B-174158, APR 25, 1972, 51 COMP GEN 676

B-174158: Apr 25, 1972

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PRODUCED AN OVERCHARGE WHICH WAS PROPERLY RECOVERED BY SETOFF AS THE CARRIER'S TENDER IS SUBJECT TO THE TARIFF OF THE MOVERS & WAREHOUSEMEN'S ASSOCIATION OF AMERICA. FOR IT IS WHAT THE TENDER IS. NOT WHAT IT SHOULD HAVE BEEN. BOTH CLAIMS INVOLVE THE SAME ISSUE AND WE WILL USE THE ONE DISALLOWED IN CLAIM NO. PAYMENT IN THAT AMOUNT WAS MADE BY THE ARMY FINANCE CENTER IN JANUARY 1970. A NOTICE OF OVERCHARGE (FORM 1003) WAS ISSUED APRIL 21. THE INDICATED AMOUNT WAS RECOVERED BY SETOFF IN PAYMENT OF YOUR BILL NO. 48867 IN JULY 1971. THE DIFFERENCE OF $24.25 IS PRODUCED BY YOUR USE OF A MAXIMUM PACKING AND UNPACKING RATE OF $3 PER HUNDRED POUNDS APPLIED TO THE ACTUAL WEIGHT OF 7. THE MAXIMUM PACKING AND UNPACKING CHARGE IS SET FORTH IN AN APPENDIX TO ITEM 16.

B-174158, APR 25, 1972, 51 COMP GEN 676

TRANSPORTATION - ACCESSORIAL CHARGES - TARIFF INTERPRETATION COMPUTING PACKING AND UNPACKING SERVICES ON A SHIPMENT OF HOUSEHOLD GOODS THAT MOVED UNDER A GOVERNMENT BILL OF LADING ON THE ACTUAL WEIGHT OF THE SHIPMENT, 7,490 POUNDS, AT THE RATE PROVIDED FOR THE 4,000 TO 7,999 POUND RANGE OF THE CARRIER'S APPLICABLE TENDER FOR ACCESSORIAL SERVICES RATHER THAN AT THE LOWER RATE PRESCRIBED FOR 8,000 POUNDS OR MORE, PRODUCED AN OVERCHARGE WHICH WAS PROPERLY RECOVERED BY SETOFF AS THE CARRIER'S TENDER IS SUBJECT TO THE TARIFF OF THE MOVERS & WAREHOUSEMEN'S ASSOCIATION OF AMERICA, INC. TO THE EFFECT THAT THE TOTAL TRANSPORTATION CHARGE OF ANY SHIPMENT SHALL NOT EXCEED THE CHARGE COMPUTED BY USE OF THE LOWEST WEIGHT AND APPLICABLE RATE IN THE NEXT HIGHER WEIGHT BRACKET FOR THE SAME DISTANCE, IF THE CARRIER'S TENDER DOES NOT PROVIDE AN EXCEPTION OR NONE NEED BE IMPLIED TO GIVE EFFECT TO THE TENDER, FOR IT IS WHAT THE TENDER IS, NOT WHAT IT SHOULD HAVE BEEN, THAT CONTROLS.

TO REGENT VAN AND STORAGE, INC., APRIL 25, 1972:

WITH YOUR LETTER OF MARCH 15, 1972, YOU FURNISHED COPIES OF OUR SETTLEMENT CERTIFICATES IN CLAIMS NO. TK-937297 AND NO. TK-937298, BOTH DATED SEPTEMBER 16, 1971, AND RELATED PAPERS. IN EFFECT YOU REQUEST REVIEW OF THE TWO SETTLEMENT CERTIFICATES, WHICH DISALLOWED YOUR CLAIMS PER BILLS RVS NO. 177 AND RVS NO. 156. BOTH CLAIMS INVOLVE THE SAME ISSUE AND WE WILL USE THE ONE DISALLOWED IN CLAIM NO. TK-937297 IN CONSIDERING THE PROPRIETY OF THE SETTLEMENT ACTION TAKEN IN BOTH CASES.

IN YOUR BILL RVS NO. 177, YOU CLAIMED TRANSPORTATION CHARGES OF $655.45 FOR THE TRANSPORTATION OF A SHIPMENT OF HOUSEHOLD GOODS, WEIGHING 7,490 POUNDS, FROM FALLS CHURCH, VIRGINIA, TO CARMEL (PUTMAN), NEW YORK, UNDER GOVERNMENT BILL OF LADING F-3088398, ISSUED IN DECEMBER 1969, AND PAYMENT IN THAT AMOUNT WAS MADE BY THE ARMY FINANCE CENTER IN JANUARY 1970. AS A RESULT OF OUR AUDIT, A NOTICE OF OVERCHARGE (FORM 1003) WAS ISSUED APRIL 21, 1971, REQUESTING THAT YOU REFUND $24.25. WHEN YOU FAILED TO MAKE THE REQUESTED REFUND, THE INDICATED AMOUNT WAS RECOVERED BY SETOFF IN PAYMENT OF YOUR BILL NO. 48867 IN JULY 1971.

