B-148393, OCTOBER 19, 1962, 42 COMP. GEN. 203

B-148393: Oct 19, 1962

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TRANSPORTATION - RATES - TARIFFS - CONSTRUCTION AN OFFER UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT TO TRANSPORT IN PASSENGER TRAIN SERVICE ATOMIC ENERGY COMMISSION SHIPMENTS OF TRAINING MATERIAL IN GOVERNMENT-OWNED CARS UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS THOSE AVAILABLE FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA IS AN OFFER TO MOVE THE SHIPMENTS UNDER THE SECTION 22 QUOTATION OF THE JOINT MILITARY PASSENGER AGREEMENT IN EFFECT AT THE TIME THE TRANSPORTATION SERVICE IS FURNISHED. THE PERTINENT AGREEMENT PROVIDING THAT CHARGES FOR TRANSPORTING MILITARY IMPEDIMENTA WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENTS MOVED IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS WITH THE MILITARY AUTHORITIES.

B-148393, OCTOBER 19, 1962, 42 COMP. GEN. 203

ATOMIC ENERGY COMMISSION - TRANSPORTATION UNDER SECTION 22 QUOTATION - CHARGES SAME AS FOR MILITARY IMPEDIMENTA. TRANSPORTATION - RATES - TARIFFS - CONSTRUCTION AN OFFER UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT TO TRANSPORT IN PASSENGER TRAIN SERVICE ATOMIC ENERGY COMMISSION SHIPMENTS OF TRAINING MATERIAL IN GOVERNMENT-OWNED CARS UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS THOSE AVAILABLE FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA IS AN OFFER TO MOVE THE SHIPMENTS UNDER THE SECTION 22 QUOTATION OF THE JOINT MILITARY PASSENGER AGREEMENT IN EFFECT AT THE TIME THE TRANSPORTATION SERVICE IS FURNISHED, AND THE PERTINENT AGREEMENT PROVIDING THAT CHARGES FOR TRANSPORTING MILITARY IMPEDIMENTA WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENTS MOVED IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS WITH THE MILITARY AUTHORITIES, THE SECTION 22 QUOTATION OFFERED TO THE ATOMIC ENERGY COMMISSION REQUIRES THAT THE BASIS OF CHARGES IN THE APPROPRIATE JOINT MILITARY PASSENGER AGREEMENT APPLY EQUALLY IN COMPUTING CHARGES FOR THE TRANSPORTATION OF TRAINING MATERIALS FOR THE COMMISSION. A JOINT MILITARY PASSENGER AGREEMENT UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA IN PASSENGER SERVICE IS IN THE NATURE OF A SPECIAL TARIFF COVERING SPECIFIED TRANSPORTATION SERVICES FOR THE GOVERNMENT AND LIKE ANY OTHER TARIFF IS TO BE CONSTRUED ACCORDING TO THE MEANING WHICH THE WORDS USED REASONABLY CONVEY; THEREFORE, AN OFFER TO TRANSPORT MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE AT THE SAME CHARGE--- "THE SAME AMOUNT IN DOLLARS AND CENTS" --- AS IF THE SHIPMENT HAD MOVED IN REGULAR FREIGHT SERVICE REQUIRES A DETERMINATION OF WHAT THE NORMAL FREIGHT CHARGES WOULD BE ON A LIKE SHIPMENT OF MILITARY IMPEDIMENTA IN FREIGHT SERVICE, AND THEN THOSE CHARGES (DOLLARS AND CENTS) ARE TO BE APPLIED VIA THE PASSENGER ROUTE.

TO THE ATCHISON, TOPEKA AND SANTA FE RAILROAD COMPANY, OCTOBER 19, 1962:

WE HAVE CONSIDERED YOUR REQUEST IN YOUR LETTER OF MARCH 6, 1962, FILE G- 9983-B, AND SUBSEQUENT LETTERS FOR REVIEW OF THE SETTLEMENT OF JANUARY 12, 1962, IN CLAIM TK-724985, WHICH DISALLOWED YOUR CLAIM ON BILL 9983-B FOR ADDITIONAL CHARGES OF $1.174.48. ESSENTIAL TO THE REVIEW SOUGHT IS A DETERMINATION WHETHER THE COMPUTATION OF FREIGHT CHARGES FOR THE CARRIAGE OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE IS TO BE COMPUTED VIA RAIL FREIGHT ROUTES OVER WHICH THROUGH FREIGHT RATES ARE APPLICABLE TO SHIPMENTS OF ATOMIC ENERGY COMMISSION TRAINING MATERIAL THROUGH THE MEDIUM OF A SECTION 22 QUOTATION DATED JULY 1, 1951, TO THE COMMISSION, OR WHETHER THE CHARGES MUST BE COMPUTED BY USE OF HIGHER COMBINATIONS OF FREIGHT RATES APPLICABLE VIA THE PASSENGER ROUTES ACTUALLY TRAVELED.

