B-170888, NOV 30, 1971

B-170888, NOV 30, 1971

TRANSPORTATION CHARGES - EXCLUSIVE USE SERVICE - TARIFF DETERMINATION DECISION SUSTAINING PRIOR SETTLEMENTS WHICH DENIED A CLAIM FOR ADDITIONAL CHARGES ON 52 SHIPMENTS ACCORDED EXCLUSIVE USE OF VEHICLE SERVICE. THE CLAIM IS TAKEN ON THE BASIS THAT EXCLUSIVE USE SERVICE PRECLUDES USE OF THE REDUCED RATES PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU QUOTATION 12-A, PACIFIC COAST TARIFF BUREAU U.S. GOVERNMENT QUOTATION I.C.C. NO. 1, AND INTERSTATE FREIGHT CARRIERS CONFERENCE, U.S. GOVERNMENT QUOTATION I.C.C. NO. 2. THE COMP. GEN. HAS CONCLUDED THAT THE REDUCED RATES IN QUOTATION 12-A WERE AVAILABLE IN CONNECTION WITH EXCLUSIVE USE OF VEHICLE SERVICE AUTHORIZED IN ITEM 980, ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 7-B, MF- I.C.C. NO. 9 IN DETERMINING CHARGES ON SHIPMENTS OF EXPLOSIVE AMMUNITION FROM CONCORD, CALIFORNIA, TO HAWTHORNE, NEVADA, AND FROM HAWTHORNE TO HERLONG, PORT CHICAGO AND TRAVIS AIR FORCE BASE, CALIF., DURING 1969. THE COMMODITY RATES PUBLISHED IN INTERSTATE FREIGHT CARRIERS CONFERENCE QUOTATION I.C.C. NO. 2, WERE PROPERLY APPLICABLE TO SHIPMENTS ACCORDED EXCLUSIVE USE DURING 1965, 1966 AND 1967, WHEN THE SHIPMENTS HERE CONSIDERED WERE TRANSPORTED. AND THE EXCLUSIVE USE BASIS PROVIDED IN ITEM 118, PACIFIC COAST TARIFF BUREAU QUOTATION NO. 2, I.C.C. GQ NO. 1, WAS BY ITS OWN TERMS INAPPLICABLE TO EXCLUSIVE USE SHIPMENTS WHICH FULLY LOADED THE VEHICLES USED TO TRANSPORT THEM.

TO WELLS CARGO, INC.:

WE HAVE CONSIDERED YOUR REQUESTS, MADE IN MARCH, APRIL AND JUNE 1971, FOR REVIEW OF THE SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS FOR ADDITIONAL CHARGES OF $34,736.83 ON 52 SHIPMENTS ACCORDED EXCLUSIVE USE OF VEHICLE SERVICE. YOUR OBJECTIONS ARE TAKEN ON THE GROUND THAT THE EXCLUSIVE USE SERVICE PRECLUDES APPLICATION OF THE REDUCED RATES PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU QUOTATION 12-A, PACIFIC COAST TARIFF BUREAU U.S. GOVERNMENT QUOTATION I.C.C. NO. 1, AND INTERSTATE FREIGHT CARRIERS CONFERENCE, U.S. GOVERNMENT QUOTATION I.C.C. NO. 2.

OUR STUDY OF THE RECORDS OF THESE 52 SHIPMENTS SHOWS THAT 20 WERE SETTLED ON THE BASIS OF RATES PROVIDED IN QUOTATION 12-A; 24 WERE SETTLED ON THE BASIS OF RATES IN QUOTATION I.C.C. NO. 2; AND 6 WERE SETTLED AT RATES AND CHARGES PUBLISHED IN PACIFIC COAST TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 2, I.C.C. GQ NO. 1. THE GENERAL ACCOUNTING OFFICE CLAIM REFERENCES AND YOUR SUPPLEMENTAL BILL NUMBERS FOR THESE 50 SHIPMENTS ARE LISTED IN THE ENCLOSURE TO THIS DECISION UNDER THREE HEADINGS ACCORDING TO THE APPLICABLE SECTION 22 QUOTATION. THE OTHER 2 CLAIMS, TK-891040 AND TK- 891422 (YOUR SUPPLEMENTAL BILLS A 2351-4 AND A 2335-2), WERE APPARENTLY INCLUDED AMONG YOUR REQUESTS FOR REVIEW INADVERTENTLY, SINCE EXCLUSIVE USE SERVICE WAS NOT AT ISSUE IN THE SETTLEMENTS (ISSUED IN SEPTEMBER 1969) MADE THEREIN.

