B-182110, JAN 28, 1975

B-182110: Jan 28, 1975

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THE FIRST TWO CLAIMS WERE ALLOWED IN FULL BY SETTLEMENTS DATED NOVEMBER 4. THE PARTIAL DISALLOWANCE OF THE THIRD CLAIM IS SUSTAINED. THE PROPELLER WAS LOADED ON THE CARRIER'S VEHICLE ANGLED ON A SPECIAL JIG SO THAT THE WIDTH OF THE CARGO WAS 12 FEET 2 INCHES. WAS ALLOWED CHARGES FOR 13 FOOT WIDTH. THE CARRIER ARGUES THAT THE SIZE OF THE ARTICLE IS THE SAME REGARDLESS OF THE ANGLE AT WHICH IT IS LOADED ON THE TRUCK. AN AMBIGUITY IS CREATED WHICH MUST BE RESOLVED IN FAVOR OF THE SHIPPER. & H TRANSPORTATION CO. WHILE THE VOLUME OF AN OBJECT IS CONSTANT REGARDLESS OF POSITION. HEIGHT WILL VARY WITH THE PLACEMENT OF THE OBJECT AND THE VIEW OF THE OBSERVER. A BOX WHICH IS 5 FEET HIGH. MOST OBJECTS HAVE SOME STANDARD POSITION.

B-182110, JAN 28, 1975

FOR PURPOSES OF CALCULATING CHARGES FOR OVERWIDTH SHIPMENTS, MEASUREMENT MUST BE TAKEN AFTER LOADING THE SHIPMENT ON THE TRUCK, AND NOT BEFORE.

ULTRA SPECIAL EXPRESS:

ULTRA SPECIAL EXPRESS HAS REQUESTED REVIEW OF THE DISALLOWANCE OF THREE CLAIMS, NUMBERS TK-973396, TK-968371, AND TK-968027. THE FIRST TWO CLAIMS WERE ALLOWED IN FULL BY SETTLEMENTS DATED NOVEMBER 4, 1974, AND SEPTEMBER 30, 1974, RESPECTIVELY. FOR THE REASONS SET OUT BELOW, THE PARTIAL DISALLOWANCE OF THE THIRD CLAIM IS SUSTAINED.

ON SEPTEMBER 13, 1972, THE CARRIER ACCEPTED A SHIP'S PROPELLER 15 FEET IN DIAMETER FOR SHIPMENT FROM GROTON, CONNECTICUT, TO PHILADELPHIA, PENNSYLVANIA, UNDER GOVERNMENT BILL OF LADING NO. H 29624S8. THE PROPELLER WAS LOADED ON THE CARRIER'S VEHICLE ANGLED ON A SPECIAL JIG SO THAT THE WIDTH OF THE CARGO WAS 12 FEET 2 INCHES.

THE CARRIER'S TARIFF (ITEM 1560 OF HEAVY & SPECIALIZED CARRIERS TARIFF 100-E, MF-I.C.C. 26) PROVIDES EXTRA CHARGES FOR SHIPMENTS WHICH EXCEED 8 FEET IN WIDTH, THE MAXIMUM WIDTH ALLOWED ON MOST ROADS WITHOUT SPECIAL PERMITS. THESE CHARGES ACCRUE AT THE SPECIFIED RATE PER FOOT PER MILE. THE CARRIER BILLED OVERWIDTH CHARGES ON THE BASIS OF A 15 FOOT WIDTH, BUT WAS ALLOWED CHARGES FOR 13 FOOT WIDTH, THE CONSTRUCTIVE WIDTH UNDER THE TARIFF FOR A SHIPMENT 12 FEET 2 INCHES WIDE. IN CLAIMING THE $22.80 DIFFERENCE, THE CARRIER ARGUES THAT THE SIZE OF THE ARTICLE IS THE SAME REGARDLESS OF THE ANGLE AT WHICH IT IS LOADED ON THE TRUCK.

ITEM 1560 APPLIES TO "ANY ARTICLE OR SHIPMENT TRANSPORTED ***." IT COULD BE ARGUED THAT THOSE WORDS REFER TO AN ARTICLE OR SHIPMENT READY FOR SHIPMENT AFTER LOADING ON THE CARRIER'S EQUIPMENT. IF NOT SO CONSTRUED, AN AMBIGUITY IS CREATED WHICH MUST BE RESOLVED IN FAVOR OF THE SHIPPER. & H TRANSPORTATION CO. V. UNITED STATES, 436 F.2D 480 (CT. CL. 1971).

WHILE THE VOLUME OF AN OBJECT IS CONSTANT REGARDLESS OF POSITION, THE OBSERVED LENGTH, WIDTH, AND HEIGHT WILL VARY WITH THE PLACEMENT OF THE OBJECT AND THE VIEW OF THE OBSERVER. A BOX WHICH IS 5 FEET HIGH, 3 FEET WIDE, AND 2 FEET LONG CAN BE VIEWED AS 3 FEET HIGH, 2 FEET WIDE, AND 5 FEET LONG DEPENDING ON ITS PLACEMENT. MOST OBJECTS HAVE SOME STANDARD POSITION, BUT IT IS FREQUENTLY NECESSARY TO PLACE ARTICLES BEING TRANSPORTED IN NONSTANDARD ATTITUDES. FOR EXAMPLE, A TELEPHONE POLE WILL MOST ALWAYS BE TRANSFERRED HORIZONTALLY DESPITE ITS VERTICAL POSITIONING WHEN IN USE.

THEREFORE, BECAUSE LENGTH, WIDTH, AND HEIGHT CAN VARY, IT IS NECESSARY TO HAVE SOME FIXED FRAME OF REFERENCE FOR PURPOSES OF MEASUREMENT. THE MOST LOGICAL FRAME OF REFERENCE IS THE TRUCK AFTER THE OBJECT HAS BEEN LOADED. REFERENCE TO THE TRUCK DEFINES ALL THREE DIMENSIONS SIMPLY, UNIFORMLY, UNAMBIGUOUSLY, AND CONSISTENTLY WITH THE RESTRICTIONS ON OVERDIMENSIONAL SHIPMENTS IMPOSED BY HIGHWAY AUTHORITIES. WE BELIEVE THAT THIS IS THE RESULT INTENDED BY THE TARIFF.

ACCORDINGLY, WE FIND THE CARRIER'S CONTENTION WITHOUT MERIT, AND THE PARTIAL DISALLOWANCE OF ITS CLAIM IS SUSTAINED.