THE SALIENT FACTS IN THIS SITUATION ARE THAT THE VARIOUS PASSENGER CARRIERS ASSOCIATIONS, IN BEHALF OF THEIR MEMBERS, PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, OFFERED TO TRANSPORT IN PASSENGER TRAIN SERVICE BETWEEN ANY UNITED STATES POINTS, ON AND AFTER JULY 1, 1951, SHIPMENTS OF ATOMIC ENERGY COMMISSION TRAINING MATERIAL IN CERTAIN GOVERNMENT-OWNED CARS UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS THOSE AVAILABLE FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA. THERE WAS THEN IN EFFECT A SECTION 22 QUOTATION OF THE JOINT MILITARY PASSENGER AGREEMENT SERIES WHICH PROVIDED RATE BASES AND CONDITIONS FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE. THE BILLS OF LADING COVERING THE SHIPMENTS WHICH ARE THE SUBJECT OF THE PRESENT CONTROVERSY SHOW AS AUTHORITY "AUTH: JOINT MILITARY PASSENGER AGREEMENT SEC. 25 AND AEC SEC. 22 DATED: JULY 1, 1951.' THESE BILLS OF LADING, NOS. AT 172171, AT 172184, AT 172193, AT 172199, AT 172208 AND AT 172212, WERE ISSUED NOVEMBER 30, 1951, THROUGH DECEMBER 28, 1951, BY THE ROCKY FLATS AREA OFFICE OF THE UNITED STATES ATOMIC ENERGY COMMISSION, ROCKY, COLORADO, TO COVER LESS-THAN-CARLOAD QUANTITIES OF TRAINING MATERIAL IN GOVERNMENT-OWNED CARS MOVING IN PASSENGER TRAIN SERVICE TO THE ARMARILLO BRANCH OFFICE OF THE COMMISSION AT ST. FRANCIS, TEXAS. THE BILLS OF LADING WERE ROUTED "D AND RGW SPECIAL SWITCH TO DENVER, CS FWD TO AMARILLO--- ATSF (FRT) TO ST. FRANCIS.' SIX ATTENDANTS TRAVELED WITH THE SHIPMENT IN EACH CAR; CHARGES FOR THEIR TRANSPORTATION WERE COVERED BY SEPARATE BILLS OF LADING AND ARE NOT UNDER CONSIDERATION AT THIS TIME.

YOU ORIGINALLY BILLED FOR THE TRANSPORTATION OF THE TRAINING MATERIAL TOTAL CHARGES OF $2,354.92, COMPUTED AT A RATE OF $3.97 PER HUNDRED POUNDS. THESE CHARGES WERE PAID ON VOUCHER 1521 IN THE JANUARY 1960 ACCOUNTS OF REGIONAL DISBURSING OFFICER C. E. EVANS. YOU LATER SUBMITTED TO THE ATOMIC ENERGY COMMISSION YOUR SUPPLEMENTAL BILL 9983-A FOR AN ADDITIONAL $605.04; THE REGIONAL DISBURSING OFFICER PAID THIS AMOUNT ON VOUCHER 2108 OF HIS APRIL 1960 ACCOUNTS. THE ADDITIONAL PAYMENT REPRESENTED THE DIFFERENCE BETWEEN THE CHARGES PAID INITIALLY AND CHARGES COMPUTED AT A RATE OF $4.99 PER HUNDRED POUNDS, THE COMBINATION OF LOCAL FIRST CLASS FREIGHT RATES VIA THE ACTUAL ROUTE OF MOVEMENT. AFTER AUDIT OF THESE PAYMENTS HERE, YOU WERE REQUESTED TO REFUND AN OVERCHARGE OF $1,174.48, WHICH HAD BEEN DETERMINED BY USE OF THE JOINT FIRST CLASS FREIGHT RATE OF $3.01 PER HUNDRED POUNDS, AS NAMED IN FREIGHT TARIFFS APPLICABLE VIA FREIGHT ROUTES SPECIFIED IN THOSE TARIFFS. UPON YOUR FAILURE TO REFUND THE OVERCHARGE, IT WAS COLLECTED BY SETOFF AND YOUR CLAIM FOR ITS RECOVERY WAS DISALLOWED IN THE CITED SETTLEMENT. YOU CONTEND THAT THE CHARGE BASIS USED IN OUR AUDIT IS A RETROACTIVE APPLICATION OF THAT MADE AVAILABLE AUGUST 1, 1960, 8 MONTHS AFTER THESE SHIPMENTS MOVED, IN SOUTHWESTERN FREIGHT BUREAU SECTION 22 QUOTATION NO. 579, SWFB S22Q, I.C.C. NO. 375; AND THAT UNDER THE QUOTATIONS EFFECTIVE AT THE TIME OF THE SERVICE, THE PROPER RATE, IN THE ABSENCE OF A THROUGH FREIGHT ROUTE IDENTICAL WITH THAT ACTUALLY USED, IS THE COMBINATION OF LOCAL FREIGHT RATES VIA THE PASSENGER ROUTE ACTUALLY TRAVELED.

