B-153280, SEPTEMBER 16, 1964, 44 COMP. GEN. 146

B-153280, SEPTEMBER 16, 1964, 44 COMP. GEN. 146

TRANSPORTATION - RATES - THROUGH - DESTINATION CHANGES THE DIVERSION EN ROUTE TO THE PORT OF NEW ORLEANS OF A SHIPMENT OF HOUSEHOLD GOODS PICKED UP IN GERMANY TO A DESTINATION IN THE UNITED STATES OTHER THAN THE ONE TO WHICH CONSIGNED DOES NOT EFFECT THE APPLICATION OF THE THROUGH RATE PROVIDED IN THE HOUSEHOLD GOODS CARRIERS' BUREAU MILITARY RATE TARIFF I.C.C. NO. 14, THE TARIFF CONTAINING NO ROUTING REQUIREMENT PRESCRIBING THE PARTICULAR PORTS VIA WHICH THE THROUGH RATES APPLY, AND ALTHOUGH THE PORT OF NEW YORK WOULD HAVE BEEN CLOSER THAN NEW ORLEANS TO THE ULTIMATE DESTINATION OF THE SHIPMENT, IT IS IRRELEVANT THAT THE SHIPMENT ENTERED ONE PORT RATHER THAN ANOTHER, AND THE CARRIER IS NOT ENTITLED TO PAYMENT IN EXCESS OF THE PRESCRIBED THROUGH RATE, AND THE RATES HAVING BEEN OFFERED UNDER 49 U.S.C. 22, THE OMISSION OF A RULE FOR COMPUTING TRANSPORTATION CHARGES ON DIVERTED SHIPMENTS, COUPLED WITH THE INCLUSION OF A MEANS TO ASCERTAIN THE DIVERSION SERVICE CHARGE, JUSTIFIES CONSTRUING THAT THE THROUGH RATE APPLIED TO THE SHIPMENT DIVERTED EN ROUTE.

TO THE NORTH AMERICAN VAN LINES, SEPTEMBER 16, 1964:

WE HAVE CONSIDERED YOUR REQUEST OF JANUARY 14, 1964, FOR REVIEW OF OUR SETTLEMENT CERTIFICATE (CLAIM TK-733581) DATED APRIL 9, 1963, WHICH SETTLED THE ALLOWABLE CHARGES, UNDER YOUR CONTRACT H-7051, FOR THE TRANSPORTATION OF HOUSEHOLD GOODS OWNED BY COLONEL RICHARD H. ROSS FROM WIESBADEN, GERMANY, TO WRIGHT-PATTERSON AIR FORCE BASE, OHIO. WE CONCLUDE THAT THE CHARGES WERE PROPERLY SETTLED IN ACCORDANCE WITH THE APPLICABLE TENDERS AND TARIFF AND THAT THERE IS NOTHING FURTHER DUE YOU ON THIS SHIPMENT.

THE RECORD SHOWS THAT COLONEL ROSS' HOUSEHOLD GOODS WERE PICKED UP AT WIESBADEN, GERMANY, ON JULY 8, 1960, CONSIGNED TO BROOKLEY AIR FORCE BASE, ALABAMA. BILL OF LADING AF-1141081, COVERING THE THROUGH SERVICE, SHOWS THAT THE SHIPPING OFFICER REQUESTED THROUGH CONTAINER DOOR TO DOOR SERVICE; THAT THE SHIPMENT WAS RELEASED "AT RATES PROVIDED IN FREIGHT TARIFF NO. 14 AND SERVICE TENDER DATED 17 OCTOBER 1959 AND SUPPLEMENTS; " AND THAT STORAGE IN TRANSIT UP TO 90 DAYS AT DESTINATION WAS AUTHORIZED. A DIVERSION CERTIFICATE DATED AUGUST 5, 1960, WAS ISSUED ON THE SHIPMENT, REPORTING THAT DIVERSION TO WRIGHT-PATTERSON AIR FORCE BASE, OHIO, HAD BEEN AUTHORIZED AUGUST 1. DELIVERY WAS ACCOMPLISHED AT WRIGHT-PATTERSON AIR FORCE BASE, OHIO, ON AUGUST 27, 1960.

YOUR BILL H-7051, IN THE AMOUNT OF $1,188.63 (TRANSPORTATION AND ACCESSORIAL CHARGES) WAS PAID ON VOUCHER NO. 174646 IN THE OCTOBER 1960 ACCOUNTS OF LIEUTENANT COLONEL GEORGE M. SECKINGER. THE LINE HAUL TRANSPORTATION CHARGES OF $1,131.83 WERE COMPUTED AT THE ZONE 28 RATE TO NEW ORLEANS, $35.10 PER 100 POUNDS, PLUS A MILEAGE RATE OF $8.60 PER 100 POUNDS BEYOND FOR 885 MILES.

