B-174445, JAN 4, 1972

B-174445, JAN 4, 1972

TRANSPORTATION CHARGES - CONFLICT IN RATES DECISION AFFIRMING SETTLEMENT BY TRANSPORTATION DIVISION WHICH DISALLOWED A CLAIM BY BARTON TRUCK LINE, INC., FOR $293.60 IN ADDITIONAL FREIGHT CHARGES FOR A SHIPMENT OF CLASS A EXPLOSIVES ON WHICH THE GOVERNMENT REQUESTED AND WAS FURNISHED EXCLUSIVE USE OF VEHICLE SERVICE FROM SAN DIEGO, CALIF., TO TOOELE, UTAH. SINCE THIS SHIPMENT MOVED ON A GOVERNMENT BILL OF LADING, IT IS CLEAR FROM ITEM 10 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AGENT, QUOTATION 14-A, I.C.C. -23 THAT THIS QUOTATION CONTAINS THE RATES APPLICABLE TO THIS SHIPMENT UNLESS LOWER RATES ARE PRESCRIBED BY TARIFF. CLAIMANT'S CONTENTION THAT PARAGRAPH 6 OF ITEM 570 OF TARIFF 30-C PRECLUDES USE OF THE QUOTATION RATES FAILS BECAUSE NOTE 1 OF ITEM 5 OF QUOTATION 14-A MAKES THAT PROVISION PARAMOUNT. EVEN IF CLAIMANT'S CONTENTION WERE ACCEPTED, THIS WOULD MERELY CREATE AN AMBIGUITY IN THE QUOTATION WHICH WOULD STILL BE CONSTRUED AGAINST THE WRITER OF THE QUOTATION.

TO BARTON TRUCK LINE, INC.:

WE REFER TO YOUR LETTER DATED FEBRUARY 4, 1971, TO OUR TRANSPORTATION DIVISION, CONCERNING OUR SETTLEMENT CERTIFICATE OF NOVEMBER 12, 1970 (OUR CLAIM NO. TK-902446; YOUR FREIGHT BILL NO. D-183353). YOUR LETTER INDICATES THAT BARTON TRUCK LINE, INC. (BARTON), HAS TAKEN EXCEPTION TO THE FREIGHT RATES USED BY THE TRANSPORTATION DIVISION IN THAT SETTLEMENT. THE SETTLEMENT DISALLOWED YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $293.60 FOR A SHIPMENT OF CLASS A EXPLOSIVES ON WHICH THE GOVERNMENT REQUESTED AND WAS FURNISHED EXCLUSIVE USE OF VEHICLE SERVICE FROM SAN DIEGO, CALIFORNIA, TO TOOELE, UTAH, UNDER GOVERNMENT BILL OF LADING NO. D- 1141268, DATED JANUARY 26, 1968.

WE WILL CONSIDER YOUR LETTER AS A REQUEST FOR REVIEW OF OUR TRANSPORTATION DIVISION'S ACTION ON THE SETTLEMENT; OUR DECISION ALSO WILL APPLY TO THREE SIMILAR SETTLEMENTS WHICH ARE INVOLVED IN THE DISPUTE AND WHICH ARE IDENTIFIED IN THE APPENDIX TO THIS DECISION.

INVOLVED HERE IS THE QUESTION WHETHER TARIFF OR QUOTATION RATES MUST BE USED WITH A PARTICULAR TARIFF PROVISION SETTING FORTH A CHARGE BASIS FOR EXCLUSIVE USE OF VEHICLE SERVICE. THE EXCLUSIVE USE PROVISION IS ITEM 570 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, AGENT, TARIFF 30-C, MF I.C.C. 165 (TARIFF 30-C). THE CHARGE BASIS PART OF THE RULE READS:

"THE CHARGE WILL BE FOR THE ACTUAL WEIGHT OF THE SHIPMENT AT THE RATE APPLICABLE, OR AT THE MINIMUM WEIGHT PROVIDED FOR IN CONNECTION WITH THE APPLICABLE RATE, WHICHEVER IS GREATER, SUBJECT TO A MINIMUM CHARGE FOR THE VEHICLE USED COMPUTED ON A WEIGHT OF 30,000 POUNDS AT THE CLASS 70 RATE IS PROVIDED IN THIS TARIFF."

