B-180699, OCT 2, 1974

B-180699, OCT 2, 1974

WHERE IN A SECTION 22 TENDER A CARRIER RETAINS THE POWER OF CANCELLATION, AN ADMINISTRATIVE NOTIFICATION THAT THE TENDER WILL BE CONSIDERED INACTIVE AFTER A CERTAIN DATE UNLESS CANCELLED OR REISSUED CANNOT BE CONSTRUED AS AN EFFECTIVE CANCELLATION.

NATIONAL VAN LINES, INC.:

NATIONAL VAN LINES, INC. REQUESTS REVIEW OF THE ACTIONS OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING TEN CLAIMS, NUMBERS TK- 965200, TK-965236-241, AND TK-970103-105. ALL TEN CLAIMS INVOLVE A COMMON ISSUE OF LAW RELATING TO THE EXPIRATION DATE OF TENDERS ISSUED UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 (1970).

THERE ARE TWO SECTION 22 TENDERS INVOLVED HERE: NATIONAL VAN LINES I.C.C. TENDER NO. 397 COVERING ELECTRONIC EQUIPMENT AND OFFICE FURNTIRE AND EQUIPMENT, AND NATIONAL VAN LINES I.C.C. TENDER NO. 383 COVERING UNCRATED HOUSEHOLD GOODS. TENDER NO. 397 WAS ISSUED JANUARY 20, 1967, AND HAD NO STATED EXPIRATION DATE. TENDER NO. 383 WAS ISSUED ON OCTOBER 28, 1966, AND ALSO HAD NO STATED EXPIRATION DATE. BOTH TENDERS CONTAINED LANGUAGE INDICATING THAT THEY BECAME EFFECTIVE UPON ACCEPTANCE BY THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS) AND CONTAINED THE SAME TERMINATION OR MODIFICATION CLAUSE:

"THIS TENDER MAY BE CANCELLED OR MODIFIED BY THE CARRIERS ON WRITTEN NOTICE OF NOT LESS THAN THIRTY (30) DAYS EXCEPT AS TO SHIPMENTS MADE FROM ORIGINAL POINT OF SHIPMENT (OR PORT OF IMPORTATION, WHERE INVOLVED) BEFORE THE EFFECTIVE DATE OF SUCH NOTICE, AND EXCEPT AS TO ANY ACCRUED RIGHTS AND LIABILITIES OF EITHER PARTY HEREUNDER, AND FURTHER, EXCEPT SUCH CANELLATION OR MODIFICATION MAY BE ACCOMPLISHED UPON SHORTER NOTICE BY MUTUAL AGREEMENT OF THE PARTIES CONCERNED."

IT IS THE CARRIER'S CONTENTION, BASED ON INSTRUCTIONS ISSUED BY MTMTS, THAT THESE TENDERS WERE CANCELLED EFFECTIVE MAY 1, 1970. SINCE ALL OF THE SHIPMENTS IN QUESTION HERE MOVED ON OR AFTER MAY 1, 1970, THE CARRIER ARGUES THAT THE OVERCHARGE NOTICES BASED ON THE TWO CITED TENDERS WERE IMPROPERLY ISSUED AND THAT THE DISALLOWANCES WERE ERRONEOUS.

"INSTRUCTIONS FOR FILING MANUAL UNIFORM TENDERS OF RATES AND/OR CHARGES FOR PERSONAL PROPERTY SHIPMENTS" PREPARED BY THE DIRECTORATE OF PERSONAL PROPERTY OF MTMTS PROVIDES THAT ALL TENDERS FILED AND ACCEPTED BY MTMTS MUST BEAR AN EXPIRATION DATE NOT TO EXCEED THREE YEARS FROM THE ISSUE DATE OF THE TENDER. A SUPPLEMENTAL LETTER, DATED MARCH 11, 1970, FROM MTMTS AND ADDRESSED TO "ALL MTMTS APPROVED PERSONAL PROPERTY CARRIERS" CONTAINS THIS LANGUAGE:

"A REVIEW OF OUR FILES INDICATES THAT CARRIERS FILING MANUAL RATE TENDERS ARE NOT COMPLYING WITH PART I, PARAGRAPH 12 OF REFERENCED MTMTS PROCEDURES, WHICH PROVIDES THAT RATE TENDERS WHICH HAVE BEEN IN EFFECT FOR THREE YEARS FROM THE ISSUE DATE (ITEM 4 OF THE TENDER FORMAT) MUST BE UPDATED BY REISSUE. TENDERS WHICH ARE NOT REISSUED BY THE END OF THREE YEARS WILL BE CONSIDERED INACTIVE AND BE REMOVED FROM TENDER FILES.

