B-144773, JUN. 2, 1961

B-144773, JUN. 2, 1961

TO BEKINS INTERNATIONAL DIVISION:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1961, WITH ENCLOSURES, PROTESTING THE DISALLOWANCE OF YOUR CLAIM, PER BILL NO. 5057A, FOR $80.49 IN ADDITION TO THE AMOUNT OF $406.39 PREVIOUSLY CLAIMED ON BILL NO. 5057 AND PAID TO YOU FOR THE TRANSPORTATION OF 902 POUNDS OF HOUSEHOLD GOODS TRANSPORTED FROM IDAR OBERSTEIN, GERMANY, TO MIDWEST CITY, OKLAHOMA.

THE RECORD SHOWS THAT THIS SHIPMENT OF HOUSEHOLD GOODS, RELEASED TO A VALUE NOT EXCEEDING 30 CENTS PER POUND, WAS PICKED UP BY YOUR AGENT AT ORIGIN ON NOVEMBER 27, 1959, FOR FORWARDING TO THE PORT TRANSPORTATION OFFICER, ARMY TERMINAL COMMAND, BROOKLYN, NEW YORK, UNDER BILL OF LADING NO. WY-10275534. THE BILL OF LADING SHOWS THAT THE SHIPPING OFFICER REQUESTED THROUGH CONTAINER DOOR TO DOOR SERVICE "AT RATES PROVIDED IN TARIFF NO. MRT I.C.C. 14.' A NOTICE OF DIVERSION OR RECONSIGNMENT--- TCBAT FORM 286--- DATED JANUARY 14, SHOWS THAT THE SHIPMENT WAS DIVERTED TO MIDWEST CITY, OKLAHOMA, AND THE BILL OF LADING SHOWS JANUARY 20, 1960, AS THE DATE OF DELIVERY AT FINAL DESTINATION.

FOR THIS TRANSPORTATION YOU CLAIMED ORIGINALLY $406.39, COMPUTED ON THE BASIS OF THE ACTUAL WEIGHT OF THE SHIPMENT (902 POUNDS) AT A THROUGH RATE OF $44.50 PER 100 POUNDS FROM ORIGIN TO DESTINATION PROVIDED IN COLUMN A OF SECTION III, PAGE 3, OF HOUSEHOLD GOODS CARRIERS' BUREAU, MILITARY RATE TARIFF I.C.C. NO. 14, PLUS A DIVERSION CHARGE OF $5. THE AMOUNT OF $406.39 SO CLAIMED WAS PAID ON VOUCHER 412920 OF THE FEBRUARY 16, 1960 ACCOUNTS OF GEORGE M. SECKINGER, ARMY DISBURSING OFFICER. THEREAFTER, IN MARCH 1960, YOU CLAIMED $80.49 ADDITIONAL COMPUTED ON THE BASIS OF A RATE OF $38.90 PER 100 POUNDS, FROM GERMANY TO NEW YORK, PLUS A DIVERSION CHARGE OF $5, PLUS A RATE OF $13.10 PER 100 POUNDS ON A MINIMUM OF 1,000 POUNDS, TO MIDWEST CITY, OKLAHOMA. AS JUSTIFICATION FOR THE ADDITIONAL AMOUNT CLAIMED, YOU POINT OUT THAT THE RATE OF $44.50 PER 100 POUNDS TO MIDWEST CITY, OKLAHOMA, DOES NOT INCLUDE A CHARGE FOR THE DIVERSION OF THE SHIPMENT AND, THEREFORE, YOU "HAD TO GO BACK TO MRT NO. 4 FOR DIVERSION CHARGE AND USE A STRAIGHT LINE HAUL.' IN OTHER WORDS, BECAUSE THE SHIPMENT WAS DIVERTED YOU CLAIM CHARGES BASED ON A COMBINATION OF RATES APPLICABLE TO AND FROM NEW YORK, PLUS THE DIVERSION CHARGE. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT SUCH A COMBINATION OF RATES, PLUS A DIVERSION CHARGE, WAS NOT WARRANTED. YOUR REQUEST FOR REVIEW CONCERNS THE ADDITIONAL AMOUNT WHICH WAS DISALLOWED.

MILITARY RATE TARIFF I.C.C. NO. 14, PROVIDES RATES ON SHIPMENTS OF HOUSEHOLD GOODS TRANSPORTED BY COMMON CARRIER "THRU-CONTAINER (DOOR TO DOOR) SERVICE" FROM POINTS IN GERMANY TO POINTS IN THE UNITED STATES. THIS TARIFF PROVIDES A THROUGH RATE OF $44.50 PER 100 POUNDS FROM POINTS IN GERMANY TO MIDWEST CITY, OKLAHOMA, GROUP 9, ON HOUSEHOLD GOODS WHEN RELEASED TO A VALUE NOT EXCEEDING 30 CENTS PER POUND PER ARTICLE. IN THRU -CONTAINER (DOOR TO DOOR) SERVICE. AS TO THE ,APPLICATION OF RATES" THIS TARIFF PROVIDES:

"RATES NAMED IN THIS TARIFF WILL BE COMPUTED ON THE NET WEIGHT OF ARTICLES SHIPPED AND SUBJECT TO A 500 POUND MINIMUM NET WEIGHT, FROM POINT OF ORIGIN TO POINT OF DESTINATION. * * *

"TRANSPORTATION RATES INCLUDE THE FOLLOWING SERVICES:

"3. ALL LAND AND WATER TRANSPORTATION FROM ORIGIN TO DESTINATION; EXPORT AND IMPORT SERVICE CHARGES; AND THE ADDITIONAL TRANSPORTATION CHARGE FOR SHIPMENTS DESTINED TO SUCH APPLICABLE AREAS.