WE HAVE CONCLUDED THAT THE REDUCED RATES IN QUOTATION 12-A WERE AVAILABLE IN CONNECTION WITH EXCLUSIVE USE OF VEHICLE SERVICE AUTHORIZED IN ITEM 980, ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 7-B, MF-I.C.C. NO. 9, IN DETERMINING CHARGES ON SHIPMENTS OF EXPLOSIVE AMMUNITION FROM CONCORD, CALIFORNIA, TO HAWTHORNE, NEVADA, AND FROM HAWTHORNE TO HERLONG, PORT CHICAGO AND TRAVIS AIR FORCE BASE, CALIFORNIA, DURING 1969. THE COMMODITY RATES PUBLISHED IN INTERSTATE FREIGHT CARRIERS CONFERENCE QUOTATION I.C.C. NO. 2, WERE PROPERLY APPLICABLE TO SHIPMENTS ACCORDED EXCLUSIVE USE DURING 1965, 1966 AND 1967, WHEN THE SHIPMENTS HERE CONSIDERED WERE TRANSPORTED. AND THE EXCLUSIVE USE BASIS PROVIDED IN ITEM 118, PACIFIC COAST TARIFF BUREAU QUOTATION NO. 2, I.C.C. GQ NO. 1, WAS BY ITS OWN TERMS INAPPLICABLE TO EXCLUSIVE USE SHIPMENTS WHICH FULLY LOADED THE VEHICLES USED TO TRANSPORT THEM.

ON THE 20 SHIPMENTS FOR WHICH CHARGES WERE SETTLED AT THE RATES PROVIDED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU QUOTATION 12-A, YOU URGE THAT SETTLEMENTS SHOULD PROPERLY BE MADE AT THE EXCLUSIVE USE BASIS AND THE RATES PROVIDED IN WELLS CARGO, INC., TARIFF NO. 1-B, MF-I.C.C. NO. 4, AND THAT $17,994.39 REMAINS DUE YOUR COMPANY. WE DISAGREE WITH YOUR POSITION.

ROCKY MOUNTAIN QUOTATION 12-A, EFFECTIVE SEPTEMBER 4, 1967, PUBLISHES LOCAL AND JOINT CLASS AND COMMODITY RATES ON GOVERNMENT TRAFFIC BETWEEN POINTS IN CALIFORNIA, ARIZONA AND NEVADA. THE QUOTATION CONTAINS NO GENERAL PROVISIONS RELATING TO EXCLUSIVE USE OF VEHICLE SERVICE. IT IS GOVERNED BY THE PACKING REQUIREMENTS, ESTIMATED WEIGHTS AND RULES OF NATIONAL MOTOR FREIGHT CLASSIFICATION A-9, MF-I.C.C. NO. 9, AND, TO THE EXTENT THAT IT HAS TERRITORIAL APPLICATION, BY ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 7-B, MF-I.C.C. NO. 9, SUBJECT TO EXCEPTIONS 1 AND 2 (ITEM 5, SECOND REVISED PAGE 17, EFFECTIVE JANUARY 1, 1968). EXCEPTION 1 PRECLUDES THE USE OF INTERMEDIATE RULES IN THE GOVERNING TARIFFS WITH THE QUOTATION RATES; EXCEPTION 2 PROVIDES THAT THE QUOTATION RATINGS, RULES, REGULATIONS AND OTHER CONDITIONS ABROGATE AND SUPERSEDE CONFLICTING ONES IN THE GOVERNING TARIFFS.

