B-145011, JUN. 2, 1961

B-145011: Jun 2, 1961

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TO THE BALTIMORE AND OHIO RAILROAD COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27. FOR THE TRANSPORTATION INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID $2. THE ALLOWABLE CHARGES THUS COMPUTED WERE $2. IT WAS SET OFF IN THE PAYMENT OF YOUR BILL NO. 901017 IN FEBRUARY 1959. IS AN OFFER FOR AND ON BEHALF OF THE RAILROADS PARTIES TO TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NOS. 1-E AND 2-V TO THE DEPARTMENT OF THE ARMY. SOME OF THE ORIGINS AND DESTINATIONS ARE CLEARLY RECOGNIZABLE AS LIMITED AREAS OF MILITARY OR NAVAL SIGNIFICANCE. IS NOT WITHIN THE SWITCHING LIMITS OF WASHINGTON. WHEN SUPPLEMENT NO. 6 PROVIDED THAT THE QUOTATION WAS APPLICABLE TO ALL EASTERN POINTS TAKING THE GROUP A RATE BASIS.

B-145011, JUN. 2, 1961

TO THE BALTIMORE AND OHIO RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1961, FILE NO. USG-BILL-0608051-322, WHEREIN YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE OF NOVEMBER 30, 1960, IN CLAIM NO. TK-676237. OUR SETTLEMENT DISALLOWED YOUR CLAIM FOR $435.54 WHICH HAD BEEN DEDUCTED FROM YOUR ACCOUNTS MADE IN SATISFACTION OF A NOTICE OF OVERCHARGE, USGAO FORM 1003, ISSUED IN CONNECTION WITH A CARLOAD SHIPMENT DESCRIBED ON GOVERNMENT BILL OF LADING WY-7630756 AS "FREIGHT VEHICLE LOADED WITH FREIGHT ALL KINDS PER AUTH: TCFB SEC 22 QUOT. NUMBER 71-E-SUP NUMBER 5," THAT MOVED FROM THE BAY AREA ARMY TERMINAL CENTER, OAKLAND, CALIFORNIA, TO THE NAVAL RESEARCH LABORATORY, ANACOSTIA, D.C., "/P.O. WASHINGTON 25, D.C.)" IN JULY 1956.

FOR THE TRANSPORTATION INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID $2,762.57 IN OCTOBER 1956, ON THE BASIS OF A COMBINATION OF PUBLISHED TARIFF RATES. IN OUR AUDIT WE APPLIED THE CHARGE BASIS AUTHORIZED IN TRANS-CONTINENTAL FREIGHT BUREAU SECTION 22 QUOTATION NO. 71-E (TEA-ER NO. A-207-E), AS AMENDED BY SUPPLEMENT NO. 5, EFFECTIVE APRIL 3, 1956. THE ALLOWABLE CHARGES THUS COMPUTED WERE $2,327.03, AND UPON YOUR FAILURE TO REFUND THE OVERPAYMENT OF $435.54, IT WAS SET OFF IN THE PAYMENT OF YOUR BILL NO. 901017 IN FEBRUARY 1959.

QUOTATION NO. 71-E, AS AMENDED, IS AN OFFER FOR AND ON BEHALF OF THE RAILROADS PARTIES TO TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NOS. 1-E AND 2-V TO THE DEPARTMENT OF THE ARMY, DEPARTMENT OF THE AIR FORCE, MARINE CORPS, AND THE DEPARTMENT OF THE NAVY, TO TRANSPORT FREIGHT, ALL KINDS, WITH CERTAIN EXCEPTIONS, AS DESCRIBED IN ITEM 8510 SERIES OF TRANS- CONTINENTAL FREIGHT BUREAU TARIFF NO. A-U, IN CARLOADS, BETWEEN VARIOUS SPECIFICALLY IDENTIFIED POINTS IN THE WESTERN AND EASTERN AREAS IN THE UNITED STATES. SOME OF THE ORIGINS AND DESTINATIONS ARE CLEARLY RECOGNIZABLE AS LIMITED AREAS OF MILITARY OR NAVAL SIGNIFICANCE, BUT MANY OF THE PLACES MENTIONED ENCOMPASS LARGE AREAS SUCH AS OAKLAND, LOS ANGELES, SAN DIEGO, AND SAN FRANCISCO, CALIFORNIA, IN THE WEST, AND NEW YORK, NEW YORK, PHILADELPHIA, PENNSYLVANIA, AND WASHINGTON, D.C., IN THE EAST. OBVIOUSLY, ALL OF THESE RELATIVELY LARGE AREAS ENCOMPASS SMALLER SECTIONS OR SUBDIVISIONS BEARING DISTINCTIVE NAMES BUT BEING DEFINITELY A PART OF AND LOCATED WITHIN THE LIMITS OF THE AREA NAMED.