SOUTHWESTERN FREIGHT BUREAU SECTION 22 QUOTATION NO. 579 IS AN OFFER TO THE ATOMIC ENERGY COMMISSION EFFECTIVE AUGUST 1, 1960, TO TRANSPORT ANY QUANTITY OF TRAINING MATERIALS IN GOVERNMENT-OWNED CARS IN FREIGHT OR PASSENGER TRAIN SERVICE FROM ROCKY FLATS, COLORADO, TO ST. FRANCIS, TEXAS, VIA THE D AND RGW TO DENVER, THE C AND S TO SIXELA, NEW MEXICO, THE FW AND D TO AMARILLO, TEXAS, AND THE P AND SF BEYOND AT A RATE OF $3.01 PER HUNDRED POUNDS, SUBJECT TO TARIFF OF INCREASED RATES AND CHARGES NO. X- 223. APPARENTLY BECAUSE THE RATE USED IN OUR AUDIT, $3.01, IS THE SAME AND BECAUSE THE ROUTE ON THE COVERING BILLS OF LADING IS THE SAME, YOU ASSUME THAT OUR AUDIT BASIS RESULTED FROM A RETROACTIVE APPLICATION OF QUOTATION NO. 579. THIS IS NOT THE FACT. THE RATE OF $3.01 USED IN THE AUDIT HERE IS DERIVED FROM THE FIRST CLASS BASE RATE OF $2.95 PUBLISHED IN SOUTHWESTERN LINES FREIGHT TARIFF NO. SW/W-1006, I.C.C. NO. 3999, TO APPLY FROM DENVER (BASING POINT FOR ROCKY UNDER NATIONAL RATE BASES TARIFF NO. 1 -A, I.C.C. NO. 4211) TO AMARILLO (BASING POINT FOR ST. FRANCIS IN TARIFF NO. 1-A), AND INCREASED TO $3.01 UNDER TARIFF OF INCREASED RATES AND CHARGES NO. X-212. AUTHORITY FOR THE USE OF THIS RATE IS GROUNDED UPON THE QUOTATION OF JULY 1, 1951, TO THE ATOMIC ENERGY COMMISSION AND UPON JOINT MILITARY PASSENGER AGREEMENT NO. 29.

