B-163394, JUL. 16, 1968

B-163394: Jul 16, 1968

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YOUR CLAIM FOR REFUND OF $56.25ON A SHIPMENT COVERED BY GOVERNMENT BILL OF LADING (GBL) C-6938744 WAS DISALLOWED BY A SETTLEMENT CERTIFICATE DATED NOVEMBER 24. THE SHIPPING INSTRUCTIONS WERE FURNISHED BY CAMERON STATION. 000 POUNDS (THE ACTUAL NET WEIGHT WAS 7. IT IS THIS ITEM OF $56.25 WHICH OUR TRANSPORTATION DIVISION RECOVERED BY SETOFF AFTER DETERMINING THAT PAUL ARPIN VAN LINES TENDER ICC 340 AUTHORIZED COLLECTION OF THE MAXIMUM PACKING CHARGE ONLY. PAUL ARPIN VAN LINES TENDER ICC 340 IS IDENTIFIED IN THE GBL AS BEING APPLICABLE. IS IN TWO PARTS AND THE FIRST PART SETS FORTH SPECIFIC RATES STATED IN DOLLARS AND CENTS PER CONTAINER. THE SECOND PART OF THE ITEM IS CAPTIONED: "MAXIMUM CHARGE (EXCEPT AS SHOWN IN NOTE/-PACKING AND UNPACKING CHARGES WILL BE SUBJECT TO A MAXIMUM TOTAL CHARGE AS FOLLOWS: " THERE THEN FOLLOWS A SCHEDULE OF RATES.

B-163394, JUL. 16, 1968

TO ARTHUR E. MORRISSETTE:

IN YOUR LETTER OF DECEMBER 19, 1967, AND SUBSEQUENT CORRESPONDENCE, YOU QUESTION THE PROPRIETY OF THE CHARGE BASIS USED BY OUR TRANSPORTATION DIVISION IN THE ADJUSTMENT OF CERTAIN ACCOUNTS WHICH YOU IDENTIFY. IN THE CASE OF CLAIM NO. TK-864882, YOUR CLAIM FOR REFUND OF $56.25ON A SHIPMENT COVERED BY GOVERNMENT BILL OF LADING (GBL) C-6938744 WAS DISALLOWED BY A SETTLEMENT CERTIFICATE DATED NOVEMBER 24, 1967. THIS SHIPMENT PRESENTS THE SAME ISSUE AS IN THE OTHER ACCOUNTS IDENTIFIED IN YOUR LETTER.

GBL C-6938744 COVERED A SHIPMENT OF HOUSEHOLD GOODS FROM ARLINGTON, VIRGINIA, TO BROOKHAVEN, MISSISSIPPI, IN DECEMBER 1965. THE SHIPPING INSTRUCTIONS WERE FURNISHED BY CAMERON STATION, ALEXANDRIA, VIRGINIA. YOU BILLED AND COLLECTED TOTAL CHARGES OF $894.65, WHICH INCLUDED LINE HAUL CHARGES OF $680 AT $8.50 PER 100 POUNDS APPLIED TO A MINIMUM WEIGHT OF 8,000 POUNDS (THE ACTUAL NET WEIGHT WAS 7,920 POUNDS), A MAXIMUM PACKING CHARGE OF $158.40, AND A SPECIAL CHARGE OF $56.25 FOR "WARD CRATES MATTS," APPARENTLY SIGNIFYING WARDROBE CRATES AND MATTRESSES. IT IS THIS ITEM OF $56.25 WHICH OUR TRANSPORTATION DIVISION RECOVERED BY SETOFF AFTER DETERMINING THAT PAUL ARPIN VAN LINES TENDER ICC 340 AUTHORIZED COLLECTION OF THE MAXIMUM PACKING CHARGE ONLY, WITHOUT ADDITION OF SPECIAL CHARGES FOR SUCH ITEMS AS WARDROBE OR MATTRESS CARTONS.