TARIFF 7-B DOES HAVE TERRITORIAL APPLICATIONS BETWEEN THE ORIGINS AND DESTINATION; OF THE SHIPMENTS UNDER CONSIDERATION; IT THEREFORE GOVERNS QUOTATION 12-A. SINCE THE QUOTATION CONTAINS NO GENERAL EXCLUSIVE USE RULES IN CONFLICT, THOSE PUBLISHED IN TARIFF 7-B ARE INCORPORATED BY REFERENCE INTO QUOTATION 12-A AND CLEARLY APPLY IN CONNECTION WITH THE RATES PUBLISHED THEREIN. COMPARE LAMMERT FURNITURE CO. V SOUTHERN RAILWAY CO., 126 I.C.C. 197 (1927); JOHNSON-OLSON GRAIN COMPANY V THE CHICAGO & NORTHWESTERN RAILWAY CO., 231 I.C.C. 799 (1939).

ITEM 980 OF TARIFF 7-B CONTAINS THE RULES RELATING TO THE REQUEST FOR EXCLUSIVE USE OF VEHICLE SERVICE BY THE CONSIGNOR, THE FURNISHING OF SUCH SERVICE BY THE CARRIERS AND THE MINIMUM CHARGES TO BE ASSESSED FOR THAT SERVICE. THAT BEING SO, CHARGES FOR THESE 20 SHIPMENTS ARE PROPERLY DETERMINED ON THE BASIS OF THE RATES IN QUOTATION 12-A, SUBJECT TO THE EXCLUSIVE USE RULES AND MINIMUM CHARGES IN ITEM 980, TARIFF 7-B.

WE TURN NOW TO CONSIDERATION OF THE SETTLEMENTS DISALLOWING $16,742.44 WHICH WERE MADE IN 24 CLAIMS ON THE BASIS OF RATES IN INTERSTATE FREIGHT CARRIERS CONFERENCE U.S. GOVERNMENT QUOTATION I.C.C. NO. 2. EIGHTEEN SHIPMENTS CONSISTED OF EXPLOSIVE AMMUNITION TRANSPORTED FROM HAWTHORNE, NEVADA, TO HERLONG AND PORT CHICAGO, CALIFORNIA, MADE BETWEEN OCTOBER 1966 AND JANUARY 1967; ONE SHIPMENT OF ROCKET MOTORS WAS MADE IN OCTOBER 1966 FROM CONCORD, CALIFORNIA, TO HAWTHORNE. THE REMAINING 5 SHIPMENTS CONSISTED OF SUBSISTENCE STORES TRANSPORTED FROM ALAMEDA, CALIFORNIA, TO FALLON, NEVADA, IN DECEMBER 1965 AND JANUARY 1966. THE COVERING BILLS OF LADING SHOWED THAT EXCLUSIVE USE SERVICE WAS REQUESTED ON ALL OF THESE SHIPMENTS; THEY ALSO SHOW AS THE RATE AUTHORITY "IFCC TDR #2." CHARGES WERE BILLED AND PAID AT THE RATES IN TENDER I.C.C. NO. 2; YOU SUBSEQUENTLY CLAIMED ADDITIONAL CHARGES AT THE RATES IN WELLS CARGO, INC., TARIFF 1-B, MF I.C.C. NO. 4, URGING THE INAPPLICABILITY OF QUOTATION I.C.C. NO. 2. THE BASIS GENERALLY FOR YOUR SUPPLEMENTAL BILLS IS THAT THE COMMODITY RATES NAMED IN THE QUOTATION DO NOT APPLY BECAUSE EXCLUSIVE USE WAS REQUESTED AND FURNISHED AND THE QUOTATION DID NOT HAVE AN EXCLUSIVE USE RULE IN EFFECT AT TIME OF THESE SHIPMENTS.

QUOTATION I.C.C. NO. 2 WAS ISSUED EFFECTIVE APRIL 15, 1959, AND CANCELLED BY SUPPLEMENT 2, EFFECTIVE SEPTEMBER 4, 1967, WHEN ROCKY MOUNTAIN MOTOR TARIFF BUREAU QUOTATION 12-A BECAME EFFECTIVE. ITEM 85 OF QUOTATION NO. 2, WHICH AUTHORIZED EXCLUSIVE USE OF VEHICLE SERVICE, WAS CANCELLED EFFECTIVE JUNE 19, 1965, FOURTH REVISED PAGE 12, BEFORE THESE SHIPMENTS MOVED. THE CANCELLATION CARRIED THE STATEMENTS "FORMER PROVISIONS CANCELLED. NO FURTHER APPLICATION."

