B-147611, MAY 31, 1962

B-147611, MAY 31, 1962

TO MR. E. F. MACMILLAN, REGISTERED AGENT, HUGHES TRANSPORTATION, INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1961, CONCERNING HUGHES TRANSPORTATION, INC., BILL NO. 1083-A-W (GAO TK 705162) REQUESTING THAT THE AMOUNT OF $1,339.26 ALLOWED THAT COMPANY BY CLAIM SETTLEMENT DATED OCTOBER 5, 1961, BE UPHELD, AND THAT THE NOTICE OF OVERPAYMENT, FORM 1003 DATED NOVEMBER 6, 1961, REQUESTING REFUND OF THAT PAYMENT, BE WITHDRAWN. THE AMOUNT OF $1,339.26 REPRESENTS CHARGES IN ADDITION TO THOSE PREVIOUSLY ALLOWED UNDER YOUR SECTION 22 QUOTATION NO. 34, EFFECTIVE JUNE 22, 1951, FOR THE TRANSPORTATION OF 15 TRUCKLOADS OF ROCKET AMMUNITION WITH EXPLOSIVE PROJECTILE FROM FORT ESTILL, KENTUCKY, TO MILAN, TENNESSEE, DURING THE PERIOD JUNE 23 TO 28, 1951, INCLUSIVE. THE QUESTION RAISED CONCERNS THE APPLICATION OF THAT QUOTATION TO THESE SHIPMENTS.

THE RECORD WITH RESPECT TO THESE SHIPMENTS SHOWS THAT ONE TRUCKLOAD OF AMMUNITION WAS RECEIVED BY THE CARRIER FOR SHIPMENT JUNE 23, 1951; FIVE TRUCKLOADS WERE RECEIVED JUNE 25, 1951; FOUR TRUCKLOADS ON JUNE 26, 1951; TWO TRUCKLOADS ON JUNE 27, 1951, AND THREE TRUCKLOADS JUNE 28, 1951. ALL OF THE TRUCKLOADS OF AMMUNITION WEIGHED 23,100 POUNDS, PLUS DUNNAGE, EXCEPT THE FIRST SHIPMENT WHICH WEIGHED 10,699 POUNDS, PLUS DUNNAGE. FOR THE TRANSPORTATION OF THESE TRUCKLOADS OF AMMUNITION, HUGHES TRANSPORTATION, INC., CLAIMED, PER BILL 1083 DATED JULY 20, 1951, CHARGES OF $355.74 PER LOAD COMPUTED ON THE BASIS OF A CLASS 65 RATE OF $1.54 PER 100 POUNDS, AT ACTUAL WEIGHT 23,100 POUNDS EXCEPT FOR THE FIRST SHIPMENT WHICH WAS BILLED AT $308, THE MINIMUM CHARGE FOR 20,000 POUNDS AT THE $1.54 RATE PER HUNDRED WEIGHT. THE RATE SO CHARGED WAS IN ACCORDANCE WITH THAT QUOTED IN HUGHES TRANSPORTATION, INC., SECTION 22 QUOTATION NO. 34, EFFECTIVE JUNE 22, 1951, ONE DAY PRIOR TO THE MOVEMENT OF THE FIRST TRUCKLOAD. THIS BILL WAS CERTIFIED AS CORRECT AND JUST BY X. O. BUNCH, JR., VICE PRESIDENT OF HUGHES TRANSPORTATION, INC. THEREAFTER, ON JULY 12, 1960, OR NINE YEARS LATER, YOU FILED CLAIM, BILL NO. 1083-A-W, FOR $6,261.64 IN ADDITIONAL CHARGES COMPUTED ON THE BASIS OF THE SAME RATE USED BY MR. X. O. BUNCH, JR., VICE PRESIDENT OF HUGHES TRANSPORTATION, INC., IN FILING HIS ORIGINAL CLAIM, BUT USING A MINIMUM WEIGHT OF 50,000 POUNDS. THIS CLAIM WAS DISALLOWED JANUARY 23, 1961. THEREAFTER, ON APRIL 19, 1961, YOU FILED A NEW CLAIM FOR $5,376.64 COMPUTED ON THE BASIS OF A CLASS 100 RATE OF $2.37 PER 100 POUNDS AND A MINIMUM WEIGHT OF 30,000 POUNDS PER TRUCKLOAD. ON OCTOBER 5, 1961, YOU WERE ALLOWED $1,339.26 COMPUTED ON THE BASIS OF A CLASS 75 RATE OF $1.93 RATE AND A MINIMUM WEIGHT OF 20,000 POUNDS, HOWEVER BY OUR NOTICE OF OVERCHARGE, FORM 1003 DATED NOVEMBER 6, 1961, YOU WERE REQUESTED TO REFUND THE AMOUNT ALLOWED. YOU NOW ASK THAT THIS NOTICE OF OVERCHARGE, FORM 1003 BE WITHDRAWN. SUPPORT OF YOUR REQUEST YOU FURNISH A LETTER DATED FEBRUARY 27, 1962, FROM X. O. BUNCH, JR., PRESIDENT, HUGHES TRANSPORTATION INC., TO YOU, WHICH APPARENTLY REVERSES HIS CERTIFICATION MADE OVER 10 YEARS PREVIOUSLY.