RESOLUTION OF THE PROBLEM PRESENTED IN THIS SITUATION THUS REQUIRES THAT WE CONSTRUE JOINT MILITARY PASSENGER AGREEMENT NO. 29, PARTICULARLY THE PROVISIONS RELATING TO THE TRANSPORTATION OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE. JOINT MILITARY PASSENGER AGREEMENT NO. 29 (EFFECTIVE ON THE DATE OF SERVICE BY VIRTUE OF THE EXTENSION OF THE EXPIRATION DATE IN SUPPLEMENT NO. 14), IS AN AGREEMENT UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT ENTERED INTO BY WAY OF AN OFFER FROM THE AGENTS OF THE PARTICIPATING CARRIERS TO THE MILITARY AGENCIES OF THE GOVERNMENT AND ACCEPTED BY THE AUTHORIZED REPRESENTATIVES OF THE LATTER. (SEE SECTION 36,"ACCEPTANCE OF AGREEMENT" AND THE PARTIES SIGNATORY THERETO). AS SUCH, IT IS SUBJECT TO INTERPRETATION AND CONSTRUCTION ACCORDING TO ESTABLISHED PRINCIPLES OF CONTRACT LAW. SINCE THE FUNDAMENTAL PURPOSE OF CONSTRUING A CONTRACT IS TO ACCOMPLISH THE INTENTION OF THE PARTIES (THE BINGHAMTON BRIDGE, 70 U.S. 51, 74), IT IS ESSENTIAL TO LOOK NOT ONLY TO THE SPECIFIC LANGUAGE IN WHICH IT IS COUCHED, BUT ALSO TO NECESSARY IMPLICATIONS OF THE CONTRACT TERMS. SHOULD NOT BE SO NARROWLY OR TECHNICALLY INTERPRETED AS TO FRUSTRATE ITS OBVIOUS DESIGN (NEVADA HALF MOON MINING COMPANY V. COMBINED METALS REDUCTION CO., 176 F.2D 73, CERTIORARI DENIED 338 U.S. 943), BUT SHOULD BE GIVEN A MEANING IN THE LIGHT OF THE CONDITIONS UNDER WHICH IT WAS SUBMITTED AND IN THE LIGHT OF THE PRINCIPAL APPARENT PURPOSE THAT IT WAS INTENDED TO SERVE. THOMPSON, ET AL. V. BALTIMORE AND OHIO RAILROAD COMPANY, 59 F.SUPP. 21, 35; MODIFIED 155 F.2D 767; CERTIORARI DENIED 329 U.S. 762. THIS INSTRUMENT IS ALSO IN THE NATURE OF A SPECIAL TARIFF COVERING SPECIFIED TRANSPORTATION SERVICES FOR THE GOVERNMENT AND, LIKE ANY OTHER TARIFF, IS TO BE CONSTRUED ACCORDING TO THE MEANING WHICH THE WORDS USED MIGHT REASONABLY CARRY TO THE PARTIES TO WHOM ADDRESSED. SHOULD ANY AMBIGUITY OR REASONABLE DOUBT AS TO THEIR MEANING EXIST, IT IS TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. UNITED STATES V. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, 194 F.2D 777.

TRANSPORTATION OF MILITARY IMPEDIMENTA IS ORDINARILY AVAILABLE IN REGULAR FREIGHT SERVICE AT CLASS RATES (FOR EXAMPLE: ITEM 69050, UNIFORM FREIGHT CLASSIFICATION NO. 4, PROVIDES A LESS CARLOAD RATING OF FIRST CLASS AND A CARLOAD RATING OF THIRD CLASS, SUBJECT TO A CARLOAD MINIMUM OF 24,000 POUNDS). THE EXPERIENCE OF THE MILITARY SERVICES, HOWEVER, APPARENTLY REVEALED THAT EFFICIENCY AND EXPEDITION ARE BEST ATTAINED IN CIRCUMSTANCES WHERE THERE IS AVAILABLE ALSO THE OPTION TO SHIP THE MILITARY IMPEDIMENTA WITH TROOPS OR IN CONNECTION WITH TROOP MOVEMENTS IN MIXED FREIGHT- PASSENGER TRAIN SERVICE OR IN REGULAR PASSENGER TRAIN SERVICE. TO ACHIEVE SUCH FLEXIBILITY IN THE SERVICE OFFERED, AND TO MAINTAIN THEIR COMPETITIVE POSITION WITH OTHER MODES OF TRANSPORTATION, RAIL CARRIERS INCLUDED PROVISIONS FOR SUCH SERVICE IN SECTION 25 OF THE JOINT MILITARY PASSENGER AGREEMENT. THE PROVISIONS GERMANE TO THE INSTANT SITUATION ARE:

(E) THE PASSENGER DEPARTMENTS OF THE CARRIERS HAVE AGREED WITH THE MILITARY AUTHORITIES THAT WHEN MILITARY IMPEDIMENTA, OTHER THAN CERTAIN ARTICLES WHICH ARE INCLUDED IN THE FREE BAGGAGE ALLOWANCE UNDER THE BAGGAGE TARIFFS OF THE CARRIERS, IS TRANSPORTED IN PASSENGER TRAIN SERVICE WITH TROOPS, OR IN CONNECTION WITH TROOP MOVEMENTS HANDLED IN PASSENGER TRAIN SERVICE, THE TRANSPORTATION CHARGES THEREFOR WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS WITH THE MILITARY AUTHORITIES, SUBJECT TO THE FOLLOWING RULES COVERING LOADING AND PACKING, AND ALSO SUBJECT TO COLLECTION OF PASSENGER SWITCHING CHARGES, *

(THE MATTER OF PAYMENT OF THE PASSENGER SWITCHING CHARGES HAS NOT BEEN RAISED HERE; WE UNDERSTAND THAT THESE CHARGES WERE BILLED AND PAID SEPARATELY FROM THE LINE-HAUL TRANSPORTATION CHARGES.)

(G) THE ARRANGEMENT AND BASIS FOR CHARGES SET FORTH HEREIN FOR MOVEMENT OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE APPLIES OVER ALL LINES AND ROUTES VIA WHICH THE MILITARY IMPEDIMENTA MOVES IN PASSENGER TRAIN SERVICE.

THERE IS NO AMBIGUITY IN THE QUOTED PROVISIONS; THE PLAIN MEANING OF THE WORDS USED LEAVES NO ROOM FOR REASONABLE DOUBT AS TO WHAT THEY WERE INTENDED TO CONVEY. FOLLOWING THE RULES OF CONSTRUCTION MENTIONED ABOVE, IT IS CLEAR THAT THE CARRIERS INTENDED, IN ORDER TO SECURE AND RETAIN THE BUSINESS OF TRANSPORTING MILITARY IMPEDIMENTA, TO PERMIT ITS SHIPMENT IN PASSENGER TRAIN SERVICE (SUBJECT TO CONDITIONS NOT RELEVANT HERE) AT THE SAME CHARGE--- "THE SAME AMOUNT IN DOLLARS AND CENTS"--- AS IF IT HAD MOVED IN REGULAR FREIGHT TRAIN SERVICE. IMPLICIT IN THIS LANGUAGE IS THE NECESSARY DETERMINATION OF WHAT THE NORMAL FREIGHT CHARGES WOULD BE ON A LIKE SHIPMENT OF MILITARY IMPEDIMENTA IN FREIGHT SERVICE, AND THEN THOSE CHARGES (DOLLARS AND CENTS) ARE TO BE APPLIED VIA THE PASSENGER ROUTE. THAT THIS IS A CORRECT INTERPRETATION OF THE RULE IS SUPPORTED BY THE FACT THAT A CHARGE WHICH WOULD BE "THE SAME AMOUNT IN DOLLARS AND CENTS," MUST BE BASED UPON THE APPLICABLE FREIGHT RATES AND THE THROUGH ROUTES VIA WHICH THE JOINT FREIGHT RATES APPLY. TO HOLD OTHERWISE WOULD FRUSTRATE THE OBVIOUS DESIGN OF THE AGREEMENT AND DEFEAT THE PURPOSES FOR WHICH IT WAS MADE.

REQUIREMENTS OF THE ATOMIC ENERGY COMMISSION AS TO ITS SHIPMENTS OF TRAINING MATERIALS SIMILAR TO THOSE OF THE MILITARY SERVICES IN SHIPPING MILITARY IMPEDIMENTA AND THE SAME MOTIVATION OF THE CARRIERS AS TO ATOMIC ENERGY COMMISSION TRAFFIC PRESUMABLY GAVE RISE TO THE SECTION 22 QUOTATION OF JULY 1, 1951. THIS QUOTATION PERMITTED THE SHIPMENT OF TRAINING MATERIALS IN GOVERNMENT-OWNED CARS UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS APPLIED TO THE TRANSPORTATION OF MILITARY IMPEDIMENTA. THUS, THE BASIS OF CHARGES SET FORTH IN SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT NO. 29 APPLIES EQUALLY IN COMPUTING CHARGES FOR THE TRANSPORTATION OF TRAINING MATERIALS FOR THE ATOMIC ENERGY COMMISSION.

IN THE CIRCUMSTANCES THE SETTLEMENT OF JANUARY 12, 1962, IN CLAIM TK- 724985, WAS CORRECT AND IT IS SUSTAINED.