IN YOUR LETTER OF JANUARY 27, 1961, IT SEEMS TO BE YOUR POSITION THAT ANACOSTIA, D.C., IS NOT WITHIN THE SWITCHING LIMITS OF WASHINGTON, D.C., AND THEREFORE QUOTATION NO. 71-E DID NOT APPLY ON SHIPMENTS BILLED TO ANACOSTIA UNTIL JULY 30, 1956, WHEN SUPPLEMENT NO. 6 PROVIDED THAT THE QUOTATION WAS APPLICABLE TO ALL EASTERN POINTS TAKING THE GROUP A RATE BASIS. HOWEVER, IT IS OUR VIEW THAT WHETHER OR NOT ANACOSTIA IS NAMED IN THE CARRIERS' TARIFFS AS BEING WITHIN THE SWITCHING LIMITS OF WASHINGTON, D.C. IS IMMATERIAL INSOFAR AS THE AVAILABILITY OF QUOTATION NO. 71-E ON TRAFFIC MOVING TO WASHINGTON, D.C. AREA STATIONS, INCLUDING ANACOSTIA, IS CONCERNED. TO CONSTRUE QUOTATION NO. 71-E SO AS TO EXCLUDE ITS APPLICABILITY TO ANACOSTIA AND OTHER DISTINCTIVELY NAMED GEOGRAPHIC COMPONENTS OR SUBDIVISIONS OF THE WASHINGTON, D.C. AREA, WOULD SEEM CONTRARY TO THE PURPOSE OF THE QUOTATION AND TO THE COMPETITIVE NECESSITY WHICH PROMPTED THE PARTICIPATING CARRIERS TO SUBMIT IT TO THE MILITARY AND NAVAL AUTHORITIES. IT SEEMS CLEAR THAT IN NAMING WASHINGTON, D.C. (AS IN NAMING OTHER CITIES, AS DISTINGUISHED FROM INDIVIDUAL MILITARY AND NAVAL INSTALLATIONS AND FACILITIES WITHIN THE GEOGRAPHICAL LIMITS OF THE NAMED CITIES) THE CARRIERS INTENDED THAT THE CHARGE BASIS SO OFFERED WAS TO COVER VARIOUS MILITARY AND NAVAL INSTALLATIONS ACCESSIBLE TO THE RAILROADS SERVING WASHINGTON, D.C. IN THE ABSENCE OF ANY INDICATION IN THE QUOTATION THAT THE TERMS WASHINGTON, D.C., WAS TO BE VIEWED IN A RESTRICTIVE SENSE AS MEANING A PARTICULAR STATION OR YARD, CONTRARY TO THE GENERAL UNDERSTANDING OF THE TERM, THERE IS NO VALID BASIS FOR EXCLUDING ANACOSTIA FROM THE BENEFITS OF THE QUOTATION.

QUOTATION NO. 71-E IS A CONTINUING OFFER WHICH RIPENS INTO A CONTRACT WHEN THE GOVERNMENT MAKES ANY SHIPMENT UNDER ITS TERMS. SEE SECTION 8 OF THE QUOTATION. WHEN BILL OF LADING WY-7630756 WAS TENDERED TO THE INITIAL CARRIER'S AGENT FOR HIS ACCEPTANCE HE WAS ON NOTICE, BY REASON OF THE PERTINENT REFERENCE TO QUOTATION NO. 71-E IN THE SHIPPING DOCUMENT, THAT THE GOVERNMENT'S SHIPPING OFFICER CONTEMPLATED THE TRANSPORTATION OF THE SHIPMENT CONCERNED UNDER THE TERMS OF THE QUOTATION. THE INITIAL CARRIER'S AGENT RAISED NO OBJECTION TO THE QUOTATION REFERENCE BUT NOTED THAT CONDITION 7 (ON THE BACK OF THE BILL OF LADING) WAS TO BE DELETED. THE BILL OF LADING CONTRACT ITSELF THEREFORE CLEARLY ESTABLISHES THAT THE PARTIES AGREED AT THE TIME OF SHIPMENT THAT QUOTATION NO. 71-E WAS APPLICABLE. AND APART FROM THE BILL OF LADING THE TERMS OF THE CONTRACT TO THE EXTENT REFLECTED IN THE QUOTATION MUST RECEIVE THE CONSTRUCTION WHICH IS MOST PROBABLE AND NATURAL UNDER THE CIRCUMSTANCES SO AS TO ATTAIN THE OBJECT WHICH THE PARTIES HAD IN MIND IN MAKING IT. DECATUR BANK V. ST. LOUIS BANK, 88 U.S. 294, 298. THE CONSTRUCTION WHICH MAKES THE QUOTATION FAIR AND CUSTOMARY AND RATIONAL AND PROBABLE MUST BE PREFERRED. PHILLIPS PETROLEUM CO. V. GABLE, 128 F. 2D 943. THE RATIONAL CONSTRUCTION OF THE QUOTATION IN THIS INSTANCE IS THAT THE CARRIER, BY DESIGNATING WASHINGTON, D.C., AS ONE OF THE EASTERN DESTINATIONS INTENDED THAT SHIPMENTS TO ANACOSTIA, CUSTOMARILY CONSIDERED AS BEING IN THE WASHINGTON GEOGRAPHIC AREA, WAS SUBJECT TO THE QUOTATION CHARGE BASIS TO WASHINGTON.

IN THE CIRCUMSTANCES, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT CERTIFICATE DATED NOVEMBER 30, 1960, WAS CORRECT AND IS SUSTAINED.