B-176288, DEC 5, 1972

B-176288: Dec 5, 1972

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THERE IS NO AUTHORITY FOR THE APPLICATION OF TERMINAL CHARGES PUBLISHED IN ITEM 1110 OF SOUTHWESTERN MOTOR FREIGHT BUREAU RULES TARIFF NO. 15 AT THE TIME OF SHIPMENT SINCE THIS PROVISION NEVER BECAME EFFECTIVE. INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 8. YOU BILLED FOR AND WERE PAID CHARGES OF $245.88. ON THE BASIS THAT THERE WAS NO AUTHORITY FOR THE APPLICATION OF TERMINAL CHARGES PUBLISHED IN ITEM 1110 OF SOUTHWESTERN MOTOR FREIGHT BUREAU RULES TARIFF NO. 15 SERIES AT THE TIME OF THE SHIPMENT. THE AMOUNT WAS COLLECTED HERE FROM MONIES OTHERWISE DUE YOU. THE DISALLOWANCE OF YOUR CLAIM FOR RECOVERY OF THESE TERMINAL CHARGES WAS ON THE BASIS THAT THE TARIFF INDICATES THE TERMINAL CHARGE AT NEW ORLEANS IS NOT APPLICABLE AT THE U.S.

B-176288, DEC 5, 1972

TRANSPORTATION - TERMINAL CHARGES DECISION AFFIRMING DENIAL OF THE CLAIM OF RED BALL MOTOR FREIGHT, INC., FOR RECOVERY OF CERTAIN TERMINAL CHARGES ON A SHIPMENT DELIVERED TO THE PORT OF NEW ORLEANS, LA. FOR SHIPMENTS DELIVERED TO THE U.S. ARMY TERMINAL, NEW ORLEANS, LA., THERE IS NO AUTHORITY FOR THE APPLICATION OF TERMINAL CHARGES PUBLISHED IN ITEM 1110 OF SOUTHWESTERN MOTOR FREIGHT BUREAU RULES TARIFF NO. 15 AT THE TIME OF SHIPMENT SINCE THIS PROVISION NEVER BECAME EFFECTIVE. SEE B- 161618, AUGUST 16, 1971.

TO RED BALL MOTOR FREIGHT, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1972, PROTESTING THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION WHICH BY A SETTLEMENT CERTIFICATE DATED MAY 10, 1972, DISALLOWED YOUR CLAIM FOR RECOVERY OF CERTAIN TERMINAL CHARGES ON A SHIPMENT DELIVERED TO THE PORT OF NEW ORLEANS, LOUISIANA.

THE RECORD INDICATES THAT ON FEBRUARY 26, 1970, RED BALL PICKED UP A SHIPMENT OF "FREIGHT ALL KINDS" AT FORT WORTH, TEXAS, AND DELIVERED SAME AT THE GULF OUTPORT (U.S. ARMY TERMINAL), NEW ORLEANS, UNDER GOVERNMENT BILL OF LADING NO. F-1883151. YOU BILLED FOR AND WERE PAID CHARGES OF $245.88, COMPRISED OF $230.85 LINE HAUL TRANSPORTATION CHARGES AND $15.03 PIER DELIVERY OR TERMINAL CHARGES. SUBSEQUENTLY, THE TRANSPORTATION DIVISION ISSUED A "NOTICE OF OVERCHARGE" IN THE AMOUNT OF $15.03, ON THE BASIS THAT THERE WAS NO AUTHORITY FOR THE APPLICATION OF TERMINAL CHARGES PUBLISHED IN ITEM 1110 OF SOUTHWESTERN MOTOR FREIGHT BUREAU RULES TARIFF NO. 15 SERIES AT THE TIME OF THE SHIPMENT. UPON YOUR FAILURE TO REFUND, THE AMOUNT WAS COLLECTED HERE FROM MONIES OTHERWISE DUE YOU. THE DISALLOWANCE OF YOUR CLAIM FOR RECOVERY OF THESE TERMINAL CHARGES WAS ON THE BASIS THAT THE TARIFF INDICATES THE TERMINAL CHARGE AT NEW ORLEANS IS NOT APPLICABLE AT THE U.S. ARMY TERMINAL AND THE OTHER MILITARY INSTALLATIONS.

