B-169053, DEC. 15, 1970

B-169053, DEC. 15, 1970

FREIGHT CHARGES - LESS TRUCKLOAD SHIPMENTS DENIAL OF CLAIM FOR CHARGES DEDUCTED FROM AMOUNTS DUE FOR FOUR LESS TRUCKLOAD SHIPMENTS OF MISCELLANEOUS FREIGHT TRANSPORTED FROM TRAVIS, EDWARD & MCCLELLAN AIR FORCE BASES, CALIF., TO ROBINS AIR FORCE BASE, GEORGIA. WHERE "FREIGHT ALL KINDS" RATES ARE APPLIED, THOSE RATES MUST BE USED UNLESS THE TARIFF RATES APPLICABLE TO ALL THOSE ARTICLES PRODUCE LOWER OVERALL CHARGES. THEREFORE, THE CLAIM FOR CHARGES DEDUCTED IS DENIED.

TO GEORGIA HIGHWAY EXPRESS, INC.:

WE HAVE CONSIDERED YOUR REQUESTS OF FEBRUARY 10, 1970, YOUR CLAIMS 20766, 22309, 20377 AND 20853, FOR REVIEW OF THE SETTLEMENTS IN CLAIMS TK-897537, TK-897538, TK-897910 AND TK-898090, ALL DATED FEBRUARY 2, 1970, WHICH DISALLOWED CLAIMS TOTALING $644.41. WE CONCLUDE THAT THE SETTLEMENTS ARE CORRECT AS MADE.

THESE CLAIMS COVER FOUR LESS TRUCKLOAD SHIPMENTS OF MISCELLANEOUS FREIGHT TRANSPORTED FROM TRAVIS, EDWARDS AND MCCLELLAN AIR FORCE BASES, CALIFORNIA, TO ROBINS AIR FORCE BASE, GEORGIA, IN AUGUST AND OCTOBER 1967 AND JANUARY 1968. THE CHARGES WHICH YOU BILLED WERE PAID. LATER, WHEN THE PAID VOUCHERS WERE AUDITED HERE, RATES PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., U.S. GOVERNMENT QUOTATION I.C.C. 19, TO APPLY ON "FREIGHT ALL KINDS, EXCEPT AS INDICATED," WERE APPLIED TO THOSE PORTIONS OF THE SHIPMENT NOT SPECIFICALLY EXCLUDED FROM THE FREIGHT ALL KINDS (FAK) RATES. WHEN YOUR COMPANY DID NOT REFUND THE RESULTING OVERCHARGES, THEY WERE COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE, PURSUANT TO SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66. YOUR CLAIMS FOR THE DEDUCTIONS FOLLOWED.

THE BASIC QUESTION HERE IS THE PROPER CONSTRUCTION OF ITEM 195 OF QUOTATION I.C.C. 19, SINCE THE RULE PROVIDED IN THAT ITEM GOVERNS THE APPLICABILITY OF QUOTATION RATES TO MIXED LESS TRUCKLOAD SHIPMENTS. IT IS YOUR CONTENTION THAT ITEM 195, AT THE TIME THESE SHIPMENTS MOVED, PRECLUDED APPLICATION OF THE QUOTATION FAK RATES TO ANY PART OF THE SHIPMENTS BECAUSE THEY COULD NOT BE APPLIED TO THE WHOLE, SINCE THEY INCLUDED PROHIBITED ARTICLES. WE DISAGREE.

ITEM 195, SECOND REVISED PAGE 101-A, QUOTATION I.C.C. 19, EFFECTIVE JUNE 12, 1967, READS AS FOLLOWS:

"MIXED SHIPMENTS, LTL (EXCEPTION TO NMFC RULE 640)

"SHIPMENTS MOVING UNDER THE PROVISIONS OF THIS QUOTATION WILL BE SUBJECT TO THE FOLLOWING RULE:

"SINGLE LTL SHIPMENTS, SUBJECT TO TWO OR MORE RATES OR CLASSES, MOVING ON ONE BILL OF LADING AND DIFFERENTLY CLASSED ARTICLES ARE SEPARATELY PACKAGED, WILL BE CHARGED FOR AT THE ACTUAL OR AUTHORIZED ESTIMATED WEIGHT AND AT THE RATE OR CLASS APPLICABLE TO EACH.

"EACH BILL OF LADING SHALL BE CONSIDERED AS ONE SHIPMENT ONLY, AND EACH BILL OF LADING OR SHIPMENT WILL BE RATED IN ACCORDANCE WITH THE RATES OR CHARGES SET FORTH IN THIS QUOTATION BUT WILL NOT ALTERNATE WITH OTHER DOMESTIC CLASS OR COMMODITY RATES ON FILE WITH THE ICC, EXCEPT AS PROVIDED HEREIN.