BEFORE THE WORD "FORMER" ARE TWO REFERENCE MARKS, A DIAMOND AND A HALF DIAMOND. ITEM 10 ON SEVENTH REVISED PAGE 10 SHOWS THAT THE DIAMOND MEANS AN INCREASE; THE HALF DIAMOND MEANS: "CHANGE RESULTING IN NEITHER AN INCREASE NOR A REDUCTION." THERE IS ALSO A CLOVER LEAF REFERENCE MARK IN FRONT OF THE TERM "ITEM 85," WHICH ITEM 10 SHOWS AS MEANING "CHANGE."

IN ANALYZING THE AFFECT OF THE CANCELLATION ITEM TOGETHER WITH THE SEVERAL REFERENCE MARKS, WE FIND IT DIFFICULT TO UNDERSTAND PRECISELY WHAT WAS INTENDED. IT IS OUR VIEW THAT THE WORDS "NO FURTHER APPLICATION" AND RELATED REFERENCE MARKS ARE SUBJECT TO SOME INTERPRETATION IN THE LIGHT OF YOUR OTHER QUOTATIONS AND RELATED PUBLICATIONS AND BECAUSE OF THE NATURE OF THE TRAFFIC. IF IT WERE INTENDED TO CANCEL THIS EXCLUSIVE USE ITEM, THE WORDS "FORMER PROVISIONS CANCELLED" WOULD HAVE ADEQUATELY ACCOMPLISHED THAT PURPOSE. THE ADDITION OF THE WORDS SUCH AS "EXCLUSIVE USE SHIPMENTS NOW COVERED BY TARIFF NO. " WOULD HAVE SERVED TO REMOVE ANY DOUBT AS TO WHAT WAS INTENDED.

WE FEEL THAT THIS ITEM IS SUSCEPTIBLE OF AT LEAST TWO CONSTRUCTIONS. YOUR VIEW IS THAT EXCLUSIVE USE SERVICE WAS NOT AVAILABLE FOR SHIPMENTS UNDER RATES IN THE QUOTATION (ALTHOUGH THIS WOULD NOT EXPLAIN THE PURPOSE OF THE HALF-DIAMOND REFERENCE MARK, WHICH MEANS "CHANGE RESULTING IN NEITHER AN INCREASE NOR A REDUCTION") AND ANOTHER VIEW THAT SEEMS SUPPORTABLE IS THAT THE WORDS "NO FURTHER APPLICATION" CAN BE REASONABLY TAKEN TO MEAN THAT THE EXCLUSIVE USE MINIMUM CHARGE FORMERLY PUBLISHED IN ITEM 85 WAS NO LONGER APPLICABLE TO EXCLUSIVE USE SHIPMENTS WHEN TENDERED UNDER THE PROVISIONS OF THE QUOTATION.

THE REASON WE SAY THIS IS BECAUSE THE TARIFF APPLYING ON COMMERCIAL TRAFFIC, THAT IS, TRAFFIC MOVING ON OTHER THAN GOVERNMENT BILLS OF LADING IS WELLS CARGO TARIFF NO. 1-B, MF-I.C.C. NO. 4. RULE 120 ON 10TH REVISED PAGE 17-A, EFFECTIVE JANUARY 17, 1966, PROVIDES AN EXCLUSIVE USE RULE WHICH STATES THAT THE CHARGE FOR SUCH SERVICE IS THE APPLICABLE CLASS OR COMMODITY RATE, SUBJECT TO A MINIMUM WEIGHT OF 30,000 POUNDS.