YOUR LETTER POINTS TO LANGUAGE IN OUR "NOTICE OF OVERCHARGE" WHICH STATES THAT NOTE 1 OF ITEM 1110-C OF TARIFF NO. 15-R DID NOT EVER BECOME EFFECTIVE. IN RESPONSE, YOU POINT OUT THAT THIS NOTE WAS CONTAINED IN ITEM 1110-C OF SUPPLEMENT NO. 11, AND IT SPECIFICALLY NAMED THE U.S. ARMY TERMINAL, NAVAL SUPPLY ACTIVITY, GULF OUTPORTS NAVAL SUPPLY ACTIVITY AND GULF OUTPORTS PANAMA CANAL COMPANY INCLUDED IN THE TERMS "PIERS," "WHARVES," AND "DOCKS." YOU FURTHER STATE THAT ITEM 1110-C WAS SUBSEQUENTLY SUSPENDED IN SUPPLEMENT NO. 14 TO TARIFF NO. 15-R, SEPTEMBER 22, 1969, AND VOLUNTARILY CANCELLED BY THE CARRIERS IN SUPPLEMENT NO. 15, OCTOBER 10, 1969, "AS IT WAS FELT THAT THE ITEM AS ORIGINALLY PUBLISHED COVERED THESE INSTALLATIONS." YOU REQUEST THAT WE REVIEW THIS MATTER AND RENDER A DECISION.

THE QUESTION OF TERMINAL CHARGES ASSESSED ON SHIPMENTS AT THE GULF OUTPORT (U.S. ARMY TERMINAL), NEW ORLEANS WAS CONSIDERED IN B-161618, AUGUST 16, 1971, TO THE STRICKLAND TRANSPORTATION COMPANY. SINCE THE DISCUSSION AND ANALYSIS IN THAT CASE OF THE GENESIS OF ITEM 1110, TARIFF NO. 15 SERIES IS MATERIAL HERE, WE QUOTE THE FOLLOWING FROM THE DECISION:

"*** ITEM 1110, NAMING THE TERMINAL CHARGE OF 11 CENTS PER 100 POUNDS, WAS FIRST EFFECTIVE NOVEMBER 2, 1968, IN SUPPLEMENT NO. 3 TO TARIFF NO. 15 -Q. THIS ITEM STATED IN THE SECOND PARAGRAPH THAT THE TERM 'PIERS' OR 'WHARVES' INCLUDED THE GULF OUTPORTS NAVAL SUPPLY ACTIVITY, GULF OUTPORTS PANAMA CANAL COMPANY AND THE NAVAL SUPPLY ACTIVITY. THE TERMS 'PIERS' AND 'WHARVES' DID NOT INCLUDE AT THAT TIME THE U.S. ARMY TERMINAL. SUPPLEMENT NO. 5 TO THE TARIFF POSTPONED THE EFFECTIVE DATE OF ITEM 1110 TO NOVEMBER 19, 1968.

"ON APRIL 15, 1969, ITEM 1110, HAVING BECOME EFFECTIVE ON NOVEMBER 19, 1968, WAS REISSUED IN TARIFF NO. 15-R. IN THIS ITEM, REFERENCE IS NOT MADE TO THE TERMS 'PIERS' AND 'WHARVES' AS INCLUDING THE THREE MILITARY OR NAVAL INSTALLATIONS. IN OUR VIEW THE DELIBERATE OMISSION OF THE REFERENCE MEANS THAT THE PROVISIONS OF ITEM 1110 NO LONGER APPLIED TO THOSE INSTALLATIONS.