THE DIFFERENCE OF $24.25 IS PRODUCED BY YOUR USE OF A MAXIMUM PACKING AND UNPACKING RATE OF $3 PER HUNDRED POUNDS APPLIED TO THE ACTUAL WEIGHT OF 7,490 POUNDS WHEREAS OUR TRANSPORTATION DIVISION USED A RATE OF $2 PER ONE HUNDRED POUNDS APPLIED TO A MINIMUM WEIGHT OF 8,000 POUNDS. THE MAXIMUM PACKING AND UNPACKING CHARGE IS SET FORTH IN AN APPENDIX TO ITEM 16, DESIGNATED "ACCESSORIAL SERVICES," OF YOUR TENDER I.C.C. NO. 1. IN ITEM 16 IT IS STATED "AS PROVIDED IN GRT 1-V MOVERS & WAREHOUSEMEN'S ASSOCIATION OF AMERICA, INC., AND AS SHOWN IN APPENDIX 1, HEREIN."

IN THE TABLE SET FORTH IN THE APPENDIX, FOR DISTANCES OF 500 MILES OR LESS AND FOR WEIGHTS IN THE 4,000-7,999 POUND RANGE, A RATE OF $3 PER ONE HUNDRED POUNDS IS SHOWN; AND FOR THE SAME DISTANCE BRACKET A RATE OF $2 PER ONE HUNDRED POUNDS IS SHOWN FOR WEIGHTS OF 8,000 POUNDS OR MORE. IS YOUR POSITION THAT IN THIS CASE THE ACTUAL WEIGHT, THAT IS, 7,490 POUNDS AS SHOWN ON THE GOVERNMENT BILL OF LADING, DETERMINES WEIGHT RANGE IN THE APPENDIX MUST BE USED.

IN OUR AUDIT AND IN THE PERTINENT SETTLEMENT, IT WAS DETERMINED THAT THE SCALE SHOWN FOR WEIGHTS OF 8,000 POUNDS OR MORE WAS REQUIRED TO BE USED BECAUSE SUCH USE RESULTED IN A LOWER CHARGE FOR A SHIPMENT WEIGHING 7,490 POUNDS. AS OUR TRANSPORTATION DIVISION POINTED OUT, RULE 12 OF MOVERS' & WAREHOUSEMEN'S ASSOCIATION OF AMERICA TARIFF NO. 45, MF-I.C.C. NO. 67, PROVIDES THAT THE TOTAL TRANSPORTATION CHARGE ON ANY SHIPMENT SHALL NOT EXCEED THE CHARGE COMPUTED BY USE OF THE LOWEST WEIGHT AND APPLICABLE RATE IN THE NEXT HIGHER WEIGHT BRACKET FOR THE SAME DISTANCE. MOVERS' & WAREHOUSEMEN'S ASSOCIATION OF AMERICA GRT 1 V, REFERRED TO IN YOUR TENDER, IS SUBJECT TO THE PROVISIONS OF TARIFF NO. 45.

YOU MAINTAIN THAT RULE 12 IS NOT APPLICABLE TO THE PROVISIONS RELATING TO THE MAXIMUM PACKING AND UNPACKING CHARGES, AND YOU SUBMIT A COPY OF A LETTER BY CARROLL GENOVESE, EXECUTIVE SECRETARY OF THE ASSOCIATION, AND ALSO SHOWN AS THE ISSUING AGENT OF TARIFF NO. 45. MR. GENOVESE EXPRESSES THE BELIEF THAT RULE 12 CLEARLY INDICATES THAT THE PROVISION FOR THE ALTERNATION OF CHARGES APPLIES ONLY IN THE CASE OF THE TRANSPORTATION RATE SECTIONS; I.E., THOSE SECTIONS WHEREIN A CROSS REFERENCE IS MADE TO RULE 12. HE POINTS TO THE FACT THAT AT THE TOP OF EACH PAGE OF THE TRANSPORTATION RATE SECTION THE EXPLANATION IS MADE THAT "BREAK POINT INDICATES WEIGHT AT WHICH A LOWER CHARGE DEVELOPS BY USE OF LOWEST WEIGHT AND APPLICABLE RATE IN THE NEXT HIGHER WEIGHT BRACKET. (SEE RULE 12.)," AND HE SAYS THAT NOWHERE ELSE IN THE TARIFF IS THERE ANY CROSS-REFERENCE TO RULE 12 COVERING ALTERNATE CHARGES. HE ALSO SAYS THAT THE ILLUSTRATION SET FORTH IN RULE 12 OF THE TARIFF "ITSELF WOULD SUFFICE IN SHOWING THE APPLICATION OF THE RULE AS IT IS INTENDED IN THE ILLUSTRATION THEREIN."