THIS TARIFF IS NOT REFERRED TO IN THE PACIFIC COAST TARIFF BUREAU U.S. GOVERNMENT QUOTATION NO. 2. IT WOULD THEREFORE HAVE NO APPLICATION TO THE RATES NAMED IN THE QUOTATION. HOWEVER, WE NOTE, AS EXAMPLES, THAT THE RATES IN ITEM 350, APPLYING ON THE SHIPMENTS OF AMMUNITION, AND THOSE IN ITEM 520, APPLYING ON THE SHIPMENTS OF COMMISSARY STORES, ARE SUBJECT TO A 30,000 POUND TRUCKLOAD MINIMUM WEIGHT. IF THESE COMMODITY RATES WERE APPLIED IN CONNECTION WITH THE EXCLUSIVE USE SERVICE PROVISION IN RULE 120 OF YOUR TARIFF THEY WOULD PRODUCE THE SAME REVENUE AS WOULD BE PRODUCED BY THE QUOTATION RATES AND MINIMUM WEIGHTS. ALSO, THE EXCLUSIVE USE BASIS IN ITEM 85 OF THE QUOTATION WOULD HAVE PRODUCED REVENUES COMPARABLE TO THOSE PRODUCED BY ITEM 350 AND BY THE ITEM 520 RATES AND RULE 120.

ITEM 85 OF QUOTATION NO. 2, IN EFFECT PRIOR TO JUNE 19, 1965, PROVIDED A MINIMUM CHARGE FOR EXCLUSIVE USE SERVICE FROM HAWTHORNE, NEVADA, TO HERLONG OR CONCORD, CALIFORNIA, BASED ON THE FIRST CLASS RATE NAMED IN INTERSTATE FREIGHT CARRIERS CONFERENCE TARIFF 7-B, OR SUPERSEDING ISSUES THEREOF, SUBJECT TO A MINIMUM WEIGHT OF 15,000 POUNDS. EACH OF THE SHIPMENTS OF AMMUNITION TRANSPORTED FROM HAWTHORNE, NEVADA TO HERLONG, CALIFORNIA, MOVED IN 40-FOOT VEHICLES, AND THE ACTUAL WEIGHT IN EACH CASE WAS IN EXCESS OF 42,000 POUNDS. THE APPLICABLE RATE NAMED IN ITEM 350 OF THE QUOTATION AT THE ACTUAL WEIGHT PRODUCES GREATER CHARGES THAN THE MINIMUM CHARGE BASIS PREVIOUSLY ASSESSABLE UNDER THE PROVISIONS OF ITEM 85.

IT SEEMS CLEAR THAT NEITHER THE MINIMUM CHARGE BASIS NAMED IN RULE 120 OF TARIFF 1-B, APPLIED TO THE RATES NAMES IN THE QUOTATION, NOR THAT NAMED IN ITEM 85 OF THE QUOTATION ITSELF WOULD HAVE PROVIDED A MINIMUM CHARGE BASIS THAT WOULD AFFORD THE CARRIER GREATER REVENUE THAN MOST OF THE CHARGES PRODUCED ON AN ACTUAL WEIGHT OR MINIMUM WEIGHT BASIS AND THE RATES NAMED IN THE QUOTATION.

WE BELIEVE, THEREFORE, THAT WE ARE JUSTIFIED IN CONCLUDING THAT THE WORDS "NO FURTHER APPLICATION" SIGNIFIED THAT THE EXCLUSIVE USE MINIMUM CHARGE BASIS NO LONGER APPLIED BECAUSE, IN MOST CASES, THE ACTUAL WEIGHT OR THE MINIMUM WEIGHT NAMED IN CONNECTION WITH THE APPLICABLE RATE PRODUCED AT LEAST THE MINIMUM CHARGES NAMED IN THE WELLS CARGO TARIFF OR FORMER ITEM 85 OF THE QUOTATION. IN THIS CONNECTION WE OBSERVE THAT A CHARGE DOES NOT APPLY FOR EXCLUSIVE USE IN ALL INSTANCES. IT IS ONLY WHEN THE TRUCKLOAD REVENUE FALLS BELOW A CERTAIN MINIMUM CHARGE BASIS THAT ADHERENCE TO AN EXCLUSIVE RULE IS REQUIRED.

