B-156322, SEP. 20, 1965

B-156322, SEP. 20, 1965

TO WESTERN GILLETTE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 10, 1965, IN WHICH YOU REQUEST REVIEW OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM (NO. G-0324) FOR ADDITIONAL CHARGES OF $427.20 ON A SHIPMENT OF "ENGINES, INTERNAL, COMBUSTION, NOIBN ( A/C, RADIAL CYL. TYPE) RELEASED TO A VALUATION NOT TO EXCEED $2.50 PER LB., " WHICH WAS TRANSPORTED FROM MOUNTAIN VIEW, CALIFORNIA, TO MIAMI, FLORIDA, UNDER BILL OF LADING A 3926336 DATED MARCH 22, 1962.

IN URGING PAYMENT OF THE AMOUNT CLAIMED, YOU CONTEND THAT ITEM 300 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU U.S. GOVERNMENT QUOTATION I.C.C. NO. 10 (HEREAFTER REFERRED TO AS QUOTATION NO. 10) AUTHORIZES THE RATING OF THIS SHIPMENT UNDER ROCKY MOUNTAIN MOTOR TARIFF 21-B, MF I.C.C. 117 (HEREAFTER REFERRED TO AS TARIFF 21-B, AND THAT THE EXCEPTIONS RATINGS IN THE TARIFF TAKE PRECEDENCE OVER THE RATINGS IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION. YOU FURTHER CONTEND THAT THE MAXIMUM CHARGE PROVISION REQUIRES THE USE OF THE MINIMUM WEIGHT PUBLISHED IN CONNECTION WITH THE RATING IN THE MOTOR FREIGHT CLASSIFICATION, WHICH RESULTS IN A NET AMOUNT OF $153.60 BEING DUE ON THE SHIPMENT.

ITEM 300, ON 40TH REVISED PAGE 47 OF QUOTATION NO. 10, PROVIDES, IN PERTINENT PART, THAT:

"SUBJECT TO THE PROVISIONS OF NOTES B THRU E BELOW, ON SHIPMENTS MOVING FROM STATIONS IN * * * CALIFORNIA * * * ON THE ONE HAND, TO STATIONS IN EASTERN TERRITORY ON THE OTHER, * * * THE APPLICABLE RATE FOR ARTICLES PROVIDED WITH VOLUME OR TRUCKLOAD RATINGS OF CLASS 45 OR LOWER WILL BE 45 PER CENT OF THE CLASS 100 RATE NAMED IN RMT NO. 21-A. THE MINIMUM WEIGHT, EXCEPT AS PROVIDED IN NOTE E, WILL BE THE APPLICABLE MINIMUM WEIGHT PROVIDED IN NMFC * * *. THE RATES IN TRANS CONTINENTAL FREIGHT BUREAU FREIGHT TARIFFS NOS. 1014, I.C.C. NO. 1578, AND 1015, I.C.C. NO. 1579, AS DETERMINED FROM THE RATINGS IN NMFC WILL APPLY AS MAXIMA * * *. SHIPMENTS WEIGHING 10,000 POUNDS OR MORE SUBJECT TO RATINGS HIGHER THAN CLASS 45, WILL BE RATED FROM RMT NO. 21 A, WITH THE RATES IN TRANS-CONTINENTAL FREIGHT BUREAU FREIGHT TARIFFS 1014, I.C.C. NO. 1578, AND 1015, I.C.C. NO. 1579, AS DETERMINED FROM RATINGS IN NMFC, APPLYING AS MAXIMA.'

NOTE E IN ITEM 300 PROVIDES THAT:

"ON SHIPMENTS OF "MACHINERY OR MACHINES OR PARTS NAMED," AS UNDER THAT HEADING IN NMFC, PROVIDED THEREIN WITH TRUCKLOAD OR VOLUME RATINGS OF CLASS 45 OR LOWER, THE APPLICABLE MINIMUM WEIGHT WILL BE A VOLUME MINIMUM WEIGHT OF 21,000 POUNDS.'

WE NOTE THAT ITEM 300 NAMED SPECIFICALLY (1) THE STATES OF ORIGIN AND DESTINATION OF THE SHIPMENTS ON WHICH ITS PROVISIONS APPLIED; (2) THE BASIS FOR DETERMINING THE APPLICABLE RATE ON ARTICLES PROVIDED WITH VOLUME OR TRUCKLOAD RATINGS OF CLASS 45 OR LOWER; (3) THE NAMES OF THE PARTICULAR CARRIERS OVER THE LINES OF WHICH THE RATE APPLIED; (4) THE VOLUME MINIMUM WEIGHTS APPLICABLE ON SHIPMENTS TRANSPORTED UNDER THIS ITEM; AND (5) A BASIS FOR DETERMINING THE MAXIMUM RATES APPLICABLE ON SHIPMENTS MOVING UNDER THE ITEM.

