B-162278, OCT. 5, 1970

B-162278, OCT. 5, 1970

FREIGHT CHARGE - SURCHARGE REAFFIRMING DECISION OF JULY 23, 1968, HOLDING THAT PAN AMERICAN VAN LINES, INC., HAD BEEN OVERPAID FOR SHIPMENTS OF OFFICE FURNITURE FROM NEW YORK CITY TO FORT GEORGE MEADE, MD., AND THAT THE SHIPMENTS WERE EXCLUSIVE OF THE SURCHARGE.

TO FRANCIS X. MCKENNA:

SUBJECT: PAN AMERICAN VAN LINES, INC. CLAIMS TK-855688 AND TK-855689

IN YOUR LETTER OF MAY 13, 1970, YOU ASK FOR RECONSIDERATION OF OUR DECISION B-162278 DATED JULY 23, 1968, ON BEHALF OF PAN AMERICAN VAN LINES, INC. IN THAT DECISION THE CARRIER WAS ADVISED THAT IT HAS BEEN OVERPAID $17.30 ON EACH OF THE TWO SHIPMENTS OF OFFICE-TYPE FURNITURE INVOLVED AND THAT THE SETTLEMENT CERTIFICATES, WHICH DISALLOWED THE CARRIER'S CLAIM FOR $63 IN EACH CASE, WERE BEING REVISED ACCORDINGLY.

THE PRESENT REQUEST FOR RECONSIDERATION DOES NOT APPEAR TO QUESTION THE BASIS FOR THE REDUCTION (BY $17.30) OF THE LINE-HAUL CHARGE (DETERMINED BY USE OF PAN AMERICAN SECTION 22 TENDER I.C.C. NO. 48, RATHER THAN I.C.C. NO. 36 AS ORIGINALLY BILLED); BUT EXCEPTION IS TAKEN TO THE DENIAL OF A "SURCHARGE" NAMED IN ITEM 200 OF MILITARY RATE TENDER NO. 1-T UNDER THE CAPTION "ADDITIONAL TRANSPORTATION CHARGES." ITEM 200 SHOWS THAT ON ALL SHIPMENTS MOVING 1,000 MILES OR LESS, HAVING AN ORIGIN OR DESTINATION IN, AMONG OTHER PLACES, NEW YORK CITY AND INCLUDING ANY POINT IN ERIE, NASSAU, NIAGARA, SUFFOLK, AND WESTCHESTER COUNTIES, AN ADDITIONAL CHARGE OF 30 CENTS PER 100 POUNDS WILL BE APPLICABLE. THE TWO SHIPMENTS IN QUESTION ORIGINATED AT GOVERNORS ISLAND, NEW YORK, WHICH IS WITHIN THE GEORGRAPHICAL LIMITS OF NEW YORK CITY, AND THEY WERE DELIVERED TO FORT GEORGE G. MEADE, MARYLAND, IN DECEMBER 1965.

PAN AMERICAN TENDER I.C.C. NO. 48, EFFECTIVE NOVEMBER 29, 1965, COVERS OFFICE EQUIPMENT, ELECTRONIC EQUIPMENT, AND INSTITUTIONAL FURNITURE FROM "JERSEY CITY, NEW JERSEY & 10 MILE AREA," TO "LAUREL, MARYLAND & 20 MILE AREA." THE RATE NAMED IN THE TENDER IS $1.73 PER CWT., SUBJECT TO 20,000 POUNDS PER "TRUCK LOAD MINN." IN ITEM 16 OF THE TENDER, REFERENCE IS MADE TO "M&WAA, INC. MRT#1-T & EFFECTIVE SUPPLEMENTS" AS THE DOCUMENT TO BE CONSULTED FOR APPLICABLE ACCESSORIAL SERVICE CHARGES. THE SO-CALLED "SURCHARGE" IS NOT AN ACCESSORIAL SERVICE CHARGE AND TECHNICALLY IS NOT WITHIN THE SCOPE OF THAT TERM AS CONTEMPLATED IN ITEM 16 OF TENDER I.C.C. NO. 48; ITS APPLICABILITY IS LIMITED TO SHIPMENTS MADE FROM AND TO NAMED POINTS AND PLACES, INCLUDING NEW YORK CITY, AND ORDINARILY IS IN ADDITION TO RATES APPLYING GENERALLY FROM AND TO SUCH POINTS.