IN VIEW OF THE PATENT AMBIGUITY DEVELOPING FROM THE MANNER IN WHICH ITEM 85 WAS CANCELLED EFFECTIVE JUNE 19, 1965, WE FEEL THAT THE LANGUAGE MUST BE CONSTRUED MOST STRONGLY AGAINST THE CARRIERS RESPONSIBLE FOR IT. SEE GREAT NORTHERN RAILWAY V UNITED STATES 178 CT. CL. 226, 246 (1967); UNION PACIFIC RAILROAD V UNITED STATES 287 F. 2D 593, 598 (1961). WE THEREFORE SUSTAIN THE SETTLEMENTS DISALLOWING YOUR CLAIMS FOR ADDITIONAL ALLOWANCES ON THESE 24 ITEMS.

THE LAST GROUP OF SETTLEMENTS FOR CONSIDERATION WERE MADE ON 6 CLAIMS COVERING 4 SHIPMENTS OF EXPLOSIVE BOMBS AND 2 SHIPMENTS OF SOLID PROPELLANT. ALL 6 SHIPMENTS ORIGINATED AT HERLONG, CALIFORNIA, IN MARCH AND SEPTEMBER 1968; THEY WERE DELIVERED TO TRAVIS AIR FORCE BASE AND TO PORT CHICAGO. THE BILLS OF LADING SHOW THAT EXCLUSIVE USE OF VEHICLE AND HAND-TO-HAND SIGNATURE SERVICES WERE REQUESTED FOR THE 4 SHIPMENTS OF BOMBS DELIVERED TO TRAVIS AIR FORCE BASE. THE PAPERS CONCERNING THE TWO SHIPMENTS TO PORT CHICAGO DO NOT SHOW THAT EXCLUSIVE USE SERVICE WAS REQUESTED. ALL 6 BILLS OF LADING WERE MARKED TO SHOW THAT THE SHIPMENTS FULLY LOADED THE VEHICLES IN WHICH THEY WERE TRANSPORTED. YOU BILLED AND COLLECTED CHARGES AT THE RATES PROVIDED IN ITEM 300, PACIFIC COAST TARIFF BUREAU QUOTATION NO. 2, I.C.C. GQ NO. 1, THEN CLAIMED ADDITIONAL CHARGES ON THE GROUNDS THAT ITEM 300 WAS INAPPLICABLE TO INTERSTATE SHIPMENTS AND TO SHIPMENTS ACCORDED EXCLUSIVE USE.

ITEM 300 OF QUOTATION NO. 2 IS PREFACED BY A CIRCLE REFERENCE MARK WHICH MAKES THE RATES THEREIN APPLICABLE ON INTERSTATE TRAFFIC. ITEM 118 OF THE QUOTATION'S RULES AND REGULATIONS, RELATING TO SHIPMENTS REQUIRING SPECIAL SERVICE (EXCLUSIVE USE OF VEHICLE) PROVIDES IN NOTE 4 THEREOF THAT ITS PROVISIONS ARE INAPPLICABLE WHEN THE CARRIER'S EQUIPMENT IS FULLY UTILIZED. INSTEAD, ITEM 135, PRESCRIBING THE VEHICLE CAPACITY MINIMUM CHARGE RULE, APPLIES. SINCE THE BILLS OF LADING COVERING THESE 6 SHIPMENTS ALL SHOW THAT THE VEHICLES USED WERE FULLY LOADED, ITEM 118 IS INAPPLICABLE. AND THE PROVISIONS OF ITEM 135 ARE NOT SUCH AS TO REQUIRE ANY ADJUSTMENT IN THE CHARGES THAT HAVE BEEN PAID TO YOU ON THESE SHIPMENTS. THE SETTLEMENTS BASED ON THOSE CHARGES THEREFORE NEED NO ADJUSTMENT. THE SETTLEMENTS ON THE 50 SHIPMENTS HERE INVOLVED WERE MADE CONSISTENTLY WITH THE CONCLUSIONS WE HAVE REACHED HERE. ACCORDINGLY THEY ARE CORRECT AND MUST BE SUSTAINED.