B-156847, OCT. 1, 1965

B-156847: Oct 1, 1965

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THE SIX COVERING GOVERNMENT BILLS OF LADING SHOW THAT SINGLE-LINE SERVICE WAS PERFORMED. THIS REFERENCE WAS ON THE BILLS OF LADING WHEN THEY WERE SIGNED BY YOUR AGENT TO SHOW RECEIPT OF THE SHIPMENTS. WAS APPLICABLE ON THE SHIPMENTS. YOU WERE ASKED TO REFUND RESULTING OVERCHARGES TOTALLING $661.27. YOU PROTESTED THE ASSESSMENT OF THE OVERCHARGES CONTENDING THAT YOUR PARTICIPATION IN MAC GRT NO. 2 HAD BEEN CANCELLED PRIOR TO THE TIME THE SHIPMENTS WERE TENDERED TO YOU FOR TRANSPORTATION. YOUR SUBSEQUENT CLAIM IN THAT AMOUNT WAS DISALLOWED BY THE SETTLEMENT NOW UNDER REVIEW. THE ISSUE HERE IS WHETHER REISCH'S PARTICIPATION IN MAC GRT NO. 2 WAS CANCELLED PRIOR TO MARCH 1963. WHEN THE SHIPMENTS WERE TENDERED TO REISCH FOR TRANSPORTATION.

B-156847, OCT. 1, 1965

TO REISCH TRUCKING AND TRANSPORTATION CO., INC.:

WE REFER AGAIN TO YOUR LETTER OF MAY 14, 1965 (WITH ENCLOSURES), IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT CERTIFICATE OF MARCH 19, 1965 (OUR CLAIM NO. TK-797561). THE SETTLEMENT DISALLOWED YOUR CLAIM FOR $661.27, THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE FOR TRANSPORTING IN MARCH 1963 SIX SHIPMENTS OF FREIGHT FROM TOBYHANNA, PENNSYLVANIA, TO BROOKLYN, NEW YORK, FOR THE DEPARTMENT OF THE ARMY.

THE SIX COVERING GOVERNMENT BILLS OF LADING SHOW THAT SINGLE-LINE SERVICE WAS PERFORMED. ALSO, THE "TARIFF OR SPECIAL RATE AUTHORITIES" SPACE ON THE BILLS OF LADING CONTAINS REFERENCE TO "MAC GRT NO. 2.' THIS REFERENCE WAS ON THE BILLS OF LADING WHEN THEY WERE SIGNED BY YOUR AGENT TO SHOW RECEIPT OF THE SHIPMENTS.

FOR THESE TRANSPORTATION SERVICES YOU COLLECTED ON YOUR BILL NO. R 151 FREIGHT CHARGES TOTALLING $1,318.67. IN THE AUDIT OF THOSE CHARGES OUR TRANSPORTATION DIVISION DETERMINED AND NOTIFIED YOU THAT A LOWER CHARGE BASIS, OFFERED TO THE GOVERNMENT IN MIDDLE ATLANTIC CONFERENCE GOVERNMENT RATE TARIFF NO. 2 (MAC GRT NO. 2) AND REFERRED TO ON THE BILLS OF LADING, WAS APPLICABLE ON THE SHIPMENTS, AND YOU WERE ASKED TO REFUND RESULTING OVERCHARGES TOTALLING $661.27.

YOU PROTESTED THE ASSESSMENT OF THE OVERCHARGES CONTENDING THAT YOUR PARTICIPATION IN MAC GRT NO. 2 HAD BEEN CANCELLED PRIOR TO THE TIME THE SHIPMENTS WERE TENDERED TO YOU FOR TRANSPORTATION. THE TRANSPORTATION DIVISION DISAGREED, SUSTAINED THE BASIS FOR THE OVERCHARGES AND, IN THE ABSENCE OF YOUR REFUND, CAUSED THE OVERCHARGES TO BE COLLECTED BY DEDUCTION FROM A VOUCHER PAID IN JANUARY 1965. SEE 49 U.S.C.A. 66. YOUR SUBSEQUENT CLAIM IN THAT AMOUNT WAS DISALLOWED BY THE SETTLEMENT NOW UNDER REVIEW.

THE ISSUE HERE IS WHETHER REISCH'S PARTICIPATION IN MAC GRT NO. 2 WAS CANCELLED PRIOR TO MARCH 1963, WHEN THE SHIPMENTS WERE TENDERED TO REISCH FOR TRANSPORTATION.