PAUL ARPIN VAN LINES TENDER ICC 340 IS IDENTIFIED IN THE GBL AS BEING APPLICABLE. THE TENDER INDICATES THAT MOVERS' AND WAREHOUSEMEN'S ASSOCIATION (M-AND-WAA) RATE TENDER 1-T,"EXCEPT AS NOTED IN (AN ATTACHED APPENDIX," PRESCRIBES THE RATES OR CHARGES FOR ANY REQUIRED ACCESSORIAL SERVICES. ITEM 20 OF THE BASIC TENDER, NO. 1-T, IS IN TWO PARTS AND THE FIRST PART SETS FORTH SPECIFIC RATES STATED IN DOLLARS AND CENTS PER CONTAINER, FOR PACKING AND UNPACKING CERTAIN KINDS OF CONTAINERS, SUCH AS BARRELS, BOXES, CARTONS, CRATES, ETC. THE SECOND PART OF THE ITEM IS CAPTIONED:

"MAXIMUM CHARGE (EXCEPT AS SHOWN IN NOTE/-PACKING AND UNPACKING CHARGES WILL BE SUBJECT TO A MAXIMUM TOTAL CHARGE AS FOLLOWS: " THERE THEN FOLLOWS A SCHEDULE OF RATES, STATED IN DOLLARS AND CENTS PER 100 POUNDS, APPLICABLE TO THE TOTAL WEIGHT OF A SHIPMENT, WITH THE RATE SCALE DECREASING AS THE WEIGHT OF A SHIPMENT INCREASED WITHIN SPECIFIED WEIGHT BRACKETS. BELOW THIS SCALE OF RATES APPEARS THE NOTE REFERRED TO IN THE CAPTION, READING AS FOLLOWS:

"NOTE: THE ABOVE MAXIMUM CHARGE RATES DO NOT INCLUDE PACKING AND UNPACKING SERVICES AS LISTED BELOW, AND THE SEPARATE CHARGES THEREFOR SHALL BE ADDED TO THE MAXIMUM CHARGE. BOXES, WOODEN (ANY CATEGORY); WARDROBE CARTON; MATTRESS CARTONS (ANY CATEGORY) AND CRATES, WOODEN AND CONTAINERS (SPECIALLY DESIGNED FOR MIRRORS, PAINTINGS, GLASS OR MARBLE TOPS AND SIMILAR FRAGILE ARTICLES).'

ITEM 20 IS SO CONSTRUCTED THAT IN ORDER TO DETERMINE THE APPLICABLE CHARGE FOR A GIVEN SHIPMENT, IT IS NECESSARY FIRST TO COMPUTE THE TOTAL CHARGE AT THE RATES PROVIDED IN THE FIRST PART OF THE ITEM. IT IS THEN NECESSARY TO COMPUTE THE SO-CALLED MAXIMUM CHARGE AT THE RATES SPECIFIED IN THE SECOND PART OF THE ITEM, AND TO ADD TO THIS CHARGE THE SEPARATE CHARGES FOR THE EXCEPTED KINDS OF CONTAINERS. THIS TOTAL CHARGE THEN IS COMPARED WITH THE TOTAL CHARGE COMPUTED AT THE RATES SPECIFIED IN THE FIRST PART OF THE ITEM AND THE LESSER OF THE TWO APPLIES.

PAUL ARPIN VAN LINES TENDER ICC 340, IN THE APPENDICES THERETO, CONTAINS LINE-HAUL RATES AND EXCEPTIONS TO THE MAXIMUM PACKING AND UNPACKING CHARGES SET FORTH IN M-AND-WAA MILITARY RATE TENDER NO. 1-T. APPENDIX (1), IN THE SECTION CONCERNING SHIPMENTS TO FLORIDA, GEORGIA, ALABAMA, MISSISSIPPI, ETC., REFERS TO M-AND-WAA MRT 1-T FOR ACCESSORIAL SERVICE RATES,"EXCEPT MAXIMUM PACKING AND UNPACKING CHARGES WILL BE SUBJECT TO THE FOLLOWING RATE SCHEDULE: " THE SCHEDULE CONTAINS A SCALE OF RATES, GRADUATED ACCORDING TO BOTH WEIGHT AND MILEAGE. THERE IS NO REFERENCE IN TENDER 340 TO INDICATE THAT THE MAXIMUM PACKING AND UNPACKING RATES SO PROVIDED EXCLUDE THE PACKING AND UNPACKING OF ANY PARTICULAR TYPES OF CONTAINERS, NOR IS THERE ANY REFERENCE IN THE TENDER TO THE EXCEPTION PROVIDED IN THE SECOND PART OF ITEM 20 OF THE BASIC TENDER.

