B-146624, FEB. 27, 1962

B-146624, FEB. 27, 1962

TO NORTH AMERICAN VAN LINES:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4, 1961, ACKNOWLEDGED AUGUST 14, 1961, REQUESTING REVIEW OF SETTLEMENT CERTIFICATE OF JULY 21, 1961, WHICH DISALLOWED YOUR CLAIM FOR $58.80 ADDITIONAL CHARGES ON BILL NO. B- 90809 FOR THE TRANSPORTATION OF A SHIPMENT OF HOUSEHOLD GOODS WEIGHING 260 POUNDS FROM MARFA, TEXAS, TO FRANKFURT, GERMANY, UNDER GOVERNMENT BILL OF LADING WY-9140863, DATED JANUARY 25, 1959.

FOR THIS SERVICE YOU BILLED IN THE AMOUNT OF $265.65 WHICH INCLUDED A CHARGE OF $122.50 FOR THE COMMERCIAL WATER PORTION OF THE TRANSPORTATION. THE WATER CARRIAGE CHARGE WAS COMPUTED AT A RATE OF $24.50 PER 100 POUNDS ON A 500-POUND MINIMUM WEIGHT. IN OUR SETTLEMENTS OF AUGUST 5, 1960 AND FEBRUARY 15, 1961, WE ALLOWED YOU THE SUM OF $63.70 FOR THE WATER CARRIAGE. BY SUPPLEMENTAL BILL B 90809, DATED MARCH 23, 1961, YOU CLAIMED THE ADDITIONAL AMOUNT OF $58.50 FOR THE WATER CARRIAGE. THAT AMOUNT REPRESENTS THE DIFFERENCE BETWEEN THE WATER CARRIAGE CHARGE COMPUTED ON THE MIMINUM WEIGHT (260 AS 500 POUNDS AT $24.50/--- $122.50 AND THE CHARGE ALLOWED IN OUR SETTLEMENTS ON THE ACTUAL WEIGHT (260 POUNDS AT $24.50/--- $63.70. THIS CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE OF JULY 21, 1961.

IN REQUESTING REVIEW, YOU CONTEND THE WATER CARRIAGE CHARGE PROVIDED IN ITEM 190 OF HOUSEHOLD GOODS CARRIERS' BUREAU MILITARY RATE TARIFF I.C.C. NO. 4 IS SUBJECT TO A 500-POUND MINIMUM WEIGHT.

THE RATES AND CHARGES SHOWN IN MILITARY RATE TARIFF NO. 4 ARE CONTINUING OFFERS BY THE CARRIERS PARTY THERETO, EXTENDED TO THE GOVERNMENT UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, WHEREBY CARRIERS MAY TRANSPORT GOVERNMENT PROPERTY FREE OR AT REDUCED RATES. THE SHIPMENT WAS TENDERED TO THE INITIAL TRANSPORTATION COMPANY ON JANUARY 25, 1959, AT WHICH DATE ITEM 190-A SUPPLEMENT NO. 7 OF MRT NO. 4 WAS IN EFFECT. THIS ITEM PROVIDED AN ADDITIONAL CHARGE OF $24.50 PER 100 POUNDS WHEN COMMERCIAL WATER CARRIAGE IS SUBSTITUTED FOR MILITARY SEA TRANSPORT SERVICE, THE ITEM BEING SILENT AS TO ANY MINIMUMS. SUCH MINIMUM WEIGHT AS YOU URGE WAS NOT PRESCRIBED UNTIL ITEM 190-C SUPPLEMENT NO. 11 BECAME EFFECTIVE ON OCTOBER 17, 1959, SOME NINE MONTHS AFTER THE SHIPMENT WAS TENDERED FOR SHIPMENT. IT HAS LONG BEEN RECOGNIZED THAT THE RATE IN EFFECT ON THE DATE OF SHIPMENT IS THE LEGALLY APPLICABLE RATE. INTERSTATE REMEDY COMPANY V. AMERICAN EXPRESS CO., 16 I.C.C. 436-439; TRANSCONTINENTAL FREIGHT CO. V. DIRECTOR GENERAL, 62 I.C.C. 127-128, AND S. A. GERRARD CO. V. BELT RY.CO. OF CHICAGO, 270 I.C.C. 59-62.

YOU STATE THAT ITEMS 175 AND 180 OF MRT NO. 4 ARE SUBJECT TO 500 POUND MINIMUM WEIGHTS AND SINCE THESE TWO ITEMS COVER CHARGES FOR OTHER SERVICES FOR SHIPMENTS MOVING IN WATER TRANSPORTATION THAT ITEM 190 (190-A) LIKEWISE IS SUBJECT TO A 500-POUND MINIMUM WEIGHT. IT IS OUR VIEW HOWEVER THAT SINCE THESE ITEMS MAKE SPECIFIC REFERENCE TO A 500-POUND MINIMUM WEIGHT AND ITEM 190-A, IN EFFECT WHEN THE SHIPMENT MOVED, IS SILENT IN THIS REGARD THAT ITEM 190-A WAS NOT TO BE SUBJECT TO THE 500-POUND MINIMUM WEIGHT. MOREOVER, ITEM 101-A SPECIFICALLY PROVIDES THAT THE ,WATER TRANSPORTATION RATE IS APPLICABLE IN ADDITION TO ALL OTHER CHARGES IN THE TARIFF EXCEPT THOSE PROVIDED UNDER ITEMS 175 AND 180.' SUCH LANGUAGE SEEMS CLEARLY TO PROVIDE THAT WHERE WATER TRANSPORTATION CHARGES UNDER 190 -A ARE APPLICABLE, ITEMS 175 AND 180 HAVE NO APPLICATION; AND, ANY MINIMUM WEIGHT PROVISION IN SUCH ITEMS (175 AND 180) WOULD LIKEWISE NOT BE CONTROLLING AS TO THE CHARGES UNDER ITEM 190-A. THE INSTRUMENT (MRT NO. 4) WAS DRAFTED AND THE LANGUAGE USED WAS CHOSEN BY YOUR AGENT, HOUSEHOLD GOODS CARRIERS' BUREAU. CONSEQUENTLY, THE LANGUAGE SHOULD BE CONSTRUED MOST STRONGLY AGAINST THE MAKER AND ANY QUESTION ARISING CONCERNING THE INTERPRETATION OF THE TENDER SHOULD BE RESOLVED IN FAVOR OF THE GOVERNMENT. AMERICAN SURETY COMPANY V. PAULY, 170 U.S. 133, 144; SOUTHERN RY. V. COCA-COLA BOTTLING CO., 145 F.2D 304, AND UNION WIRE ROPE CORP. V. ATCHISON, T. AND S.F.RY., 66 F.2D 965, 967, 969.