B-152324, APRIL 21, 1964, 43 COMP. GEN. 694

B-152324: Apr 21, 1964

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782 POUNDS MOVING FROM THE STATE OF WASHINGTON WAS NOT THE DESTINATION PRESCRIBED IN ONE OF THE TARIFFS EMPLOYED TO DETERMINE THE LOWEST COMBINATION OF INTERMEDIATE RATES IN THE ABSENCE OF A SINGLE FACTOR THROUGH RATE APPLICABLE OVER THE ROUTE OF MOVEMENT USED DOES NOT PRECLUDE THE APPLICATION OF THE MINIMUM CHARGE RATE BASED ON 1. 1964: REFERENCE IS MADE TO YOUR CLAIM FILED OC-349-61. VIA THIS ROUTE THERE ARE NO JOINT SINGLE FACTOR THROUGH RATES IN EFFECT. YOU WERE ACCORDINGLY REQUESTED TO REFUND THE ADDITIONAL OVERCHARGE OF $740.27. WHICH WAS SUBSEQUENTLY DEDUCTED. WILL BE THE CHARGE FOR 1. 000 POUNDS AT THE ITL OR AQ RATE APPLYING TO THE HIGHEST RATED CLASS A OR B EXPLOSIVE IN THE HIPMENT: EACH OF THE MOTOR CARRIER LINES THAT PARTICIPATED IN THE MOVEMENT TO NEW ORLEANS IS NAMED IN THE LIST OF CARRIERS IN NOTE 1.

B-152324, APRIL 21, 1964, 43 COMP. GEN. 694

TRANSPORTATION - RATES - AGGREGATE OF INTERMEDIATE V. THROUGH DESTINATION RATE THE FACT THAT THE ULTIMATE DESTINATION--- FLORIDA--- OF A SHIPMENT WEIGHING 1,782 POUNDS MOVING FROM THE STATE OF WASHINGTON WAS NOT THE DESTINATION PRESCRIBED IN ONE OF THE TARIFFS EMPLOYED TO DETERMINE THE LOWEST COMBINATION OF INTERMEDIATE RATES IN THE ABSENCE OF A SINGLE FACTOR THROUGH RATE APPLICABLE OVER THE ROUTE OF MOVEMENT USED DOES NOT PRECLUDE THE APPLICATION OF THE MINIMUM CHARGE RATE BASED ON 1,000 POUNDS TO NEW ORLEANS PROVIDED IN THE TARIFF FOR THE COMBINATION OF MOTOR CARRIERS THAT HAD HANDLED THE SHIPMENT, AND THE USE OF A 7,500 POUND MINIMUM WEIGHT TO COMPUTE THE LOWEST COMBINATION OF INTERMEDIATE RATES TO NEW ORLEANS RESULTED IN AN OVERCHARGE TO THE GOVERNMENT, NOTHING IN THE TARIFF INDICATING THE DESTINATION RATE TO NEW ORLEANS REQUIRED A DIFFERENT INTERPRETATION FOR DELIVERY TO A CONSIGNEE THAN FOR DELIVERY TO A TERMINAL FOR CONTINUED MOVEMENT, AND THE INTERPRETATION OF THE WORD "DESTINATION" TO MEAN DESTINATION OF THE RATE FACTOR GOING TO MAKE UP THE THROUGH COMBINATION RATE, VALIDATES THE USE OF THE ACTUAL WEIGHT IN COMPUTING THE CHARGE TO NEW ORLEANS.

TO M.R. AND R. TRUCKING COMPANY, APRIL 21, 1964:

REFERENCE IS MADE TO YOUR CLAIM FILED OC-349-61, IN CONNECTION WITH YOUR BILL NO. 3855-60, CONCERNING OUR SETTLEMENT CERTIFICATE (CLAIM NO. TK- 750302), DATED AUGUST 1, 1963. YOU REQUEST A REVIEW OF THE SETTLEMENT, WHICH DISALLOWED YOUR REQUEST FOR THE REFUND OF $740.27 DEDUCTED FROM MONEYS OTHERWISE DUE BECAUSE OF AN OVERCHARGE OF THAT AMOUNT IN THE PAYMENT OF CHARGES ON A SHIPMENT OF 1,782 POUNDS OF CLASS B EXPLOSIVES TRANSPORTED FROM MCCHORD AIR FORCE BASE, WASHINGTON, TO TYNDALL AIR FORCE BASE, FLORIDA, UNDER BILL OF LADING AF-1377454, DURING AUGUST 1960.