IN MARCH 1960, THE MIDDLE ATLANTIC CONFERENCE, AS AGENT FOR VARIOUS CARRIERS, INCLUDING REISCH, SUBMITTED TO THE GOVERNMENT UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED (49 U.S.C.A. 22), A TENDER OF RATES CALLED MIDDLE ATLANTIC CONFERENCE GOVERNMENT RATE TARIFF NO. 2. THE TENDER APPLIES TO TRANSPORTATION BETWEEN POINTS IN THE EASTERN PART OF THE UNITED STATES AND CONTAINS A RULES SECTION AS WELL AS LOCAL AND JOINT EXPORT, IMPORT, COASTWISE, INTERCOASTAL, AND PROPORTIONAL CLASS AND COMMODITY RATES, AND EXCEPTIONS RATINGS; IT APPLIES ON SHIPMENTS MOVING UNDER GOVERNMENT BILLS OF LADING AND TENDERED BY CERTAIN GOVERNMENT AGENCIES SUCH AS THE DEPARTMENT OF THE ARMY TO CARRIERS NAMED IN AN ALPHABETICAL LIST OF PARTICIPATING CARRIERS.

RULE 1 OF MAC GRT NO. 2 IS TITLED "GOVERNING PUBLICATIONS.' IT PROVIDES IN PART THAT "THIS TARIFF IS GOVERNED, EXCEPT AS OTHERWISE PROVIDED HEREIN, BY THE FOLLOWING DESCRIBED PUBLICATIONS (INCLUDING SUPPLEMENTS THERETO AND SUBSEQUENT ISSUES THEREOF) ISSUED BY THE MIDDLE ATLANTIC CONFERENCE.' THE PUBLICATIONS LISTED INCLUDE THE NATIONAL MOTOR FREIGHT CLASSIFICATION, FREIGHT TARIFF NO. 10-SERIES (EXCEPTIONS AND RULES TARIFF), FREIGHT TARIFF NO. 12-SERIES (GROUPING GUIDE), AND FREIGHT TARIFF NO. 30-SERIES (ROUTING GUIDE). THE LIST DOES NOT INCLUDE FREIGHT TARIFF NO. 31-SERIES (PARTICIPATING CARRIER TARIFF).

RULE 4 OF GRT NO. 2 IS TITLED "TERMINATION OR MODIFICATION OF TENDER. IT READS:

"THIS TENDER MAY BE CANCELLED OR MODIFIED BY WRITTEN NOTICE OF NOT LESS THAN THIRTY (30) DAYS BY EITHER PARTY TO THE OTHER, EXCEPT AS TO SHIPMENTS MADE FROM ORIGINAL POINT OF SHIPMENT (OR PORT OF IMPORTATION, WHERE INVOLVED) BEFORE THE EFFECTIVE DATE OF SUCH NOTICE, AND EXCEPT AS TO ANY ACCRUED RIGHTS AND LIABILITIES OF EITHER PARTY HEREUNDER, AND, FURTHER, EXCEPT SUCH CANCELLATION OR MODIFICATION MAY BE ACCOMPLISHED UPON SHORTER NOTICE BY MUTUAL AGREEMENT OF THE PARTIES CONCERNED.'

THE MIDDLE ATLANTIC CONFERENCE MODIFIED THE TENDER FROM TIME TO TIME BY ISSUING CONSECUTIVELY NUMBERED SUPPLEMENTS. BY SUPPLEMENT NO. 177, ISSUED MAY 31, 1963, TO BE EFFECTIVE JULY 3, 1963, THE NAME "REISCHTRUCKING AND TRANSPORTATION CO., INC., " WAS CANCELLED FROM THE RATE TENDER'S ALPHABETICAL LIST OF PARTICIPATING CARRIERS.

THE GOVERNMENT BILLS OF LADING COVERING THE SHIPMENTS HERE INVOLVED SHOW THAT THE DEPARTMENT OF THE ARMY TENDERED THE SHIPMENTS TO REISCH DURING MARCH 1963, FOUR MONTHS BEFORE THE EFFECTIVE DATE OF SUPPLEMENT NO. 177. SINCE REISCH WAS THEN SHOWN AS A PARTY TO MAC GRT NO. 2 OUR OFFICE COMPUTED THE ALLOWABLE CHARGES ON THE BASIS OF CHARGES AUTHORIZED IN THAT TENDER.

IN TAKING EXCEPTION TO THE OVERCHARGES AND TO THE DISALLOWANCE OF YOUR CLAIM YOU EXPLAIN THAT, EFFECTIVE SEPTEMBER 23, 1961, YOU REVOKED THE CONFERENCE'S AUTHORITY TO ISSUE TARIFFS FOR YOUR ACCOUNT. YOU FURTHER STATE THAT IN IMPLEMENTING THE REVOCATION THE CONFERENCE ISSUED AN APPROPRIATE SUPPLEMENT TO FREIGHT TARIFF NO. 31-SERIES, PARTICIPATING CARRIER TARIFF, AND THAT BY SOME TIME IN 1962, REISCH'S PARTICIPATION IN ALL CONFERENCE TARIFFS INCLUDING THOSE INCORPORATED BY REFERENCE INTO MAC GRT NO. 2 HAD BEEN CANCELLED.

