RESTRICT APPLICATION OF THE ADDED PROVISIONS TO SHIPMENTS FROM THE ORIGINAL POINT OR PORT OF ORIGIN AFTER THE EFFECTIVE DATE AND, IF THAT WERE THE INTENT OF AMENDMENT 58, IT APPEARS SUCH RESTRICTIVE LANGUAGE WOULD HAVE BEEN USED IN THE AMENDMENT. IT WOULD HAVE BEEN A SIMPLE MATTER FOR THE AUTHORS OF AMENDMENT 58 TO HAVE INSERTED LANGUAGE MAKING IT CLEAR THAT THE AMENDMENT WAS ONLY FOR APPLICATION TO TRAFFIC MOVING FROM THE ORIGINAL POINT OF ORIGIN IF THEY SO INTENDED, THE PATTERN ALREADY HAVING BEEN ESTABLISHED IN THE PREVIOUS AMENDMENTS. THEY DID NOT DO SO, SO WE MUST ASSUME THEY DID NOT SO INTEND. THE APPARENT PURPOSE OF THE AMENDMENT WAS TO OBTAIN LONGER LINE HAULS FOR THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY VIA THE NAMED GATEWAYS, AND IN THE ABSENCE OF ANY STATEMENT IN THE AMENDMENT TO THE CONTRARY, IT MUST BE ASSUMED THE PROVISIONS WERE INTENDED TO HAVE APPLICATION ON SHIPMENTS THEN IN TRANSIT STORAGE AS WELL AS SHIPMENTS WHICH MOVED FROM THE POINT OF ORIGIN AFTER THE EFFECTIVE DATE. IN ANY CASE, THE LANGUAGE SEEMS CLEARLY TO AUTHORIZE THE CONSIDERATION OF GAIRD AS LOCATED AT BOYLES AS TO BOTH SHIPMENTS FROM TRANSIT STORAGE AND FROM THE POINT OR ORIGIN AFTER THE EFFECTIVE DATE NAMED IN AMENDMENT 58.

IT IS WELL ESTABLISHED IN THE INTERPRETATION OF TARIFFS WRITTEN BY THE CARRIERS, THAT IT IS PRESUMED THEY HAVE USED ALL THE WORDS NECESSARY TO PROTECT THEIR OWN INTERESTS. THEREFORE, IT IS THE RULE, FOLLOWED BY BOTH THE COURTS AND THE INTERSTATE COMMERCE COMMISSION, IN DOUBTFUL CASES, TO ADOPT THAT INTERPRETATION WHICH IS MOST FAVORABLE TO THE SHIPPER. UNITED STATES V. GULF REFINING CO., 268 U.S. 542; INDIANA HARBOR BELT R.R. V. JACOB STERN AND SONS, 37 FED.SUPP. 690, 691. THE SAME RULE SEEMS TO HAVE RELEVANCY IN THE CONSTRUCTION OF OTHER TRANSPORTATION INSTRUMENTS AFFECTING THE APPLICABLE CHARGES WHICH ARE PREPARED BY THE CARRIERS OR THEIR AGENTS SINCE, AS A RULE OF LAW, A DOCUMENT IS CONSTRUED MOST STRONGLY AGAINST THE MAKER. SEE ORDER OF UNITED COMMERCIAL TRAVELERS V. SEVIER, 121 F.2D 650, 654; SOUTHERN RY. CO. V. COCA-COLA BOTTLING CO., 145 F.2D 304, 307, AND W. C. SHEPHERD CO. V. ROYAL INDEMNITY CO., 192 F.2D 710, 714.