WHEN THE PAID BILL WAS AUDITED HERE, IT WAS DETERMINED THAT THE TRANSPORTATION CHARGES SHOULD BE COMPUTED AT THE THROUGH ZONE 14 RATE TO WRIGHT-PATTERSON AIR FORCE BASE, $36.75 PER 100 POUNDS, REDUCING THE TOTAL AMOUNT OF THE APPLICABLE CHARGES (INCLUDING ACCESSORIAL CHARGES) TO $1,008.63. BOTH THE TRANSPORTATION RATE TO NEW ORLEANS USED IN YOUR ORIGINAL BILLING AND THAT USED IN OUR AUDIT ARE AUTHORIZED IN HOUSEHOLD GOODS CARRIERS' BUREAU MILITARY RATE TARIFF I.C.C. NO. 14, AND PUBLISHED IN NORTH AMERICAN VAN LINES TENDER NO. 505 (D/US-2 EXCEPTION TO TARIFF I.C.C. NO. 14); THE $5.00 DIVERSION CHARGE IS PUBLISHED IN MILITARY RATE TARIFF I.C.C. NO. 4. UPON YOUR FAILURE TO REFUND THE OVERCHARGE, $180, IT WAS COLLECTED BY DEDUCTION FROM ONE OF YOUR SUBSEQUENT BILLS IN JANUARY 1962. YOUR SUPPLEMENT BILL TO RECOVER THE AMOUNT SO DEDUCTED WAS DISALLOWED IN THE CITED SETTLEMENT AND YOUR PRESENT REQUEST FOR REVIEW FOLLOWED.

YOU URGE THAT THE TRANSPORTATION CHARGES SHOULD BE BASED UPON THE THROUGH RATE FROM WIESBADEN TO NEW ORLEANS, PLUS A MILEAGE RATE BEYOND TO WRIGHT- PATTERSON AIR FORCE BASE, AS BILLED, SINCE THE GOODS WERE ABOARD SHIP WHEN THE DIVERSION ORDER WAS ISSUED AND NEW ORLEANS, THE PORT OF ENTRY, WAS THE FIRST POINT AT WHICH THE DIVERSION COULD BE EFFECTED. YOU BASE YOUR CONTENTION ON TWO GROUNDS. FIRST, YOU CONCLUDE THAT THE THROUGH RATES FROM GERMANY TO UNITED STATES POINTS PROVIDED IN THE APPLICABLE TENDER, HOUSEHOLD GOODS CARRIERS' BUREAU MILITARY RATE TARIFF I.C.C. NO. 14, ARE COMPUTED VIA THE NEAREST UNITED STATES PORT. NEW YORK WOULD BE THE NORMAL PORT OF ENTRY FOR WRIGHT-PATTERSON AIR FORCE BASE; THEREFORE, YOU SAY, THE THROUGH RATE FROM GERMANY TO WRIGHT-PATTERSON APPLIES ONLY VIA THE PORT OF NEW YORK, NOT THE PORT OF NEW ORLEANS. SECOND, YOU ARGUE THAT SINCE TARIFF I.C.C. NO. 14 NEITHER DEFINES A DIVERSION NOR PRESCRIBES A RULE FOR COMPUTING CHARGES ON DIVERTED SHIPMENTS (ALTHOUGH IT DOES REFER TO MILITARY RATE TARIFF I.C.C. NO. 4 AS THE SOURCE OF SERVICE CHARGES, SUCH AS THAT FOR DIVERSION, NOT INCLUDED IN THE TRANSPORTATION RATE) BUT DOES AUTHORIZE RECOURSE TO THE PUBLISHED TARIFFS OF PARTICIPANTS TO SUPPLY REQUIRED RULES AND REGULATIONS, IT IS NECESSARY TO MAKE A COMBINATION OF RATES OVER NEW ORLEANS IN ACCORDANCE WITH RULE 28 (D), SUPPLEMENT NO. 3 TO HOUSEHOLD GOODS CARRIERS' BUREAU TARIFF NO. 78-B, MF-I.C.C. NO. 90.

UPON CONSIDERATION OF BOTH THE MILITARY RATE TENDERS AND TARIFF NO. 78-B, WE CONCLUDE THAT YOUR POSITION IS NOT SUPPORTABLE. MILITARY RATE TARIFF I.C.C. NO. 14, PUBLISHING THE THROUGH RATES FROM ORIGIN IN GERMANY TO BOTH BROOKLEY AIR FORCE BASE AND WRIGHT-PATTERSON AIR FORCE BASE, CONTAINS NO ROUTING REQUIREMENT WHICH PRESCRIBES THE PARTICULAR PORTS VIA WHICH THOSE RATES APPLY. THAT A SHIPMENT ENTERED THE UNITED STATES THROUGH ONE PORT RATHER THAN ANOTHER IS, THEREFORE, IRRELEVANT TO THE APPLICATION OF THE THROUGH RATE TO THE ULTIMATE DESTINATION. IT IS, OF COURSE, OBVIOUS THAT THE COMPILERS OF TARIFF I.C.C. NO. 14 NECESSARILY CONSIDERED THE RESPECTIVE PORTS OF ENTRY IN DETERMINING THE BEST COMBINATION OF LAND- OCEAN-LAND RATES UPON WHICH TO PREDICATE THE THROUGH RATES FROM GERMAN ORIGINS TO UNITED STATES DESTINATIONS. THEIR DOING SO, HOWEVER, HAS NO BEARING UPON THE USE OF THE THROUGH RATE FROM ORIGIN TO FINAL DESTINATION IN THE COMPUTATION OF THE APPLICABLE CHARGES, SINCE THE TENDER DOES NOT MAKE APPLICABILITY OF THE RATES DEPENDENT UPON A PARTICULAR PORT OF ENTRY.