THE SPECIAL TENDER PROVISIONS, AS IN THE CASE OF TENDER 340, ARE CLOSELY COMPARABLE TO OTHER CARRIERS' SPECIAL TENDERS WHICH OFFER RATES FOR LINE- HAUL AND PACKING AND UNPACKING SERVICES AT RATES BELOW THOSE SHOWN IN THE ASSOCIATION'S BASIC TENDER. IT IS WELL KNOWN THAT COMPETITION IS VIGOROUS FOR GOVERNMENT SPONSORED HOUSEHOLD GOODS SHIPMENTS AND THAT FAVORABLE CHANGES IN RATES AND OTHER CONCESSIONS ARE OFFERED ON SHORT NOTICE IN ORDER TO OBTAIN INITIAL COMPETITIVE ADVANTAGES OR TO EQUALIZE OTHER CARRIERS' RATES AND CHARGES IN ORDER TO SHARE IN PARTICULAR BUSINESS FROM ONE OR MORE ORIGIN STATIONS. YOU SAY THAT "UPWARDS OF THIRTY CARRIERS" FILED TENDERS SIMILAR TO PAUL ARPIN VAN LINES TENDER ICC 340, AND THAT YOUR FILING ON BEHALF OF PAUL ARPIN VAN LINES IS A SO-CALLED "ME TOO" TO A PREVIOUSLY APPROVED OFFERING OF ANOTHER CARRIER. YOU STATE THAT YOU RECOGNIZED A POTENTIAL AMBIGUITY IN THE TENDER AND THAT YOU SUBMITTED YOUR OFFERING WITH AN ADDITIONAL CLARIFICATION BY THE INCLUSION OF THE WORD "EXCEPT" IN THE TENDER PROVISION RELATING TO THE MAXIMUM PACKING AND UNPACKING CHARGES.

YOU MAINTAIN THAT YOU WERE "VERBALLY ASSURED" BY RESPONSIBLE GOVERNMENT OFFICIALS THAT YOU ,NEED NOT ANTICIPATE ANY PROBLEM," APPARENTLY MEANING THAT YOU WERE ENTITLED TO ANY ADDITIONAL PACKING AND UNPACKING CHARGES FOR WARDROBE, MATTRESS, AND OTHER SPECIAL TYPE CONTAINERS.

SINCE YOU WERE ADVISED THAT THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE TOOK THE POSITION THAT THE SPECIAL PACKING AND UNPACKING CHARGES IN THE BASIC TENDERS WERE NOT COLLECTIBLE UNDER A TENDER SUCH AS NO. 340, YOU FURNISHED TWO AFFIDAVITS BY ARTHUR E. MORRISSETTE, JR., EXECUTED ON FEBRUARY 21, 1968. WE HAD UNDERSTOOD THAT YOU WOULD TRY TO OBTAIN THE AFFIDAVITS OF THE "RESPONSIBLE GOVERNMENT OFFICIALS" AT CAMERON STATION, ALEXANDRIA, AND QUANTICO, VIRGINIA.

ONE AFFIDAVIT STATES THAT MR. MORRISSETTE, IN THE MIDST OF CONFERENCES WITH GENERAL ACCOUNTING OFFICE PERSONNEL IN MAY AND NOVEMBER 1967, HAD MET WITH MR. P. A. A. DELOSPEDALE, TRAFFIC MANAGER, JOINT HOUSEHOLD SHIPPING OFFICE, AT CAMERON STATION. MR. DELOSPEDALE ALLEGEDLY STATED THAT HIS INTERPRETATION OF YOUR FILING WAS IDENTICAL TO YOUR INTENTIONS AS REFLECTED IN YOUR VOUCHERS AND THAT ALL TONNAGE HANDLED BY HIS OFFICE WAS BEING ALLOCATED IN ACCORDANCE WITH SUCH INTERPRETATION.

THE SECOND AFFIDAVIT BY MR. ARTHUR E. MORRISSETTE, JR., INDICATES THAT IN THE MIDST OF CONFERENCES WITH GENERAL ACCOUNTING OFFICE PERSONNEL IN MAY 1967, HE MET WITH MAJOR S. C. DOWELL, TRAFFIC MANAGEMENT OFFICER, SUPPLY DEPARTMENT, MARINE CORPS SCHOOLS, QUANTICO, AND THAT MAJOR DOWELL MADE A STATEMENT SIMILAR TO MR. DELOSPEDALE-S.