"IF THE CHARGE ACCRUING UNDER THE DOMESTIC CLASS OR COMMODITY RATES PUBLISHED BY THE ROCKY MOUNTAIN MOTOR TARIFF BUREAU, FROM AND TO THE SAME POINTS AND VIA THE SAME ROUTES, ARE LOWER THAN THE CHARGES ACCRUING UNDER THE PROVISIONS OF THIS QUOTATION, THE LOWER CHARGES RESULTING FROM SUCH DOMESTIC CLASS OR COMMODITY RATES WILL APPLY ON EACH BILL OF LADING OR ON ANY ONE SHIPMENT, BUT EACH ITEM LISTED SEPARATELY CANNOT BE RATED SEPARATELY USING QUOTATION RATES, HEREIN, AND/OR DOMESTIC CLASS OR COMMODITY RATES FROM OTHER APPLICABLE TARIFFS ON FILE.

"EACH BILL OF LADING OR EACH SHIPMENT MUST BE RATED OR CHARGED FOR UNDER THE PROVISIONS OF THIS QUOTATION AND/OR DOMESTIC CLASS OR COMMODITY RATES APPLICABLE. EACH ARTICLE LISTED SEPARATELY CANNOT BE CONSIDERED AS A SEPARATE SHIPMENT FOR THE PURPOSE OF RATING." THE ITEM WAS AMENDED IN THIRD REVISED PAGE 101-A, EFFECTIVE OCTOBER 16, 1967, TO DELETE THE WORD "AND" FROM THE SECOND LINE OF THE FOURTH PARAGRAPH.

WE CONSTRUE THIS RULE AS REQUIRING THAT EACH LESS TRUCKLOAD SHIPMENT ON EACH BILL OF LADING IS TO BE CONSIDERED AS ONE SINGLE SHIPMENT; THAT EACH SEPARATELY PACKAGED ARTICLE IN THE SHIPMENT IS TO BE CHARGED FOR AT ITS ACTUAL OR ESTIMATED WEIGHT AT THE RATE OR CHARGE PROVIDED IN THE QUOTATION FOR THAT ARTICLE, UNLESS LOWER CHARGES RESULT FROM THE USE OF APPLICABLE TARIFF RATES IN PLACE OF THE QUOTATION RATES; AND THAT LOWER TARIFF RATES APPLICABLE TO CERTAIN ARTICLES IN THE SHIPMENT MAY NOT BE USED AS AN ALTERNATIVE TO THE QUOTATION RATES ON THOSE CERTAIN ARTICLES, WITH THE BALANCE OF THE SHIPMENT CHARGED AT THE QUOTATION RATES.

STATED ANOTHER WAY, WHERE FAK RATES ARE PROVIDED IN THE QUOTATION FOR ARTICLES IN THE SHIPMENT, THOSE RATES MUST BE USED UNLESS THE TARIFF RATES APPLICABLE TO ALL OF THOSE ARTICLES PRODUCE LOWER OVERALL CHARGES. THE SHIPPER CANNOT SELECT CERTAIN ARTICLES IN HIS SHIPMENT AND APPLY TO THEM QUOTATION RATES LOWER THAN THE OTHERWISE APPLICABLE TARIFF RATES, WHILE APPLYING TO OTHER ARTICLES IN THE SHIPMENT, ON WHICH THE QUOTATION RATES ARE HIGHER, THE LOWER APPLICABLE TARIFF RATES. TO DO SO WOULD BE TO DEFEAT THE PURPOSE OF THE FAK RATES, WHICH MAY BE HIGHER ON CERTAIN LOW- RATED ARTICLES, BUT WHICH PRODUCE AGGREGATE CHARGES FOR A SHIPMENT WHICH MAY BE LOWER THAN THOSE DETERMINED BY CLASSIFYING AND RATING EACH ARTICLE IN THE SHIPMENT SEPARATELY, AT TARIFF RATES.