WE DO NOT AGREE THAT RULE 12 IS LIMITED IN ITS APPLICATION ONLY TO THE RATE TABLES SHOWN IN THE TARIFF, AND WE CONCUR IN THE AUDIT POSITION THAT WITHOUT A SPECIFIC EXCEPTION TO THE ALTERNATE CHARGE RULE IN REGENT VAN AND STORAGE COMPANY RATE TENDER I.C.C. NO. 1, SHIPMENTS ARE SUBJECT TO RULE 12 OF TARIFF NO. 45. THE APPLICATION OF THE PROVISIONS OF RULE 12 IN CONNECTION WITH THE SCALE OF WEIGHTS IN THE APPENDIX TO ITEM 16 OF TENDER I.C.C. NO. 1 WOULD BE CONSISTENT WITH THE GENERAL PRACTICE OBSERVED IN DETERMINING THE APPLICABLE CHARGES IN TARIFF RATE TABLES COVERING VARIOUS KINDS OF SERVICES, INCLUDING STRAIGHT LINEHAUL SERVICES.

THIS COMPUTATION OF APPLICABLE CHARGES IS ALSO CONSISTENT WITH RULE 4(F) OF INTERSTATE COMMERCE COMMISSION TARIFF CIRCULAR MF NO. 3 - FREIGHT, WHICH STATES THAT DIFFERENT RATES BASED ON DIFFERENT MINIMUM QUANTITIES MAY BE PUBLISHED IN TARIFFS, PROVIDED THE LOWEST CHARGE RESULTING FROM ANY SUCH RATE APPLIED IN CONNECTION WITH ITS PUBLISHED MINIMUM (OR ACTUAL QUANTITY SHIPPED, IF GREATER) IS MADE APPLICABLE BY PUBLISHING SUCH RATES IN THE SAME ITEM OR DIFFERENT COLUMNS ON THE SAME PAGE AND "BY PROVIDING IN CONNECTION WITH SUCH ITEMS OR RATE COLUMNS A RULE TO THE EFFECT THAT THE LOWEST CHARGE OBTAINABLE UNDER THE DIFFERENT RATES AND MINIMA APPLICABLE THERETO (OR ACTUAL QUANTITIES, IF GREATER) WILL BE APPLIED."

THE LANGUAGE OF YOUR TENDER NO. 1 IS UNAMBIGUOUS; IT INCORPORATES A REFERENCE TO GRT 1-V, WHICH, IN TURN, IS SUBJECT TO MOVERS' & WAREHOUSEMEN'S ASSOCIATION OF AMERICA TARIFF NO. 45. IT DOES NOT SPECIFICALLY PRECLUDE, AS DO SIMILAR TENDERS OF OTHER CARRIERS, RECOURSE TO UTILIZATION OF A HIGHER MINIMUM WEIGHT WHERE THE ACTUAL WEIGHT EXCEEDS THE SO-CALLED "BREAK POINT." THE INTENTION THUS MANIFESTED IS ALONE THE INTENTION TO WHICH THE LAW GIVES EFFECT. ATLANTIC COAST LINE RAILROAD CO. V. ATLANTA RIDGE CO., 5TH CIR., 1932, 57 F.2D 654. IN THIS CASE YOUR COMPANY AND MR. GENOVESE WOULD RESTRICT THE APPLICATION OF YOUR TENDER BY READING INTO IT THE LANGUAGE OF AN EXCEPTION WHICH IS NEITHER REFERRED TO IN THE TENDER NOR REQUIRED BY NECESSARY IMPLICATION IN ORDER TO GIVE EFFECT TO THE TENDER PROVISIONS. IT IS WHAT THE TENDER IS, 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.

WE BELIEVE THAT THE SETTLEMENTS IN QUESTION GAVE PROPER EFFECT TO THE MAXIMUM PACKING AND UNPACKING PROVISIONS OF YOUR TENDER NO. 1, AND, THEREFORE, THE DISALLOWANCES OF YOUR CLAIMS IN SETTLEMENTS TK-937297 AND TK-937298 ARE SUSTAINED.