THE SHIPMENT INVOLVED IN THIS CASE MOVED FROM A STATION IN CALIFORNIA TO A STATION IN EASTERN TERRITORY; IT CONSISTED OF A COMMODITY FOR WHICH A VOLUME OR TRUCKLOAD RATING OF CLASS 45 WAS NAMED IN ITEM 120820 OF NATIONAL MOTOR FREIGHT CLASSIFICATION A-6; AND IT WAS ROUTED BY THE SHIPPER SOLELY OVER THE LINES OF CARRIERS NAMED IN THE ITEM. THUS, THE APPLICABLE RATE ON THE SHIPMENT IN QUESTION IS 45 PERCENT OF THE CLASS 100 RATE PUBLISHED IN TARIFF 21-A, OR SUCCESSIVE ISSUES THEREOF (SEE ITEM 105 OF QUOTATION NO. 10). SINCE THE SHIPMENT WAS SUBJECT TO THE PROVISIONS OF NOTE E OF ITEM 300, BECAUSE IT CONSISTED OF ARTICLES DESCRIBED UNDER THE HEADING OF ,MACHINERY OR MACHINES OR PARTS NAMED," AND WAS PROVIDED WITH TRUCKLOAD OR VOLUME RATINGS OF CLASS 45 IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION, THE VOLUME MINIMUM OF 21,000 POUNDS NAMED IN NOTE E IS APPLICABLE IN CONNECTION WITH THE RATE DETERMINED AS ABOVE.

YOU ALLEGE IN YOUR LETTER OF MARCH 10, 1965, THAT "ITEM 300 OF * * * U.S. GOVERNMENT QUOTATION I.C.C. NO. 10 ALLOWS USE OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC. TARIFF NO. 21-A CLASS RATES SO THE LATTER BECOMES THE GOVERNING PUBLICATION.' MANIFESTLY, AS TO THE PRESENT SHIPMENT, THIS CONTENTION IS IN ERROR, SINCE ITEM 300 SPECIFICALLY STATES THAT ON ARTICLES PROVIDED WITH A VOLUME OR A TRUCKLOAD RATING OF CLASS 45 OR LOWER THE RATE WILL BE 45 PERCENT OF THE "CLASS 100 RATE NAMED IN RMT NO. 21- A.' THUS THE REFERENCE IS TO THE "CLASS 100 RATE NAMED IN RMT NO. 21-A," AND NOT TO THAT TARIFF'S LINE OF CLASS RATES. OBVIOUSLY, THE QUOTATION IS THE GOVERNING ISSUE IN THIS INSTANCE, SINCE IT NAMED THE PROVISIONS TO BE MET BY A SHIPMENT BEFORE TARIFF 21-A WAS EVEN MENTIONED. FURTHERMORE, QUOTATION NO. 10 GOVERNED THE POINT OF ORIGIN AND DESTINATION OF THE SHIPMENT; IT GOVERNED THE PARTICIPATING CARRIERS; AND IT LAID DOWN THE QUALIFICATION FOR THE SHIPMENT--- THE EXISTENCE OF VOLUME OR TRUCKLOAD RATINGS OF CLASS 45 OR LOWER--- AND PROVIDED IN NOTE E OF ITEM 300 THAT THE APPLICABLE VOLUME MINIMUM WEIGHT SHOULD BE 21,000 POUNDS. THE QUOTATION NO. 10 EVEN PROVIDED THE BASIS FOR THE RATE--- 45 PERCENT OF THE CLASS 100 RATE NAMED IN TARIFF 21-A, OR REISSUES.