YOU ARGUE THAT THE CONFERENCE'S CANCELLATION OF YOUR PARTICIPATION IN THE TARIFFS WHICH ARE REFERRED TO IN RULE 1 OF MAC GRT NO. 2 EFFECTIVELY PREVENTS THE USE OF THOSE TARIFFS IN CONNECTION WITH THE RATES IN MAC GRT NO. 2. YOU ALSO ARGUE THAT YOUR REVOCATION OF THE POWER OF ATTORNEY ISSUED TO THE CONFERENCE AND ITS ACKNOWLEDGMENT OF THAT REVOCATION IS EVIDENCE OF YOUR INTENT THAT THE CONFERENCE WAS NO LONGER AUTHORIZED TO ISSUE RATE TENDERS ON YOUR BEHALF.

THE CONFERENCE, ON YOUR BEHALF, STATES THAT FREIGHT TARIFF NO. 10 SERIES CONTAINS, AMONG OTHER THINGS, ALL THE RULES AND REGULATIONS COVERING TRANSPORTATION SERVICES OTHER THAN THOSE INCLUDED IN THE LINE HAUL RATES IN MAC GRT NO. 2. SINCE FREIGHT TARIFF NO. 10-SERIES WAS CANCELLED BY AN APPROPRIATE SUPPLEMENT TO FREIGHT TARIFF NO. 31-SERIES, IT SUGGESTS THAT WITHOUT THE CORRELATIVE RULES AND REGULATIONS IN FREIGHT TARIFF NO. 10- SERIES THE RATES IN MAC GRT NO. 2 WOULD BE MEANINGLESS.

THE MIDDLE ATLANTIC CONFERENCE, UNDER APPROPRIATE POWERS OF ATTORNEY (49 CFR 187.46), ACTS AS AGENT FOR VARIOUS CARRIERS IN THE PUBLICATION OF RATES AND CHARGES AND FOR THE FILING OF TARIFFS WITH THE INTERSTATE COMMERCE COMMISSION. MIDDLE ATLANTIC CONFERENCE--AGREEMENT, 283 I.C.C. 683 (1951). IN THIS AGENCY CAPACITY AND AS AUTHORIZED IN SECTION 22 OF THE INTERSTATE COMMERCE ACT, THE CONFERENCE, ON BEHALF OF REISCH AND OTHERS, OFFERED GOVERNMENT RATE TENDER NO. 2 TO CERTAIN DEPARTMENTS AND AGENCIES OF THE GOVERNMENT.

A RATE TENDER IS CONSIDERED TO BE A CONTINUING OFFER TO PERFORM TRANSPORTATION SERVICES FOR STATED PRICES. 39 COMP. GEN. 352 (1959); 37 COMP. GEN. 753, 754 (1958). AS A CONTINUING OFFER IT CREATES IN THE PERSON TO WHOM THE OFFER IS MADE (THE OFFEREE) THE POWER TO MAKE A SERIES OF SEPARATE CONTRACTS BY A SERIES OF INDEPENDENT ACCEPTANCES, AND THAT POWER IS GOOD UNTIL REVOKED BY THE PERSON MAKING THE OFFER. CORBIN ON CONTRACTS, SECTION 38; WILLISTON ON CONTRACTS, 3RD ED., SECTION 58; RESTATEMENT OF CONTRACTS, SECTION 44. AND IT IS SETTLED THAT TO BE EFFECTIVE THE OFFEROR'S REVOCATION OF AN OFFER MUST BE COMMUNICATED TO THE OFFEREE. UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, 687 (1957), AFFIRMED 253 F.2D 956.

THE REVOCATION OF THE CONTINUING OFFER IN MAC GRT NO. 2 BY YOU OR ON YOUR BEHALF WAS NOT COMMUNICATED TO THE PERSONS TO WHOM THE OFFER WAS MADE--- IN THIS CASE THE DEPARTMENT OF THE ARMY--- PRIOR TO JULY 3, 1963, THE EFFECTIVE DATE OF SUPPLEMENT NO. 177 TO MAC GRT NO. 2. UNTIL THAT TIME THE CONTINUING OFFER OF RATES AND CHARGES IN THE TENDER LEGALLY COULD BE ACCEPTED BY THE DEPARTMENT OF THE ARMY AND WAS AVAILABLE FOR USE ON THE SIX SHIPMENTS, IN THE ABSENCE OF OBJECTION BY YOUR COMPANY PRIOR TO THE TIME THE SHIPMENTS WERE TENDERED FOR TRANSPORTATION.