"TRANSPORTATION RATES DO NOT INCLUDE THE FOLLOWING SERVICES: (SEE CHARGES IN MILITARY RATE TARIFF I.C.C. NO. 4, AND AS AMENDED.)

"1. EXTRA PICK-UP OR DELIVERY.

"2. STORAGE-IN-TRANSIT AND WAREHOUSE HANDLING CHARGES, UNLESS GOVERNMENT FACILITIES ARE USED.

"3. WAITING TIME WHEN THE FAULT OF THE SHIPPER.

"4. DIVERSION OF SHIPMENT.'

FURTHER, UNDER THE GENERAL HEADING OF "RULES, REGULATIONS AND ADDITIONAL SERVICES" IT IS PROVIDED THAT:

"NOTE: FOR SERVICE CHARGES THAT ARE NOT INCLUDED IN THE TRANSPORTATION RATES (EXCEPT FOR SERVICE CHARGES PROVIDED HEREIN), REFER TO MILITARY RATE TARIFF I.C.C. NO. 4, AND AS AMENDED, AS PUBLISHED BY HOUSEHOLD GOODS CARRIERS' BUREAU, AGENT.'

THUS, THE TARIFF SHOWN ON THE BILL OF LADING, MILITARY RATE TARIFF I.C.C. NO. 14, PROVIDES A RATE FOR THE SERVICE REQUESTED FROM THE POINT OF ORIGIN TO THE FINAL DESTINATION. THE APPLICATION OF RATES PROVISION IN THE TARIFF SPECIFIES THAT THE THROUGH RATE DOES NOT INCLUDE THE SERVICES CHARGE FOR THE DIVERSION OF THE SHIPMENT BUT NAMES THE TARIFF CONTAINING THE CHARGES FOR SERVICES (INCLUDING DIVERSION) WHICH ARE NOT INCLUDED IN THE TRANSPORTATION RATES. SEE IN THIS CONNECTION THE ABOVE-QUOTED NOTE UNDER THE HEADING OF RULES, REGULATIONS AND ADDITIONAL SERVICES.

THE ORIGINAL BILL OF LADING SHOWS THAT THE SHIPMENT WAS TENDERED TO, AND TRANSPORTED BY, THE BEKINS VAN LINES, CO. WHICH, ON THE DATE OF MOVEMENT, WAS SHOWN AS A PARTICIPATING CARRIER BOTH IN MILITARY RATE TARIFF I.C.C. NO. 14 AND IN MILITARY RATE TARIFF I.C.C. NO. 4. THE RATE FROM THE POINT OF ORIGIN TO THE POINT OF FINAL DESTINATION WAS PUBLISHED IN TARIFF I.C.C. NO. 14, AND THIS TARIFF REFERRED SPECIFICALLY TO TARIFF I.C.C. NO. 4 FOR CHARGES FOR SERVICES WHICH WERE NOT INCLUDED IN THE RATE. TARIFF I.C.C. NO. 14 NAMED PARTICULARLY, AMONG OTHERS, CHARGES FOR ,DIVERSION OF SHIPMENT" AS NOT BEING INCLUDED IN THE RATE AND, IN CONNECTION THEREWITH, CONTAINED THE STATEMENT "SEE CHARGES IN MILITARY RATE TARIFF I.C.C. NO. 4.' THE REFERENCE IN TARIFF I.C.C. NO. 14 TO TARIFF I.C.C. NO. 4 FOR DIVERSION CHARGES INCORPORATED THE DIVERSION CHARGES IN TARIFF I.C.C. NO. 14 JUST AS FULLY AS THOUGH THEY HAD ACTUALLY BEEN PUBLISHED THEREIN. LAMMERT FURNITURE CO. V. SOUTHERN RY.CO., 126 I.C.C. 197, 198; JOHNSON OLSON GRAIN CO. V. CHICAGO AND N.W.RY.CO., 231 I.C.C. 799, 800; PYOTT SAND AND GRAVEL CO. V. ATCHISON, T. AND S.F.RY.CO., 148 I.C.C. 636, 639. THUS, THE TARIFF PUBLISHING THE THROUGH RATE RECOGNIZED DIVERSION AS A SERVICE FOR WHICH THE CHARGE WAS NOT INCLUDED IN THE RATE, AND INCORPORATED BY REFERENCE THE APPLICABLE CHARGE FOR SUCH SERVICE, WHEN PERFORMED.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS NO BASIS FOR APPLYING A COMBINATION OF RATES TO AND FROM THE ORIGINAL DESTINATION POINT, PLUS A DIVERSION CHARGE ON THIS SHIPMENT. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.