HUGHES TRANSPORTATION, INC., U.S. GOVERNMENT QUOTATION NO. 34, ISSUED JUNE 12, 1951, EFFECTIVE JUNE 22, 1951, DESIGNATED AS A "SPECIAL QUOTATION ON U.S. GOVERNMENT FREIGHT MOVING ON U.S. GOVERNMENT BILLS OF LADING," APPLIES ON "AMMUNITION AND EXPLOSIVES" BETWEEN POINTS HUGHES TRANSPORTATION IS AUTHORIZED TO SERVE. THE QUOTATION IS SIGNED BY X. O. BUNCH, JR., AS VICE PRESIDENT OF HUGHES TRANSPORTATION, INC. THE FOLLOWING TWO PROVISIONS OF THE QUOTATION ARE PERTINENT TO THE ISSUE RAISED.

"INTERSTATE RATES

RATES TO APPLY WILL BE 65 PERCENT OF THE CURRENT FIRST (1ST) CLASS MOTOR CARRIER RATES PUBLISHED IN TARIFFS TO WHICH HUGHES TRANSPORTATION INC. IS A PARTY SUBJECT TO 65 PERCENT OF THE CURRENT RAIL FIRST (1ST) CLASS RATES AS MAXIMUM.

"MINIMUM WEIGHT

VOLUME MINIMUM WEIGHT OF 50,000 POUNDS SUBJECT TO TRUCKLOAD MINIMUM OF 20,000 POUNDS WHEN QUANTITY TENDERED FOR SHIPMENT AT ANY ONE TIME IS LESS THAN 50,000 POUNDS IN WEIGHT.'

AN ANALYSIS OF THE QUOTED LANGUAGE SHOWS THAT BOTH A VOLUME MINIMUM WEIGHT OF 50,000 POUNDS AND A TRUCKLOAD MINIMUM WEIGHT OF 20,000 POUNDS ARE PROVIDED. A DEFINITION OF VOLUME MINIMUM AND TRUCKLOAD MINIMUM IS GIVEN IN STOVES FROM ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641,643 (FOOTNOTE), WHEREIN IN THE COMMISSION STATED:

"A VOLUME MINIMUM IS DISTINGUISHED FROM A TRUCKLOAD MINIMUM IN THAT THE VOLUME RATE APPLIES WHEN A SHIPPER TENDERS THE VOLUME MINIMUM WEIGHT OF A COMMODITY FOR TRANSPORTATION AT ONE TIME, EVEN THOUGH IT MAY EXCEED THE CARRYING CAPACITY OF THE LARGEST VEHICLE AVAILABLE AND MUST BE TRANSPORTED IN TWO OR MORE VEHICLES, WHEREAS A TRUCKLOAD MINIMUM IS GENERALLY UNDERSTOOD TO BE THE QUANTITY WHICH A CARRIER CAN TRANSPORT IN A SINGLE VEHICLE.'