AN INFERENCE THAT THE REVOCATION OF THE OFFER WAS NOT COMMUNICATED UNTIL SUPPLEMENT 177 BECAME EFFECTIVE FLOWS FROM THE FACT THAT EACH BILL OF LADING CONTAINS REFERENCE TO THE RATE TENDER AND THAT EACH SHIPMENT MOVED THROUGH TO DESTINATION IN SINGLE-LINE SERVICE WITHOUT ANY EXCEPTIONS BEING TAKEN TO THAT REFERENCE. FURTHERMORE, THE LEGAL REQUIREMENT THAT TO BE EFFECTIVE THE REVOCATION OF AN OFFER MUST BE COMMUNICATED TO THE OFFEREE IS REFLECTED IN RULE 6 OF MAC GRT NO. 2 WHICH REQUIRES THAT THE PARTIES GIVE WRITTEN NOTICE OF TERMINATION OR MODIFICATION.

IN THESE CIRCUMSTANCES, THE CANCELLATION BY THE CONFERENCE OF YOUR PARTICIPATION IN THE TARIFFS WHICH ARE INCORPORATED BY REFERENCE INTO MAC GRT NO. 2 DID NOT WITHDRAW YOUR PARTICIPATION IN THAT TENDER. AND YOUR REVOCATION OF THE POWER OF ATTORNEY ISSUED TO THE CONFERENCE AND ITS ACKNOWLEDGMENT OF THAT REVOCATION ALSO WAS INEFFECTIVE FOR THAT PURPOSE: THE GENERAL REVOCATION OF YOUR AGENT'S POWER TO ACT IN YOUR BEHALF HAD NO EFFECT IN THIS INSTANCE ON THE SUBMISSION OF THE CONTINUING OFFER, AN ACT PREVIOUSLY PERFORMED FOR YOU BY YOUR AGENT. THE OFFER CONTINUED IN EFFECT ON YOUR BEHALF UNTIL IT WAS REVOKED BY SUPPLEMENT 177.

EQUALLY INVALID IS THE CONFERENCE'S ARGUMENT THAT THE CANCELLATION OF FREIGHT TARIFF NO. 10-SERIES--- CONTAINING RULES AND REGULATIONS--- BY A SUPPLEMENT TO FREIGHT TARIFF NO. 31-SERIES MADE MEANINGLESS THE LINE-HAUL RATES IN MAC GRT NO. 2. IMPLICIT IN THIS ARGUMENT (AND TO SOME EXTENT IN YOUR ARGUMENT CONCERNING THE CANCELLATION OF YOUR PARTICIPATION IN ALL MAC TARIFFS) IS THE ASSUMPTION THAT WHEN INCORPORATION BY REFERENCE IS USED THE INCORPORATING CARRIER MUST BE A PARTICIPATING CARRIER IN THE INCORPORATED TARIFFS. THIS IS NOT TRUE. PARTIES BY CLEAR AND UNEQUIVOCAL REFERENCE CAN INCORPORATE INTO THEIR CONTRACTS THE TERMS OF SOME OTHER DOCUMENT. WILLISTON ON CONTRACTS, 3RD ED., SECTION 628; RESTATEMENT OF CONTRACTS, SECTION 235. AS FAR AS WE KNOW, THERE IS NO LEGAL REQUIREMENT THAT THE CARRIER-OFFEROR BE A PARTY TO THE DOCUMENTS OR A PARTICIPANT IN THE TARIFFS INCORPORATED BY REFERENCE INTO RATE QUOTATIONS OR TENDERS MADE UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT. SEE UNITED STATES V. BENJAMIN MOTOR EXPRESS, INC., 147 F.SUPP. 15 (1957), AFFIRMED 251 F.2D 547, IN WHICH UNDER SECTION 22 A MOTOR CARRIER AGREED TO CHARGE MOTOR CARRIER RATES BUT NOT TO EXCEED THE APPLICABLE RAILROAD RATE; SEE, ALSO, UNITED STATES V. WESSEL, DUVAL AND CO., 115 F.SUPP. 678 (1953), IN WHICH THE COURT HELD VALID THE INCORPORATION BY REFERENCE OF THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1300, ET SEQ., OTHERWISE INAPPLICABLE, INTO A CHARTER PARTY FOR VOYAGES BETWEEN FOREIGN PORTS.

THE SETTLEMENT OF MARCH 19, 1965, WHICH DISALLOWED YOUR CLAIM, HAS NOT BEEN SHOWN TO HAVE BEEN IN ERROR OTHERWISE, AND, ACCORDINGLY IT IS SUSTAINED.