MILITARY RATE TARIFF I.C.C. NO. 14, AS YOU POINT OUT, IS SILENT CONCERNING DIVERSION, EXCEPT TO PROVIDE THAT ITS TRANSPORTATION RATES DO NOT INCLUDE CHARGES FOR CERTAIN SERVICES, ONE OF WHICH IS DIVERSION, AND TO REFER TO TARIFF I.C.C. NO. 4, THE SOURCE OF THE $5 DIVERSION CHARGE, FOR SUCH CHARGES. SINCE IT IS SILENT AND SINCE THE RATES IT PROVIDES ARE STATED AS BEING OFFERED TO THE UNITED STATES PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, WE THINK THAT THE OMISSION OF A RULE FOR COMPUTING TRANSPORTATION CHARGES ON DIVERTED SHIPMENTS, COUPLED WITH THE SPECIFIC INCLUSION OF A MEANS FOR ASCERTAINING THE CHARGE FOR THE DIVERSION SERVICE, JUSTIFY CONSTRUING THE RATE TENDER AS CONTEMPLATING THAT THE THROUGH RATE TO THE ULTIMATE DESTINATION APPLIES TO SHIPMENTS DIVERTED EN ROUTE. THIS CONSTRUCTION OF TARIFF I.C.C. NO. 14 PRECLUDES ANY RECOURSE TO RULE 28 (D), SUPPLEMENT NO. 3 TO TARIFF NO. 78-B, MF- I.C.C. NO. 90. EVEN IF WE SHOULD ACCEPT YOUR CONSTRUCTION OF TARIFF I.C.C. NO. 14, HOWEVER, AND RESORT TO RULE 28 (D), THE RESULT IS THE SAME. AT THE TIME OF THIS SHIPMENT PARAGRAPH (D) OF RULE 28 PROVIDED:

(D) CHARGES ON A SHIPMENT WHICH HAS BEEN DIVERTED WILL BE ASSESSED AT THE LAWFULLY APPLICABLE RATE FROM ORIGIN TO DESTINATION, VIA THE POINT OF DIVERSION OVER THE ROUTE OF MOVEMENT, PLUS (THE DIVERSION CHARGE) * * *.

SINCE TARIFF I.C.C. NO. 14 DOES NOT DESIGNATE PORTS OF ENTRY VIA WHICH THE RATES PUBLISHED THEREIN APPLY, THERE IS NO PROHIBITION AGAINST THE APPLICABILITY OF THE ZONE 14 RATE TO WRIGHT-PATTERSON AIR FORCE BASE OVER THE ROUTE THIS SHIPMENT ACTUALLY MOVED THROUGH THE PORT OF NEW ORLEANS AS THE POINT OF DIVERSION AND THE TERMS OF RULE 28 (D) ARE COMPLIED WITH.

FINALLY, RECOURSE TO YOUR SERVICE TENDER DATED OCTOBER 17, 1959, PROVIDES NO BASIS FOR A DIFFERENT CONCLUSION. IN SUBSTANCE, YOUR SERVICE TENDER PROVIDES THAT ON MOVEMENTS OF HOUSEHOLD GOODS FROM POINTS IN GERMANY TO DESTINATIONS IN THE UNITED STATES, NORTH AMERICAN VAN LINES WILL UTILIZE THE PORTS OF NEW YORK, NEW YORK, NORFOLK, VIRGINIA, AND NEW ORLEANS, LOUISIANA. NO REFERENCE IS MADE IN THE SERVICE TENDER AS TO THE DESTINATIONS TO BE SERVED BY THE RESPECTIVE PORTS. THEREFORE, THE MOVEMENT HERE UNDER CONSIDERATION WOULD NOT BE VIOLATIVE OF THE TERMS OF YOUR SERVICE TENDER. COMPARE DEAN VAN LINES V. UNITED STATES, 310 F.2D 740 (1962).

IN THE CIRCUMSTANCES, THE SETTLEMENT IN CLAIM TK-733581 WAS PROPER AND IT IS SUSTAINED.