THE SHIPMENT MOVED VIA A ROUTE COMPRISED OF THE CONSOLIDATED FREIGHTWAYS OF DELAWARE; THE NAVAJO FREIGHT LINES; ILLINOIS CALIFORNIA EXPRESS; THE HERRIN TRANSPORTATION COMPANY; COUCH MOTOR LINES AND M.R. AND R. TRUCKING COMPANY. VIA THIS ROUTE THERE ARE NO JOINT SINGLE FACTOR THROUGH RATES IN EFFECT, AND YOU COLLECTED CHARGES OF $1,835.25, BASED ON A COMBINATION OF THE CLASS 150 RATES TO AND FROM NEW ORLEANS, LOUISIANA, APPLIED TO A MINIMUM WEIGHT OF 7,500 POUNDS FOR EACH FACTOR. YOU SUBSEQUENTLY REFUNDED $514.50, REDUCING THE CHARGES FOR THE SERVICE PERFORMED TO $1,320.75, MAKING THE COMBINATION OF RATES TO AND FROM PENSACOLA, FLORIDA, SUBJECT TO THE SAME MINIMUM WEIGHT OF 7,500 POUNDS FOR EACH FACTOR OF THE COMBINATION.

THE DISPUTED AUDIT ACTION FURTHER REDUCED THE APPLICABLE CHARGES TO $580.48, BY APPLYING THE NEW ORLEANS, LOUISIANA, COMBINATION OF RATES AS ORIGINALLY BILLED, BUT REDUCING THE WEIGHT FACTOR ON THE RATE TO NEW ORLEANS FROM 7,500 POUNDS TO THE ACTUAL WEIGHT OF 1,782 POUNDS. YOU WERE ACCORDINGLY REQUESTED TO REFUND THE ADDITIONAL OVERCHARGE OF $740.27, WHICH WAS SUBSEQUENTLY DEDUCTED, PURSUANT TO THE PROVISIONS OF 49 U.S.C. 66.

THE CONTROVERSY CENTERS ON THE WEIGHT FACTOR TO BE USED IN CONNECTION WITH THE RATE TO NEW ORLEANS, WHICH WE SAY SHOULD BE THE ACTUAL WEIGHT OF 1,782 POUNDS, AND WHICH YOU URGE SHOULD BE 7,500 POUNDS. THE SOLUTION TO THE PROBLEM DEPENDS UPON THE INTERPRETATION TO BE PLACED UPON NOTE 1 OF ITEM 932 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANSCONTINENTAL TERRITORIAL DIRECTORY NO. 20-C, MF-I.C.C. NO. 123. NOTE 1 READS:

ON TRAFFIC WHICH MOVES FROM ORIGIN TO DESTINATION VIA ANY ONE OF THE CARRIERS SHOWN BELOW, OR VIA ANY COMBINATION OF CARRIERS SHOWN BELOW, THE MINIMUM CHARGE ON ANY SHIPMENT CONTAINING CLASS A OR B EXPLOSIVES, AS DESCRIBED IN AMERICAN TRUCKING ASSOCIATIONS, INC., AGENT, EXPLOSIVES AND DANGEROUS ARTICLES TARIFF NO. 10, MF-I.C.C. NO. 11, SUPPLEMENTS THERETO OR RE-ISSUES THEREOF, MOVING UNDER RATES NAMED IN TARIFFS MADE SUBJECT TO THIS TARIFF, WILL BE THE CHARGE FOR 1,000 POUNDS AT THE ITL OR AQ RATE APPLYING TO THE HIGHEST RATED CLASS A OR B EXPLOSIVE IN THE HIPMENT:

EACH OF THE MOTOR CARRIER LINES THAT PARTICIPATED IN THE MOVEMENT TO NEW ORLEANS IS NAMED IN THE LIST OF CARRIERS IN NOTE 1.

IT IS YOUR POSITION THAT THE WORD DESTINATION USED IN THE NOTE PRECLUDES THE APPLICATION OF ITS PROVISIONS TO NEW ORLEANS, SINCE YOU SAY THAT NEW ORLEANS IS NOT THE DESTINATION OF THE SHIPMENT. YOU REDUCE THE QUESTION TO THE LITERAL MEANING OF THE WORD "DESTINATION" CITING IN THIS CONNECTION THE DICTIONARY DEFINITION OF THE WORD, AND THE FACT THAT TYNDALL AIR FORCE BASE, FLORIDA, IS THE BILL OF LADING DESTINATION. YOU THEREFORE INSIST THAT THE 7,500 POUND MINIMUM WEIGHT CHARGE BASIS OTHERWISE NAMED IN ITEM 932 MUST BE USED IN THE CASE OF THE RATE APPLYING FROM MCCHORD AIR FORCE BASE, WASHINGTON, TO NEW ORLEANS, LOUISIANA, ALTHOUGH THE ACTUAL ROUTE OF MOVEMENT TO NEW ORLEANS WAS VIA A COMBINATION OF CARRIERS LISTED IN NOTE 1 OF ITEM 932. WE DO NOT BELIEVE THAT SUCH A NARROW CONSTRUCTION OF THE WORD "DESTINATION" IS APPLICABLE OR JUSTIFIED IN THIS INSTANCE.