INASMUCH AS MTMTS HAD ON TWO PREVIOUS OCCASIONS FIRMLY INDICATED THAT THE CARRIERS INVOLVED IN THE HANDLING OF THE DISPUTED SHIPMENTS WERE NOT ENTITLED TO MORE THAN THE MAXIMUM PACKING AND UNPACKING CHARGES, WE REFERRED THE MENTIONED AFFIDAVITS TO MTMTS WITH A FULL EXPLANATION OF THE SITUATION, INCLUDING THE PERTINENT PAGES OF THE TNEDERS INVOLVED. MTMTS WROTE US A LETTER ON MAY 14, 1968, STATING THAT --

"THE MAXIMUM PACKING AND UNPACKING PROVISION OF PAUL ARPIN VAN LINES' TENDER ICC 340 AND ACE VAN AND STORAGE CO., TENDER ICC 43 ARE INTERPRETED THAT THE CHARGE IS ALL INCLUSIVE. NEITHER OF THESE TENDERS LIST ANY SERVICE ON WHICH A SEPARATE CHARGE COULD BE ADDED TO THE MAXIMUM CHARGE, THEREFORE, THE MAXIMUM CHARGE INCLUDES ALL ITEMS WITH NO EXCEPTIONS.' MTMTS ALSO INDICATED THAT IT WAS UNFORTUNATE THAT THE RESPONSIBLE PERSONNEL AT CAMERON AND QUANTICO DID NOT SEEK QUIDANCE IN INTERPRETING THE MAXIMUM PACKING PROVISIONS ESPECIALLY SINCE THEIR UNDERSTANDING APPEARS TO CONTRADICT THE VIEWS OF MTMTS AND THE BASIS ON WHICH THESE TENDERS WERE ORIGINALLY ACCEPTED.

WE THEREFORE WILL NOT REVISE THE AUDIT BASIS WHICH HAS BEEN APPLIED BY OUR TRANSPORTATION DIVISION CONSISTENTLY IN THE CASE OF ALL SIMILAR ACCOUNTS, INCLUDING THOSE OF YOUR COMPANY UNDER PAUL ARPIN VAN LINES TENDER ICC 340 AND YOUR ICC 43. SUCH DOUBT AS MIGHT EXIST AS TO THE PROPRIETY OF EXCLUDING THE SPECIAL PACKING AND UNPACKING CHARGES MUST BE RESOLVED IN FAVOR OF THE UNITED STATES, LEAVING DISSATISFIED PARTIES TO PURSUE OTHER REMEDIES, IF THEY DESIRE TO DO SO.

WE CONCUR IN THE MTMTS POSITION, AS REPORTED TO OUR OFFICE ON SEVERAL OCCASIONS, SINCE IT IS SUPPORTED BY A FAIR AND REASONABLE APPLICATION OF THE LANGUAGE IN YOUR TENDERS. TO REACH THE CONCLUSION THAT THE SPECIAL PACKING AND UNPACKING CHARGES ARE COLLECTIBLE UNDER YOUR TENDERS, IT WOULD BE NECESSARY TO READ INTO THEM THE LANGUAGE OF AN EXCEPTION WHICH IS NEITHER REFERRED TO IN THE TENDERS NOR REQUIRED BY NECESSARY IMPLICATION IN ORDER TO GIVE EFFECT TO THE TENDER PROVISIONS. THE LANGUAGE OF THE TENDERS IS PLAIN AND UNAMBIGUOUS AND THE INTENTION THUS MANIFESTED IS ALONE THE INTENTION TO WHICH THE LAW GIVES EFFECT. ATLANTIC COAST LINE R. CO. V ATLANTIC BRIDGE CO., 5TH CIR., 1932, 57 F.2D 654. IT IS WHAT THE TENDER IS AND NOT WHAT IT SHOULD HAVE BEEN THAT CONTROLS. FORT WORTH AND DENVER CITY RY. CO. V CHILDRESS COTTON OIL CO., U.S.D.C. TEXAS, 1942, 48 F.SUPP. 937, AFFIRMED 141 F.2D 558.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR $56.25 IN THE SETTLEMENT CERTIFICATE DATED NOVEMBER 24, 1967, IS SUSTAINED. SIMILAR ADJUSTMENTS WILL BE MADE IN THE OTHER ACCOUNTS IDENTIFIED IN YOUR PROTEST.