B-180132, SEP 3, 1974, 54 COMP GEN 167

B-180132: Sep 3, 1974

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TRANSPORTATION - OVERCHARGES - DISPUTED - BURDEN OF PROOF A CARRIER CLAIMING THAT MECHANICAL EQUIPMENT WAS USED IN LOADING OF SHIPMENTS BEARS BURDEN OF PROVING THAT SUCH EQUIPMENT WAS ACTUALLY USED. RAMP USED TO DRIVE FIRE TRUCK ON TO CARRIER'S VEHICLE IS NOT MECHANICAL EQUIPMENT. HAVE BEEN ALLOWED IN FULL SO THAT THE REQUEST FOR REVIEW IS MOOT ON THOSE SHIPMENTS. HAVE A COMMON QUESTION OF TARIFF INTERPRETATION INVOLVING USE OF MECHANICAL EQUIPMENT FOR LOADING OR UNLOADING. TO WHICH WELLS CARGO IS A PARTY. IF TARIFF 7 C IS NOT APPLICABLE. WELLS CARGO CONTENDS THAT BECAUSE MECHANICAL EQUIPMENT WAS USED IN LOADING. TARIFF 1-C IS APPLICABLE. NOTHING IN THE RECORD HERE INDICATES THAT ANY MECHANICAL EQUIPMENT WAS USED IN LOADING.

B-180132, SEP 3, 1974, 54 COMP GEN 167

TRANSPORTATION - OVERCHARGES - DISPUTED - BURDEN OF PROOF A CARRIER CLAIMING THAT MECHANICAL EQUIPMENT WAS USED IN LOADING OF SHIPMENTS BEARS BURDEN OF PROVING THAT SUCH EQUIPMENT WAS ACTUALLY USED. RAMP USED TO DRIVE FIRE TRUCK ON TO CARRIER'S VEHICLE IS NOT MECHANICAL EQUIPMENT. TRANSPORTATION - RATES - TARIFFS - CONSTRUCTION AGAINST CARRIER CONTRADICTION IN TARIFF LANGUAGE PERMITS CONSIDERATION OF PAROL EVIDENCE IN ORDER TO ASCERTAIN INTENDED MEANING. AMBIGUITIES MUST BE RESOLVED AGAINST CARRIER.

IN THE MATTER OF WELLS CARGO, INC., SEPTEMBER 3, 1974:

WELLS CARGO, INC., REQUESTS REVIEW OF THE ACTIONS TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION ON SEVEN SEPARATE CLAIMS. THREE OF WELLS CARGO'S CLAIMS, IDENTIFIED BY GENERAL ACCOUNTING OFFICE NUMBERS TK- 916955, TK-916963, AND TK-923742, HAVE BEEN ALLOWED IN FULL SO THAT THE REQUEST FOR REVIEW IS MOOT ON THOSE SHIPMENTS.

ALL OF THE REMAINING ITEMS, ONE CLAIM NUMBER TK-923726, AND THREE PROTESTS OF OVERCHARGE NOTICES, HAVE A COMMON QUESTION OF TARIFF INTERPRETATION INVOLVING USE OF MECHANICAL EQUIPMENT FOR LOADING OR UNLOADING. GENERALLY, ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 7-C, MF- I.C.C. 186 (TARIFF 7-C), TO WHICH WELLS CARGO IS A PARTY, DOES NOT APPLY FOR A WELLS CARGO SHIPMENT WHICH "REQUIRE THE USE OF MECHANICAL EQUIPMENT FOR LOADING ONTO, OR UNLOADING FROM, CARRIER'S VEHICLE. ..." ITEM 1980, TARIFF 7-C (1ST REVISED PAGE, OCT. 16, 1969). IF TARIFF 7 C IS NOT APPLICABLE, THEN THE RATES IN WELLS CARGO LOCAL FREIGHT TARIFF NO. 1-C, MF -I.C.C. NO. 10 (TARIFF 1-C) DO APPLY. ON THREE OF THE FOUR SHIPMENTS, WELLS CARGO CONTENDS THAT BECAUSE MECHANICAL EQUIPMENT WAS USED IN LOADING, TARIFF 1-C IS APPLICABLE.

THE SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING F-1792414 CONSISTED OF ONE POWER PACK WEIGHING 3,900 POUNDS, MOUNTED ON A TRAILER WITH WHEELS. NOTHING IN THE RECORD HERE INDICATES THAT ANY MECHANICAL EQUIPMENT WAS USED IN LOADING. POWER PACKS ARE SHIPPED ON DOLLIES IN ORDER TO PERMIT HANDLING WITHOUT THE USE OF SPECIAL EQUIPMENT.

THE SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING F-1799870, CLAIM NO. TK-923726, CONSISTED OF ONE FIRE TRUCK WEIGHING 12,400 POUNDS. HEADQUARTERS, WESTERN AREA, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, HAS CONFIRMED THAT THE TRUCK WAS DRIVEN ON AND OFF OF THE CARRIER'S VEHICLE BY GOVERNMENT PERSONNEL BY MEANS OF A RAMP. A RAMP OF THIS TYPE IS NOT SPECIAL EQUIPMENT. UNITED TRANSPORTS INC. V. UNITED STATES, 214 F.SUPP.34 (W.D. OKLA. 1962).

THE SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING F-4333031 CONSISTED OF TWO CARTONS AND ONE BOX OF HOUSEHOLD GOODS WEIGHING A TOTAL OF 3,517 POUNDS. THERE IS NO EVIDENCE SUPPORTING WELLS CARGO'S CONTENTION THAT MECHANICAL LOADING EQUIPMENT WAS USED.