FOR THE TRANSPORTATION SERVICE REQUESTED AND FURNISHED UNDER GOVERNMENT BILL OF LADING NO. D-1141268, BARTON COLLECTED ON ITS BILL NO. 0399 FREIGHT CHARGES OF $1,947.03 WHICH WERE BASED ON ITEM 570 OF TARIFF 30-C AND ON A RATE AND MINIMUM WEIGHT TAKEN FROM TARIFF 30-C.

IN THE AUDIT OF THE BILL OUR TRANSPORTATION DIVISION DETERMINED THAT LOWER CHARGES OF $1,653.43 WERE APPLICABLE TO THE SHIPMENT. THEY WERE BASED ON ITEM 570 BUT THE RATE AND MINIMUM WEIGHT WERE TAKEN FROM ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AGENT, QUOTATION 14-A, ICC 23 (QUOTATION 14-A).

BOTH THE CHARGES COLLECTED BY BARTON AND THOSE FOUND APPLICABLE BY THE TRANSPORTATION DIVISION INCLUDED A FEE OF $27.03 FOR HAND-TO-HAND SIGNATURE SERVICE WHICH IS NOT IN DISPUTE. AFTER BARTON'S PROTESTS WERE DULY CONSIDERED AND DENIED, THE OVERCHARGE OF $293.60 WAS COLLECTED BY DEDUCTION (49 U.S.C. 66) AND THE CARRIER'S SUBSEQUENT CLAIM FOR THAT AMOUNT WAS DISALLOWED IN THE SETTLEMENT UNDER REVIEW.

BARTON RELIES ON PARAGRAPH 6, ITEM 570, TARIFF 30-C, WHICH WHEN THIS SHIPMENT WAS TRANSPORTED READ:

"(6) WHEN A SHIPMENT IS TENDERED FOR TRANSPORTATION UNDER THE PROVISIONS OF THIS ITEM, THE CHARGES PROVIDED FOR IN THIS TARIFF TAKE PRECEDENCE OVER ANY OTHER LESSER CHARGES COMPUTED BY THE USE OF LTL, AQ, TRUCKLOAD OR VOLUME RATES WHICH WOULD OTHERWISE BE APPLICABLE."

BARTON ARGUES THAT THE APPLICABLE RATE AND MINIMUM WEIGHT ARE TO BE FOUND IN TARIFF 30-C AND THAT PARAGRAPH 6 OF ITEM 570 PRECLUDES THE GOVERNMENT'S USE OF THE LOWER RATE AND MINIMUM WEIGHT TAKEN FROM QUOTATION 14-A.

QUOTATION 14-A PROVIDES IN ITEM 10 THAT:

"THE RATES NAMED IN THIS QUOTATION ARE PUBLISHED UNDER AUTHORITY OF SECTIONS 22 AND 217 OF THE INTERSTATE COMMERCE ACT AND ARE APPLICABLE ONLY UPON SHIPMENTS MOVING (1) ON GOVERNMENT BILLS OF LADING *** ."

SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, MADE APPLICABLE TO MOTOR CARRIERS BY SECTION 217 OF THE ACT, 49 U.S.C. 317, PROVIDES THAT NOTHING IN THE ACT "SHALL PREVENT THE CARRIAGE, STORAGE, OR HANDLING OF PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES *** ."

ITEM 5 OF QUOTATION 14-A READS IN PART:

"GOVERNING TARIFFS

EXCEPT AS OTHERWISE PROVIDED, THIS QUOTATION IS GOVERNED BY ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AGENT, TARIFFS MF-ICC NOS ... 165, TO THE EXTENT THE INDIVIDUAL TARIFFS HAVE TERRITORIAL APPLICATION TO THE RESPECTIVE MOVEMENT.

"EXCEPTION: EXCEPT AS OTHERWISE PROVIDED FOR INDIVIDUAL RATES AND/OR ITEMS IN THIS QUOTATION SHIPMENTS MOVING UNDER RATES NAMED IN THIS QUOTATION ARE NOT SUBJECT TO PROVISIONS OF THE FOLLOWING TARIFF ITEMS AND RULES:

"ITEMS 237, 273, 390, 510, 555 AND 580 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., AGENT, TARIFF 30-C, MF-ICC 165.

"NOTE 1 - THE RATINGS, RULES AND REGULATIONS, ESTIMATED AND MINIMUM TRUCKLOAD OR VOLUME WEIGHTS, SHIPPING AND PACKING REQUIREMENTS, ALLOWANCES AND PRIVILEGES, OR OTHER PROVISIONS OR CONDITIONS PUBLISHED IN THIS QUOTATION, ABROGATE AND SUPERSEDE THOSE IN THE GOVERNING PUBLICATIONS IN CONFLICT."