AS WE SAID IN OUR PREVIOUS DECISION, PAGE 3, TENDER NO. 48 MUST BE CONSTRUED AND APPLIED ACCORDING TO ITS PLAIN TENOR, WHATEVER THE CARRIER'S PRACTICE OR INTENTION MAY HAVE BEEN. TENDER NO. 48 DOES NOT SPECIFICALLY AUTHORIZE THE APPLICATION OF THE SURCHARGE IN DISPUTE. HOWEVER, EVEN IF THE REFERENCE IN ITEM 16 OF TENDER I.C.C. NO. 48 TO MILITARY RATE TENDER NO. 1-T WERE CONSIDERED SUFFICIENT TO REQUIRE APPLICATION OF ALL PROVISIONS IN TENDER NO. 1-T, WHERE APPROPRIATE, TENDER I.C.C. NO. 48 IS SO PHRASED AS TO SIGNIFY THAT JERSEY CITY, NEW JERSEY, IS THE RATE BASING POINT FOR ALL OTHER POINTS OF ORIGIN WITHIN A TEN-MILE RADIUS OF JERSEY CITY. CONSEQUENTLY, THE RATE OFFERED IN TENDER I.C.C. NO. 48, AS TO SHIPMENTS ORIGINATING WITHIN TEN MILES OF JERSEY CITY, WOULD SEEM TO BE OFFERED AS AN EXCEPTION TO THE SURCHARGE PROVISIONS OF THE BASIC TENDER AND THUS THE ONLY LINE-HAUL CHARGES APPLICABLE TO SHIPMENTS ORIGINATING WITHIN TEN MILES OF JERSEY CITY WOULD BE THOSE BASED ON THE SPECIAL RATE OFFERED TO COVER THAT TRAFFIC AND WOULD BE EXCLUSIVE OF THE SURCHARGE.

ITEM 200 OF MILITARY RATE TENDER NO. 1-T DOES NOT INCLUDE ANY POINT IN NEW JERSEY AS BEING SUBJECT TO THE ADDITIONAL TRANSPORTATION CHARGE (SURCHARGE) OF 30 CENTS PER 100 POUNDS. THAT BEING SO, WE WOULD NOT BE JUSTIFIED IN EXPANDING THE MEANING OF TENDER I.C.C. NO. 48 TO INCORPORATE PROVISION FOR THE ADDITION OF 30 CENTS PER 100 POUNDS TO ANY CHARGES COMPUTED ON THE JERSEY CITY RATE BASIS.

IT IS WELL KNOWN THAT THE BUSINESS OF TRANSPORTING HOUSEHOLD GOODS AND RELATED HIGH-REVENUE PRODUCING ARTICLES IS HIGHLY COMPETITIVE AND THE AWARD OF SHIPMENTS TO A PARTICULAR CARRIER MAY BE DECIDED BY DIFFERENCES OF A FEW CENTS BETWEEN PRICES QUOTED BY VARIOUS CARRIERS UNDER THE AUTHORITY OF SECTIONS 22 AND 217(B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22 AND 317(B). AND IT IS POSSIBLE THAT SELECTION OF PAN AMERICAN FOR THE PERFORMANCE OF THE SERVICE REQUIRED FOR THE TWO SHIPMENTS HERE INVOLVED WAS BASED ON THE ASSUMPTION THAT THE SURCHARGE WAS NOT APPLICABLE BECAUSE NO PLACE IN NEW JERSEY WAS LISTED IN ITEM 200 OF TENDER NO. 1-T. WE CANNOT NOW INTERPRET TENDER NO. 48 AS COMPREHENDING THE ADDITION OF A SURCHARGE ON A SHIPMENT SUBJECT TO A JERSEY CITY RATE BASIS EVEN IF THE SHIPMENT ORIGINATES AT A POINT WITHIN THE GEOGRAPHICAL BOUNDARIES OF NEW YORK CITY.

ACCORDINGLY, WE DO NOT BELIEVE THAT THE CONCLUSION REACHED IN THE DECISION OF JULY 23, 1968, IS IN ERROR AND IT IS THEREFORE REAFFIRMED.