IT IS APPARENTLY AGREED THAT THERE IS NO JOINT SINGLE-FACTOR THROUGH RATE IN EFFECT FROM MCCHORD AIR FORCE BASE, WASHINGTON, TO TYNDALL AIR FORCE BASE, FLORIDA, VIA THE BILL OF LADING CARRIERS. IN THE ABSENCE OF A JOINT THROUGH RATE APPLICABLE OVER THE ROUTE OF MOVEMENT, THE LOWEST COMBINATION OF INTERMEDIATE RATES IS APPLICABLE. MIDLAND FLOUR MILLING COMPANY V. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, 274 I.C.C. 281, 292 (1949); PARKERSBURG RIG AND REEL CO. V. BALTIMORE AND OHIO RAILROAD CO., 225 I.C.C. 577, 581, 582 (1937).

IN THIS INSTANCE, TWO TARIFFS ARE EMPLOYED TO DETERMINE THE LOWEST THROUGH CHARGES FOR THE SERVICES PERFORMED. THE ROCKY MOUNTAIN MOTOR TARIFF BUREAU TRANSCONTINENTAL DIRECTORY NO. 20-C HAS APPLICATION ONLY TO THAT PORTION OF THE MOVEMENT TO NEW ORLEANS, AND THE TERMS AND PROVISIONS OF ITEM 932 IN THAT TARIFF HAVE APPLICATION ONLY WITHIN THE SCOPE OF THE TARIFF. THERE IS NOTHING IN NOTE 1 OF ITEM 932 THAT REQUIRES TWO DIFFERENT MEANINGS TO BE APPLIED TO THE WORD DESTINATION" AS USED THEREIN. TO APPLY THE MEANING OF THE WORD "DESTINATION" AS YOU URGE RESULTS IN TWO BASES OF CHARGES APPLYING VIA THE SAME CARRIERS FROM MCCHORD AIR FORCE BASE TO NEW ORLEANS ON THE SAME QUANTITY OF FREIGHT, DEPENDENT UPON WHETHER THE SHIPMENT IS DELIVERED TO A CONSIGNEE AT NEW ORLEANS OR IF THE SHIPMENT IS DELIVERED TO THE TERMINAL OF A CONNECTING CARRIER FOR TRANSPORTATION BEYOND NEW ORLEANS.

THE WORDS IN A TARIFF SHOULD BE GIVEN MEANING WHICH MIGHT REASONABLY BE APPLIED BY SHIPPERS TO WHOM THEY ARE ADDRESSED, AND ANY REASONABLE DOUBT AS TO THEIR MEANING SHOULD BE RESOLVED AGAINST THE CARRIER. UNITED STATES V. MISSOURI-KANSAS-TEXAS RAILROAD, 194 F.2D 777, 778 (1952); A. E. WEST PETROLEUM CO. V. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, 108 F.SUPP. 644, AFFIRMED 212 F.2D 812, 816 (1954). IN THIS INSTANCE, ROCKY MOUNTAIN TARIFF NO. 20 HAS NO APPLICATION TO THE BILL OF LADING DESTINATION; IT APPLIES TO THIS MOVEMENT ONLY AS FAR AS NEW ORLEANS, LOUISIANA. THERE IS NOTHING IN THE TARIFF SAYING THAT THE RATES TO NEW ORLEANS APPLY ONLY TO SHIPMENTS DELIVERED TO CONSIGNEES AT THAT POINT. THE MOVEMENT TO NEW ORLEANS WAS ENTIRELY VIA CARRIERS NAMED IN NOTE 1 OF ITEM 932, AND AS FAR AS THE DELIVERING CARRIER AT NEW ORLEANS IS CONCERNED NEW ORLEANS WAS THE DESTINATION WITHIN THE MEANING OF THE WORD AS USED IN NOTE 1 OF ITEM 932. IN SHORT, WE BELIEVE THE WORD "DESTINATION" IN NOTE 1, MEANS THE DESTINATION OF THE RATE FACTOR GOING TO MAKE UP A THROUGH COMBINATION RATE.