THE PROVISION IN QUOTATION NO. 10 WHICH APPLIES TO THE SHIPMENT INVOLVED IN THIS CASE DOES NOT IN ANY SENSE "ALLOW THE USE" OF TARIFF 21-A, OR THE USE OF THE CLASS RATES PUBLISHED IN THE LATTER. ALL THAT QUOTATION NO. 10 DOES, INSOFAR AS THIS SHIPMENT IS CONCERNED, IS TO REFER TO THE CLASS 100 RATE IN TARIFF 21-A AS THE MEASURE TO BE USED FOR COMPUTING A RATE IN THE MANNER PROVIDED BY THE QUOTATION. THE VERY UTMOST THAT COULD BE CLAIMED IN THIS INSTANCE WOULD BE THAT THE CLASS 100 RATE IN TARIFF 21-A, OR REISSUES--- BUT NOT THE TARIFF'S LINE OF CLASS RATES--- WAS INCORPORATED BY REFERENCE INTO THE QUOTATION. NOTHING BUT THE CLASS 100 RATE WAS INCORPORATED THEREIN. THE MATTER IS NOT OPEN TO DISPUTE THAT WHERE ONE WRITTEN INSTRUMENT REFERS TO ANOTHER FOR A SPECIFIC OR LIMITED PURPOSE ONLY, THE INSTRUMENT SO REFERRED TO BECOMES A PART OF THE INSTRUMENT WHICH CONTAINED THE REFERENCE ONLY TO THE EXTENT AND FOR THE PURPOSE SPECIFIED. GUERINI STONE COMPANY V. CARLIN, 240 U.S. 264, 277; GENERAL CONTRACTING CO. V. UNITED STATES, 70 F.2D 83; ALEXANDER V. FIDELITY AND CASUALTY COMPANY, 100 SO. 2D 347; MERCER V. KNOX, 193 S.W. 2D 885, 888. THAT THE FOREGOING IS THE PROPER CONSTRUCTION OF THE PORTION OF ITEM 300 OF THE QUOTATION THAT APPLIES TO THE SHIPMENT UNDER CONSIDERATION IS ABUNDANTLY CLEAR WHEN CONTRASTED WITH THE PROVISIONS IN THE LAST SENTENCE OF THE QUOTED PORTION OF ITEM 300. THAT SENTENCE HAS NOTHING TO DO WITH THE SHIPMENT INVOLVED IN THIS CASE. IT APPLIES ONLY IN CONNECTION WITH SHIPMENTS WEIGHING 10,000 POUNDS OR OVER WHICH ARE SUBJECT TO RATING HIGHER THAN CLASS 45, AND IT PROVIDES THAT SUCH SHIPMENTS WILL BE RATED FROM RMT NO. 21-A, SUBJECT TO A MAXIMUM CHARGE.

THUS, QUOTATION NO. 10 PROVIDED SPECIFICALLY FOR A RATE ON THIS SHIPMENT WHICH WAS 45 PERCENT OF THE CLASS 100 RATE PUBLISHED IN TARIFF 21-A, OR REISSUES, SUBJECT TO A VOLUME MINIMUM WEIGHT OF 21,000 POUNDS, AS DISTINGUISHED FROM THE PROVISION FOR THE OTHER TYPE OF SHIPMENT THAT IT "WILL BE RATED FROM RMT NO. 21-A.' HOWEVER, IN CONNECTION WITH THE PROVISION FOR SHIPMENTS OF THE TYPE INVOLVED IN THIS CASE, ITEM 300 OF THE QUOTATION NO. 10 SETS A CEILING ON WHAT MAY BE CHARGED FOR SHIPMENTS TRANSPORTED THEREUNDER BY PROVIDING A MAXIMUM CHARGE COMPUTED ON THE BASIS OF THE RAILROAD RATES PUBLISHED IN TRANS CONTINENTAL FREIGHT BUREAU FREIGHT TARIFFS 1014, I.C.C. 1578, AND 1015, I.C.C. 1579, IN CONNECTION WITH THE RATINGS PUBLISHED IN THE NATIONAL MOTOR FREIGHT CLASSIFICATION.

ACCORDINGLY, THE CHARGES IN THIS CASE WILL BE RECOMPUTED ON THE BASIS OF A RATE OF 45 PERCENT OF THE CLASS 100 RATE PUBLISHED IN TARIFF 21-A, OR REISSUES AT A VOLUME MINIMUM WEIGHT OF 21,000 POUNDS, AND ON THE BASIS OF THE CLASS 45 RATE PUBLISHED IN TRANS-CONTINENTAL FREIGHT BUREAU RAILROAD TARIFFS 1014 AND 1015, AT THE VOLUME MINIMUM WEIGHT OF 24,000 POUNDS, AS SHOWN IN ITEM 120820 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION A-6. THE SETTLEMENT WILL BE AMENDED TO THE BASIS OF THE LOWER OF THE TWO CHARGES, AND A COPY OF THE AMENDED SETTLEMENT WILL REACH YOU IN DUE COURSE.