"ALL RATE TENDERS ACCEPTED BY MTMTS AND PRESENTLY ON FILE WHICH FALL INTO THE ABOVE CATEGORY WILL BE REMOVED FROM THE MTMTS ACTIVE FILE ON 1 MAY 1970 UNLESS REISSUED OR CANCELLED BY CARRIERS BY 30 APRIL 1970."

INITIALLY, WE NOTE THAT BOTH THE LETTER OF MARCH 11 AND THE INSTRUCTION FOR FILING TENDERS ARE DIRECTED SPECIFICALLY AT PERSONAL PROPERTY CARRIERS AND PERSONAL PROPERTY SHIPMENTS. WHILE MANY HOUSEHOLD GOODS CARRIERS ALSO CARRY ITEMS SUCH AS ELECTRONIC EQUIPMENT WHICH ARE NOT HOUSEHOLD GOODS, TENDERS COVERING ITEMS OTHER THAN PERSONAL PROPERTY OR HOUSEHOLD GOODS ARE NOT AFFECTED. THE MTMTS INSTRUCTIONS CLEARLY ARE LIMITED TO TENDERS COVERING A SPECIFIC TYPE OF COMMODITY AND DO NOT INCLUDE ALL TENDERS OF HOUSEHOLD GOODS CARRIERS.

THEREFORE, THE CARRIER'S ARGUMENT CAN HAVE NO APPLICATION TO THE NINE CLAIMS WHICH INVOLVE TENDER NO. 397 WHICH COVERS ELECTRONIC EQUIPMENT AND OFFICE FURNITURE AND EQUIPMENT. THAT TENDER REMAINED FULLY EFFECTIVE AT ALL RELEVANT TIMES AND THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING THESE NINE CLAIMS IS SUSTAINED.

THE ONE REMAINING CLAIM, AND THE ONLY ONE TO WHICH THE CARRIER'S ARGUMENT CAN APPLY, INVOLVES A SHIPMENT WHICH CONSISTED OF HOUSEHOLD GOODS MOVING UNDER TENDER NO. 383. THIS TENDER COVERS HOUSEHOLD GOODS AND PERSONAL PROPERTY AND WAS WITHIN THE SCOPE OF THE MTMTS INSTRUCTIONS. HOWEVER, WE DO NOT AGREE THAT THESE INSTRUCTIONS COULD CANCEL THE TENDER.

FIRST, THE TERMINATION OR MODIFICATION CLAUSE IN THE TENDER LIMITED THE POWER OF CANCELLATION TO THE CARRIER ALONE. THE TENDER GRANTED NO AUTHORITY TO MTMTS WHICH WOULD PERMIT CANCELLATION ON BEHALF OF THE CARRIER, AND MTMTS HAD NO SUCH AUTHORITY INDEPENDENT OF THE TENDER.

SECOND, THE LETTER OF MARCH 11, 1970, INDICATED THAT TENDERS MORE THAN THREE YEARS OLD WOULD BE REMOVED FROM THE ACTIVE FILE "UNLESS REISSUED OR CANCELLED." WHATEVER WAS MEANT BY "REMOVED FROM THE ACTIVE FILE," IT IS CLEAR THAT IT WAS NOT THE EQUIVALENT OF CANCELLATION, BECAUSE ONLY UNCANCELLED TENDERS WOULD BE REMOVED. NOTIFICATION BY MTMTS OF THIS CHANGE IN ITS INTERNAL TENDER FILING PROCEDURE WAS NOT INTENDED AND COULD NOT BE CONSTRUED TO BE A CANCELLATION OF THE TENDERS IN ITS FILE.

FINALLY, THE CARRIER CANCELLED TENDER NO. 383 AT ITS OWN INITIATIVE IN MARCH 1971. IF THE CARRIER HAD CONSIDERED THAT THE MARCH 11, 1970, LETTER WAS AN EFFECTIVE CANCELLATION OF THE TENDER, THE SUBSEQUENT CANCELLATION WOULD HAVE BEEN SUPERFLUOUS AND UNEXPLAINABLE.

FOR THESE REASONS, THE CARRIER'S ARGUMENT IS REJECTED AND THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING THIS CLAIM IS SUSTAINED.