THIS SHIPMENT OF CLASS A EXPLOSIVES MOVED ON A GOVERNMENT BILL OF LADING AND UNLESS LOWER RATES ARE AVAILABLE BY TARIFF, IT IS CLEAR FROM ITEM 10 OF QUOTATION 14-A THAT IT CONTAINS THE RATES APPLICABLE TO THIS SHIPMENT. IT IS EQUALLY CLEAR THAT ITEM 5 OF THE QUOTATION INCORPORATES BY REFERENCE ITEM 570 OF TARIFF 30-C (MF-I.C.C. NO. 165), THE EXCLUSIVE USE ITEM, INTO QUOTATION 14-A. SEE C & H TRANSPORTATION CO., INC. V UNITED STATES, 193 CT. CL. 872 (1971). THUS, AND BECAUSE OF THE INCORPORATION BY REFERENCE, THE PHRASES "ACTUAL WEIGHT AT THE RATE APPLICABLE" AND "MINIMUM WEIGHT PROVIDED FOR IN CONNECTION WITH THE APPLICABLE RATE," IN PARAGRAPH (4) OF ITEM 570 MEAN THE RATES AND MINIMUM WEIGHTS IN QUOTATION 14-A.

BARTON'S ARGUMENT THAT PARAGRAPH 6 OF ITEM 570 PRECLUDES THE USE OF THE QUOTATION RATES FAILS BECAUSE IF TRUE IT CONFLICTS WITH NOTE 1 OF ITEM 5 OF QUOTATION 14-A WHICH MAKES PARAMOUNT THE PROVISIONS OF THE QUOTATION. FURTHERMORE, QUOTATION 14-A CONTAINS NO SEPARATE EXCLUSIVE USE OF VEHICLE PROVISION AND IF THE WRITERS OF THE QUOTATION DID NOT INTEND TO PROVIDE FOR THE USE OF TARIFF 30-C'S EXCLUSIVE USE PROVISION, THEY COULD HAVE ADDED ITEM 570 TO THE LIST OF EXCEPTIONS TO THE GOVERNING TARIFFS IN ITEM 5 OF QUOTATION 30-C. IN ANY EVENT, BECAUSE TARIFF 30-C IS INCORPORATED BY REFERENCE INTO THE QUOTATION, BARTON'S POSITION ON THE MEANING OF PARAGRAPH 6 OF ITEM 570 OF TARIFF 30-C CREATES AN AMBIGUITY IN THE QUOTATION; AND IN CONSTRUING DOCUMENTS LIKE SECTION 22 QUOTATIONS, SUCH AMBIGUITIES ARE ALWAYS CONSTRUED AGAINST THE WRITERS OF THE QUOTATION. & H TRANSPORTATION CO. V UNITED STATES, SUPRA; NATIONAL VAN LINES V UNITED STATES, 355 F. 2D 326 (1966). WE NOTE TOO THAT THE WORDS "IN THIS TARIFF" IN ITEM 6 OF ITEM 570, ON WHICH BARTON RELIES IN ITS CONTENTION THAT ONLY RATES IN THAT TARIFF RATHER THAN THE QUOTATION APPLY, WERE CHANGED IN THIRD REVISED PAGE 163, EFFECTIVE NOVEMBER 16, 1968, TO "IN THIS ITEM" WITHOUT ANY INDICATION THAT THE CHANGE RESULTED IN ANY INCREASE OR DECREASE IN THE CHARGES FOR EXCLUSIVE USE SERVICE. WE BELIEVE THAT THIS CHANGE IN WORDING MERELY CLARIFIES THE MEANING OF PARAGRAPH 6 AND THAT THE $4.28 RATE NAMED IN QUOTATION 14-A IS THE APPLICABLE RATE UNDER PARAGRAPH 4 OF ITEM 570.

IN THESE CIRCUMSTANCES THE SETTLEMENT OF NOVEMBER 12, 1970, WHICH DISALLOWED YOUR CLAIM FOR $293.60, AND THE OTHER SETTLEMENTS IDENTIFIED IN THE APPENDIX TO THIS DECISION, ARE AFFIRMED.

APPENDIX

YOUR DATE OF AMOUNT

OUR CLAIM NO. BILL NO. GBL SETTLEMENT DISALLOWED

TK-902447 0399A D-1141267 11/12/70 $293.60

TK-902456 0438A D-1141402 11/12/70 293.60

TK-902457 0428A D-1141403 11/12/70 293.60 ..END :