"THAT ITEM 1110, AS IT READ WHEN REISSUED ON APRIL 15, 1969, DID NOT APPLY TO MILITARY INSTALLATIONS, INCLUDING THE U.S. ARMY TERMINAL, IS ESTABLISHED BY THE PUBLICATION OF ITEM 1110-C, EFFECTIVE SEPTEMBER 11, 1969, IN SUPPLEMENT NO. 12 TO TARIFF NO. 15-R. IN THAT ITEM A 'NOTE 1,' PRECEDED BY AN INCREASE REFERENCE MARK, WAS ADDED. NOTE 1 STATES THAT 'PIERS, WHARVES OR DOCKS' AT NEW ORLEANS WILL INCLUDE THE THREE MILITARY INSTALLATIONS FORMERLY NAMED IN ITEM 1110 OF TARIFF NO. 15-Q, PLUS THE U.S. ARMY TERMINAL. THE FACT THAT THIS ITEM IS REFERENCED AS AN INCREASE CLEARLY SHOWS AN INTENTION TO ASSESS THE 11-CENT TERMINAL CHARGE AT THE U.S. ARMY TERMINAL FOR THE FIRST TIME WITH THE EFFECTIVE DATE OF THAT ITEM.

"AS INDICATED, UPON PETITION BY THE DEPARTMENT OF DEFENSE, THE INTERSTATE COMMERCE COMMISSION, IN I. & S. DOCKET NO. M-23351, SUSPENDED THE EFFECTIVE DATE OF ITEM NO. 1110-C, AND SUPPLEMENT NO. 14 TO TARIFF NO. 15- R, POSTPONED THE EFFECTIVE DATE OF THE ITEM UNTIL APRIL 2, 1970."

THE DECISION CONCLUDED THAT SINCE THE PURPOSE OF THE ADDITION OF NOTE 1 TO ITEM 1110-C WAS TO MAKE ITS PROVISIONS SPECIFICALLY APPLICABLE TO THE U.S. ARMY TERMINAL AND THE OTHER NAMED MILITARY OR NAVAL ACTIVITIES, AND SINCE SUPPLEMENT NO. 15 TO TARIFF NO. 15-R, OCTOBER 10, 1969, CANCELLED NOTE 1 AND LEFT ITEM 1110-C AS IT WAS IN EFFECT PRIOR TO SEPTEMBER 11, 1969, THE REMOVAL OF NOTE 1 CLEARLY RESULTED IN THE ELIMINATION OF THE TERMINAL CHARGE IN CONNECTION WITH PROPERTY DELIVERED TO THESE INSTALLATIONS. SINCE NOTE 1 WAS UNDER SUSPENSION UNTIL IT WAS CANCELLED, ITS PROVISIONS NEVER BECAME EFFECTIVE.

ON THE DATE OF RED BALL'S SHIPMENT IN THIS CASE, FEBRUARY 26, 1970, ITEM 1110 OF TARIFF NO. 15-S, MF-I.C.C. 18, WAS IN EFFECT. THIS ITEM DOES NOT SPECIFICALLY REFER TO THE MILITARY AND NAVAL FACILITIES. FURTHERMORE, ITS REFERENCE MARK - A CAPITAL "T" - INDICATES THAT THE ITEM WAS REISSUED FROM SUPPLEMENT NO. 15 TO TARIFF NO. 15-R. AS NOTED ABOVE, THIS CANCELLED NOTE 1 WHICH DEFINED THE TERMS "PIERS," "WHARVES," OR "DOCKS" AS INCLUDING THE U.S. ARMY TERMINAL AND THE OTHER GOVERNMENT INSTALLATIONS. WE CONCLUDE, THEN, THAT AS IN B-161618, AUGUST 16, 1971, THE 11-CENT CHARGE SPECIFIED IN THE ITEM 1110 SERIES WAS NOT APPLICABLE TO THE DELIVERY IN QUESTION HERE UNDER THE PROVISIONS OF THE TARIFF IN EFFECT AT THAT TIME. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

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