WELLS CARGO SUGGESTS THAT ITEM 1980 OF TARIFF 7-C DOES NOT REQUIRE THE CARRIER TO PRESENT EVIDENCE OF USE OF MECHANICAL EQUIPMENT. HOWEVER, IT IS A GENERAL RULE THAT CARRIERS HAVE THE BURDEN OF ESTABLISHING THE VALIDITY OF THE CHARGES CLAIMED. UNITED STATES V. NEW YORK, N.H. & H. R.R., 355 U.S. 253 (1957). UNSUPPORTED ASSERTIONS THAT SERVICES WERE PERFORMED DO NOT CONSTITUTE PROOF OF PERFORMANCE.

THE SHIPMENT MOVING FROM FALLON, NEVADA, TO ALAMEDA, CALIFORNIA, UNDER GOVERNMENT BILL OF LADING F-5459523 CONSISTED OF ONE LOOSE COOLING MACHINE WEIGHING 12,000 POUNDS WHICH WAS ADMITTEDLY LOADED BY MEANS OF MECHANICAL EQUIPMENT. ON THE THREE PREVIOUS SHIPMENTS, WELLS CARGO ARGUED THAT MECHANICAL LOADING EQUIPMENT WAS USED AND THEREFORE TARIFF 1-C APPLIED. ON THIS SHIPMENT, WELLS CARGO ACKNOWLEDGES THE USE OF MECHANICAL EQUIPMENT BUT CONTENDS THAT TARIFF 1-C DOES NOT APPLY NEVERTHELESS.

RULE NO. 5 OF TARIFF 1-C PROVIDES THAT TARIFF 1-C APPLIES ON SHIPMENTS BETWEEN CALIFORNIA AND NEVADA WHICH CONSIST OF:

COMMODITIES WHICH BECAUSE OF SIZE OR WEIGHT OR OTHER PHYSICAL CHARACTERISTICS, REQUIRE THE USE OF SPECIAL EQUIPMENT, OR LOW-BED EQUIPMENT, FOR THEIR TRANSPORTATION (SEE NOTES 2 AND 3), OR WHICH REQUIRE THE USE OF MECHANICAL EQUIPMENT FOR LOADING ONTO, OR UNLOADING FROM, CARRIER'S VEHICLES, AND COMMODITIES IN BULK, EXCEPT CEMENT, IN TANK, BIN OR HOPPER TYPE VEHICLES.

SECTION 5 OF THE TARIFF CONTAINS A TABLE OF DISTANCE CLASS RATES FOR CLASSES 100 AND LOWER. THE ORIGINAL PAGE 60 OF THE TARIFF PROVIDES THAT THE RATES IN SECTION 5

WILL APPLY ONLY ON SHIPMENTS OF COMMODITIES WHICH BECAUSE OF SIZE OR WEIGHT, OR OTHER PHYSICAL CHARACTERISTICS, REQUIRE THE USE OF SPECIAL EQUIPMENT, OR LOW-BED EQUIPMENT, FOR THEIR TRANSPORTATION.

NO MENTION IS MADE OF SHIPMENTS WHICH REQUIRE THE USE OF MECHANICAL EQUIPMENT FOR LOADING. EXCEPT FOR THIS OMISSION, THE RATES IN SECTION 5 COULD APPROPRIATELY BE APPLIED TO THIS SHIPMENT. NONE OF THE OTHER RATES IN TARIFF 1-C APPLIES. THUS, WHILE RULE NO. 5 INCLUDES SHIPMENTS REQUIRING MECHANICAL EQUIPMENT FOR LOADING WITHIN THE SCOPE OF THE TARIFF, NONE OF THE RATES IN THE TARIFF APPLY.

WHILE THERE IS AN AMBIGUITY IN A TARIFF, PAROL EVIDENCE IS ADMISSIBLE TO EXPLAIN THE AMBIGUITY. 3 A. CORBIN, CONTRACTS SEC. 579 (1960). THE MEANING OF AN INDEFINITE TERM OF A CONTRACT MAY BE MADE CLEAR BY THE LATER ACTION OF ONE PARTY. 1 A. CORBIN, CONTRACTS SEC. 101 (1963). HERE, THERE IS A CLEAR CONTRADICTION IN THE LANGUAGE OF THE TARIFF RATHER THAN A MERE AMBIGUITY.

THIS DIFFICULTY IN THE TARIFF WAS ELIMINATED WHEN THE 1ST REVISED PAGE 60 WAS ISSUED ON DECEMBER 30, 1970. ON THAT REVISED PAGE, THE WORDS "OR WHICH REQUIRE THE USE OF MECHANICAL EQUIPMENT FOR LOADING" WERE ADDED TO THE PORTION OF SECTION QUOTED ABOVE. THE CHANGE IS MARKED BY A SYMBOL INDICATING THAT THE CHANGE IN WORDING DID NOT RESULT IN AN INCREASE OR REDUCTION IN CHARGES.

FROM THIS CHANGE, IT IS REASONABLE TO INFER THAT THE OMISSION OF THE WORDS "OR WHICH REQUIRE THE USE OF MECHANICAL EQUIPMENT FOR LOADING" WAS INADVERTENT. BASED ON THIS INFERENCE PLUS THE WELL-ESTABLISHED RULE THAT AMBIGUITIES ARE TO BE CONSTRUED AGAINST THE CARRIER, WE CONCLUDE THAT THE SECTION 5 RATES WERE APPLICABLE TO THIS SHIPMENT. SEE UNITED STATES V. GREAT NORTHERN RY., 337 F.2D 243, 249 (8TH CIR. 1964).

ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING WELLS CARGO'S CLAIM TK-923726 IS SUSTAINED. THE NOTICES OF OVERCHARGE ARISING OUT OF GOVERNMENT BILL OF LADING NUMBERS F-1792414, F- 4333031, AND F-5459523 ARE ALSO SUSTAINED.