IT IS OUR VIEW THAT THE PROPER INTERPRETATION OF THE MINIMUM WEIGHT PROVISION OF THE QUOTATION IS THAT, WHEN A VOLUME MINIMUM WEIGHT OF 50,000 OR MORE POUNDS IS TENDERED FOR SHIPMENT, SUCH VOLUME SHIPMENT IS NOT SUBJECT TO AN INDIVIDUAL TRUCKLOAD MINIMUM WEIGHT OF 20,000 POUNDS. FOR EXAMPLE, IF 55,000 POUNDS WERE TENDERED AND THREE VEHICLES WERE REQUIRED TO TRANSPORT THE VOLUME SHIPMENT A MINIMUM WEIGHT OF 50,000 POUNDS WOULD BE PROTECTED. FURTHER, THE CARRIER DOES NOT, UNDER THE LANGUAGE OF THE QUOTATION, RESTRICT ITSELF TO THE ACCEPTANCE OF PROPERTY IN LOTS OF 50,000 POUNDS, BUT WILL ACCEPT TENDERS IN LESSER QUANTITIES WITH THE PROVISION THAT LESSER TONNAGE WILL BE SUBJECT TO AN INDIVIDUAL TRUCKLOAD MINIMUM WEIGHT OF 20,000 POUNDS. FOR EXAMPLE, IF 45,000 POUNDS IS TENDERED FOR SHIPMENT AND THREE VEHICLES WERE REQUIRED TO TRANSPORT THE PROPERTY, A 60,000 POUND MINIMUM WEIGHT MUST BE PROTECTED. HOWEVER, IF 20,000 POUNDS OR LESS IS TENDERED AND TRANSPORTED ON ONE VEHICLE THE APPLICABLE CHARGES WOULD BE THOSE BASED ON THE QUOTATION RATE AND MINIMUM WEIGHT OF 20,000 POUNDS. IT SEEMS THAT THE INCENTIVE PROVIDED BY THE QUOTATION TO TENDER PROPERTY IN THE VOLUME WEIGHT OF 50,000 POUNDS IS TO AVERT THE PAYMENT OF FREIGHT CHARGES ON AIR WEIGHT AS COULD BE THE CASE IF A LESSER WEIGHT IS TENDERED. IN THE INSTANCES HERE INVOLVED, EACH OF THE SHIPMENTS TENDERED WAS LOADED AND TRANSPORTED IN ONE VEHICLE AND, IN EACH CASE, THE 20,000 POUND TRUCKLOAD MINIMUM WEIGHT WAS PROTECTED. THIS APPARENTLY WAS THE VIEW OF THE PRESIDENT OF HUGHES TRANSPORTATION, INC. WHEN THE MATTER WAS FRESH IN HIS MIND.

MOREOVER, IT IS TO BE NOTED THAT HUGHES TRANSPORTATION, INC., UNIFORM TENDER OF RATES OR CHARGES, NO. 43, CANCELS HUGHES TENDER NO. 34, EFFECTIVE FEBRUARY 4, 1952, APPROXIMATELY SEVEN MONTHS AFTER THE SUBJECT SHIPMENTS MOVED. THIS QUOTATION PROVIDES NO VOLUME MINIMUM WEIGHT, BUT REQUIRES A 22,000 POUND MINIMUM WEIGHT FOR EACH VEHICLE USED.

IN ANY EVENT, IF THE QUOTED PROVISIONS OF SPECIAL QUOTATION ARE AMBIGUOUS, THE DOUBT MUST BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER ENTITLING HIM TO THE BENEFIT OF THE BASIS RESULTING IN THE LOWER CHARGES. BURRUSS MILL AND ELEVATOR CO. V. CHICAGO, R.I. AND P.R.CO., 131 F.2D 532, 535. SINCE THE CARRIER DREW THE INSTRUMENT AND SELECTED THE TERMINOLOGY, ALL AMBIGUITIES AND REASONABLE DOUBTS AS TO THE MEANING OF ITS PROVISIONS SHOULD BE CONSTRUED AGAINST THE CARRIER. GREAT NORTHERN RAILWAY CO. V. COMMODITY CREDIT CORPORATION, 77 F.SUPP. 780. (786).

ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION DIVISION IN REQUESTING THE RETURN OF THE AMOUNT ERRONEOUSLY ALLOWED TO YOU IS SUSTAINED. IF NOT REMITTED PROMPTLY THE AMOUNT OF $1,339.26 WILL BE COLLECTED BY DEDUCTION IN MAKING PAYMENT OF OTHER AMOUNTS DUE HUGHES TRANSPORTATION, INC. OR BY WHATEVER OTHER MEANS MAY LEGALLY BE AVAILABLE.