BUT IF A MIXED SHIPMENT INCLUDES CONTRABAND--ARTICLES WHICH ARE SPECIFICALLY EXCLUDED BY NAME FROM THE APPLICATION OF THE FAK RATES--AS DID THE SHIPMENTS IN QUESTION HERE, THEN THE ONLY RATES APPLICABLE TO THE CONTRABAND ARE THE TARIFF RATES. THE TARIFF RATES MUST, THEREFORE, BE APPLIED TO THE CONTRABAND, WHILE THE QUOTATION APPLIES TO THE REMAINDER OF THE SHIPMENT AND EITHER THE FAK QUOTATION RATES OR THE TARIFF RATES (BUT NOT BOTH), WHICHEVER PRODUCES LOWER OVERALL CHARGES, MAY BE APPLIED. THE FACT THAT THE TARIFF RATES MUST BE APPLIED TO THE CONTRABAND DOES NOT CAUSE A VIOLATION OF THE RULE IN ITEM 195; THAT RULE DOES NOT APPLY TO THOSE ARTICLES AND THERE IS NO QUESTION AS TO ALTERNATION OF TARIFF AND QUOTATION RATES WHERE THE QUOTATION RATES DO NOT APPLY.

WE THINK THIS CONSTRUCTION IS A FAIR READING OF ITEM 195; IT GIVES EFFECT TO THE INTENT WHICH APPARENTLY INSPIRED THE RULE. ADMITTEDLY THE LANGUAGE OF ITEM 195 IS SOMEWHAT REPETITIOUS AND CONVOLUTED, BUT IT IS NOT AMBIGUOUS. AND EVEN IF IT WERE, THE AMBIGUITIES WOULD HAVE TO BE RESOLVED AGAINST THE OFFERORS OF THE QUOTATION RATES AND IN FAVOR OF THE SHIPPERS. COMPARE HUGHES TRANSPORTATION, INC. V UNITED STATES, 169 CT. CL. 63, 68 (1965); HAYES FREIGHT LINES, INC. V UNITED STATES, 163 CT. CL. 265 (1963); AERO MAYFLOWER TRANSIT COMPANY, INC. V UNITED STATES, 162 CT. CL. 233 (1963); AND UNION PACIFIC R. CO. V UNITED STATES, 287 F. 2D 593 (1961).

THAT THE POSITION WE TAKE IN THIS MATTER IS CORRECT SEEMS TO BE INDICATED BY THE PLAIN LANGUAGE OF THE 1968 REVISION OF ITEM 195, 4TH REVISED PAGE 101-A, EFFECTIVE OCTOBER 28, 1968, AS FOLLOWS:

"SHIPMENTS MOVING UNDER THE PROVISIONS OF THIS QUOTATION WILL BE SUBJECT TO THE FOLLOWING RULE:

"SINGLE LTL SHIPMENTS, SUBJECT TO TWO OR MORE RATES OR CLASSES, WHEN DIFFERENTLY CLASSED ARTICLES ARE SEPARATELY PACKAGED, WILL BE CHARGED AT THE ACTUAL OR AUTHORIZED ESTIMATED WEIGHT, AND AT THE RATE OR CLASS APPLICABLE TO EACH.

"ALL ARTICLES IN A SINGLE SHIPMENT MUST BE RATED OR CHARGED ENTIRELY UNDER THE PROVISIONS OF:

1. THIS QUOTATION (EXCEPT ARTICLES SPECIFICALLY EXCLUDED FROM THE APPLICATION OF THE RATES IN THIS QUOTATION IN INDIVIDUAL ITEMS HEREIN), OR

2. DOMESTIC CLASS AND/OR COMMODITY TARIFFS, OR

3. OTHER SECTION 22 QUOTATIONS APPLICABLE, WHICHEVER RESULTS IN THE LOWEST TOTAL CHARGE.

"ARTICLES SPECIFICALLY EXCLUDED FROM THE APPLICATION OF THE RATES IN THIS QUOTATION WILL BE CHARGED AT THE DOMESTIC CLASS AND/OR COMMODITY RATES AND/OR OTHER SECTION 22 RATES APPLICABLE.

"IN APPLYING THE PROVISIONS OF THIS RULE, NO ARTICLE OR ARTICLES LISTED SEPARATELY ON THE BILL OF LADING MAY BE CONSIDERED AS A SEPARATE SHIPMENT OR SHIPMENTS FOR THE PURPOSE OF ASSESSING CHARGES." THE FIRST SENTENCE OF THIS REVISION IS PREFACED BY A SYMBOL EXPLAINED ON 10TH REVISED PAGE 506 OF THE QUOTATION AS INDICATING: "CHANGES RESULTING IN NEITHER INCREASES NOR REDUCTIONS IN RATES OR CHARGES." THAT BEING SO, IT IS A VALID ASSUMPTION THAT THE REVISION OF ITEM 195 WAS IN THE INTEREST OF CLARITY, SETTING OUT THE CONTENT OF THE RULE WITH PRECISION.

IN THE CIRCUMSTANCES, THE SETTLEMENTS DISALLOWING YOUR CLAIMS WERE PROPER AND THEY ARE SUSTAINED.