A SIMILAR SITUATION CONCERNING THE MEANING OF THE WORD "DESTINATION" HAS BEEN CONSIDERED IN CONNECTION WITH THE CONSTRUCTION OF THE TARIFF RULES IN RAILROAD TARIFFS AUTHORIZING INTERMEDIATE APPLICATION. IN ARMOUR AND COMPANY V. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, 188 F.2D 603 (1951), CERT. DEN. 342 U.S. 860, SHIPMENTS OF FRESH MEATS MOVED FROM KANSAS CITY, MISSOURI, TO NEW YORK CITY, NEW YORK, ON WHICH THROUGH CLASS RATES WERE IN EFFECT. IN THE CONSTRUCTION OF AN AGGREGATE OF INTERMEDIATE RATES, THE SHIPPER SOUGHT TO APPLY TO CHICAGO, ILLINOIS, A RATE NAMED IN THE TARIFF TO EAST DUBUQUE, ILLINOIS, BY VIRTUE OF A TARIFF INTERMEDIATE APPLICATION ITEM WHICH PROVIDED THAT "FROM ANY POINT OF ORIGIN FROM WHICH A COMMODITY RATE ON A GIVEN ARTICLE TO A GIVEN DESTINATION AND VIA A GIVEN ROUTE IS NOT NAMED IN" THE SECTION INVOLVED, CHICAGO, ILLINOIS, WAS INTERMEDIATE TO EAST DUBUQUE, ILLINOIS, VIA CERTAIN ROUTES NAMED IN THE TARIFF. THE CARRIERS ARGUED THAT THIS INTERMEDIATE RULE COULD NOT BE USED BECAUSE NEITHER CHICAGO NOR EAST DUBUQUE WAS THE "DESTINATION" WITHIN THE MEANING OF THE INTERMEDIATE RULE, NEW YORK CITY BEING THE BILL OF LADING DESTINATION. THE SHIPPERS URGED THAT THE WORD "DESTINATION" AS USED IN THE TARIFFS MEANT "NOT DESTINATION OF THE SHIPMENT" BUT RATHER "DESTINATION OF THE RATE.' THE DISTRICT COURT HELD THAT THE MEANING SHOULD BE "DESTINATION OF THE SHIPMENT," AND THAT THE INTERMEDIATE APPLICATION RULE WAS NOT TO BE APPLIED; BUT THE COURT OF APPEALS, RELYING ON EL REY PRODUCTS CO. V. ALTON AND SOUTHERN RAILROAD, 266 I.C.C. 525 (1946), AGREED THAT THE MEANING SHOULD BE "DESTINATION OF THE RATE" (188 F.2D 608). ALTHOUGH THE FACT THAT CHICAGO WAS NOT THE DESTINATION OF THE SHIPMENT DID NOT PRECLUDE THE APPLICATION OF THE INTERMEDIATE RULE, THE COURT FOUND THE ITEM WAS NOT APPLICABLE BECAUSE A RATE WAS NAMED TO CHICAGO IN ANOTHER SECTION OF THE TARIFF, AND BECAUSE THE INTERMEDIATE APPLICATION FULE FURTHER EXPRESSLY PROVIDED THAT IT HAD NO APPLICATION IF THERE WAS A RATE OTHERWISE NAMED TO THE "GIVEN DESTINATION.'

A SIMILAR CONCLUSION WAS REACHED CONCERNING THE MEANING OF THE WORD "DESTINATION" IN THE INTERMEDIATE RULE IN DES MOINES STEEL COMPANY V. ALTON RAILROAD COMPANY, 256 I.C.C. 563, 567 (1943). SEE ALSO, IN THIS CONNECTION, MOORE BROTHERS V. CHICAGO, BURLINGTON AND QUINCY RAILROAD, 210 I.C.C. 95 (1935), WHERE, IN CONSIDERING THE APPLICATION OF RESTRICTED LOCAL RATES AS FACTORS IN AGGREGATE OF INTERMEDIATE RATES, THE COMMISSION SAID, AT PAGE 98:

* * * THE RESTRICTED LOCAL, HOWEVER, STILL RETAINS ITS CHARACTER AS THE LAWFUL CHARGE FOR AN INTERMEDIATE SERVICE AND IS THEREFORE AN INTERMEDIATE RATE. IF BULK SHOULD BE BROKEN AND THE CONTINUITY OF MOVEMENT WHOLLY INTERRUPTED, THE CARRIERS INVOLVED WOULD PERFORM A GREATER SERVICE, AND THE RESTRICTIONS OF THE TARIFF BY THEIR TERMS WOULD NOT APPLY. * * *

IN ADDITION TO OUR CONCLUSION THAT THE WORD "DESTINATION" AS USED IN NOTE 1 OF THE AFORESAID ITEM 932 MEANS "DESTINATION OF THE RATE," THEREBY VALIDATING THE USE OF THE ACTUAL WEIGHT AS A BASIS FOR COMPUTING THE CHARGE TO NEW ORLEANS, IT IS NOTED THAT THERE IS NO APPARENT REASON WHY THE CARRIERS ON THE MOVEMENT TO NEW ORLEANS SHOULD RECEIVE GREATER REVENUE IF THE SHIPMENT IS DELIVERED TO A CONNECTING CARRIER AT THAT POINT THAN THEY WOULD RECEIVE IF THE SHIPMENT IS DELIVERED TO A CONSIGNEE AT NEW ORLEANS.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IN THE SETTLEMENT OF AUGUST 1, 1963, IS SUSTAINED.

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