B-146612, B-146633, DEC. 26, 1961

B-146612,B-146633: Dec 26, 1961

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FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES COMPUTED ON THE BASIS OF RATES PROVIDED IN THE SECTION 22 QUOTATION OF NOVEMBER 8. CHARGES WERE REDETERMINED ON THE BASIS OF THE RATES TENDERED TO THE DEPARTMENT OF THE NAVY IN YOUR UNNUMBERED QUOTATION OF MAY 12. THE DIFFERENCE BETWEEN THE CHARGES BASED ON THE TWO RATES WAS SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940. ARE BASED UPON THE CONTENTION THAT THE QUOTATION OF MAY 12. YOUR CLAIMS WERE DISALLOWED BY OUR CERTIFICATES OF SETTLEMENT DATED JULY 20. B. JAMES QUOTATION OF 12 MAY 1947 WAS CANCELED BY A. IT STATED QUOTE "FOLLOWING ARE THE NEW RATES EFFECTIVE AT ONCE.'.

B-146612, B-146633, DEC. 26, 1961

TO A. B. JAMES FREIGHT LINES:

IN YOUR LETTERS OF JULY 26, 1961, FILE NO. N-491/48, UC-154, 191582 (GAO TK 713555), AND OF AUGUST 2, 1961, FILE N-466/48, UC-148, 164143 (GAO TK 711659), YOU REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIMS, PER SUPPLEMENTAL BILLS NOS. UC-154 (N-491, 191582) AND UC-148 (N 466,164143) RESPECTIVELY, FOR ADDITIONAL FREIGHT CHARGES ON SEVEN SHIPMENTS OF MIXED FREIGHT TRANSPORTED FROM OAKLAND, CALIFORNIA, TO SAN DIEGO, CALIFORNIA; FROM NORTH ISLAND, CALIFORNIA, TO OAKLAND, CALIFORNIA; AND FROM SAN DIEGO, CALIFORNIA, TO OAKLAND, CALIFORNIA, BETWEEN DECEMBER 11, 1947, AND APRIL 21, 1948, UNDER GOVERNMENT BILLS OF LADING NOS. N-29549048, N-29549289, N- 30530045, N-29548830, N 29549255, N-30518411, AND N-29605101.

FOR THE SERVICES PERFORMED YOU ORIGINALLY CLAIMED AND WERE PAID FREIGHT CHARGES COMPUTED ON THE BASIS OF RATES PROVIDED IN THE SECTION 22 QUOTATION OF NOVEMBER 8, 1947, FILE L21-1/10/STR-1B), ADDRESSED TO THE U.S. NAVY, BUREAU OF SUPPLIES AND ACCOUNTS, WASHINGTON, D.C. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE, HOWEVER, CHARGES WERE REDETERMINED ON THE BASIS OF THE RATES TENDERED TO THE DEPARTMENT OF THE NAVY IN YOUR UNNUMBERED QUOTATION OF MAY 12, 1947, AND THE DIFFERENCE BETWEEN THE CHARGES BASED ON THE TWO RATES WAS SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, 49 U.S.C. 66. YOUR CLAIMS FOR REFUND OF THE DIFFERENCE BETWEEN CHARGES BASED ON THE RATES IN THE QUOTATION OF NOVEMBER 8, 1947, AND THOSE BASED ON THE QUOTATION OF MAY 12, 1947, USED IN OUR AUDIT, ARE BASED UPON THE CONTENTION THAT THE QUOTATION OF MAY 12, 1947, HAD BEEN CANCELLED BY THE QUOTATION OF NOVEMBER 8, 1947. YOUR CLAIMS WERE DISALLOWED BY OUR CERTIFICATES OF SETTLEMENT DATED JULY 20, 1961, AND JULY 26, 1961, AND IN YOUR REQUEST FOR REVIEW YOU STATE:

"IT CAN BE PLAINLY SEEN THAT A. B. JAMES QUOTATION OF 12 MAY 1947 WAS CANCELED BY A. B. JAMES QUOTATION OF 8 NOVEMBER 1947. FOR IN THIS LATER QUOTATION, IT STATED QUOTE," - - -, I AM CHANGING AND CORRECTING MINE (RATES) TO CONFORM TO COMPETITIVE RATES.' ALSO, A LITTLE FURTHER ON IN THIS QUOTATION, IT STATED QUOTE "FOLLOWING ARE THE NEW RATES EFFECTIVE AT ONCE.' ALSO, IN THIS SAME QUOTATION IT STATED QUOTE,"THE ABOVE RATES ARE TO BE USED ON BILLS DATED NOVEMBER 8TH, 1947 AND AFTER.' THIS STATEMENT ALONE IS CANCELING ALL PREVIOUS QUOTATIONS. THE ABOVE THREE STATEMENTS IN A. B. JAMES QUOTATION OF 8 NOVEMBER 1947 UNEQUIVOCALLY CANCELS A. B. JAMES QUOTATION OF 12 MAY 1947.'

AFTER CONSIDERING THE MATTER FURTHER, WE BELIEVE THAT A REASONABLE CONSTRUCTION OF THE PROVISIONS OF THE QUOTATION OF NOVEMBER 8, 1947, REQUIRES A CONCLUSION THAT THIS QUOTATION DID CANCEL THE PRIOR QUOTATION OF MAY 12, 1947. HOWEVER, BILLS OF LADING NOS. N-30530045 AND N-30518411 BEAR ON THEIR FACE THE FOLLOWING NOTATION: "SUBJECT TO APPLICABLE TARIFF RATES LAWFULLY ON FILE WITH ICC AND/OR CRC HIGHWAY CARRIERS TARIFF NUMBER TWO (2), AS A MAXIMUM.' IN OUR DECISIONS TO YOU OF SEPTEMBER 10, 1959, AND NOVEMBER 22, 1961, B-138933 AND B 146511, RESPECTIVELY, COPIES ENCLOSED, WE HELD THAT THE ABOVE-QUOTED PROVISION ON A BILL OF LADING INCORPORATES BY REFERENCE AND MAKES AN INTEGRAL PART OF THE CONTRACT OF CARRIAGE THE APPLICABLE RATES PUBLISHED IN CALIFORNIA RAILROAD COMMISSION TARIFF NO. 2 AS THE HIGHEST RATES THE GOVERNMENT COULD LEGALLY BE CALLED UPON TO PAY FOR THE SERVICE FURNISHED. ACCORDINGLY, CHARGES ALLOWABLE ON THE TWO BILLS OF LADING MENTIONED ARE NECESSARILY LIMITED TO THE RATES IN CRC NO. 2 AS A MAXIMUM.

YOU WILL BE ADVISED BY OUR TRANSPORTATION DIVISION OF THE DETAILED SETTLEMENT ACTION TAKEN OF YOUR CLAIMS, IN ACCORDANCE WITH THE CONCLUSIONS STATED ABOVE.