B-141031, FEB. 8, 1960

B-141031, FEB. 8, 1960

TO STRICKLAND TRANSPORTATION COMPANY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTERS UNDER FILE STC CLAIM NOS. 8776- 59, ETC., PROTESTING THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION ON THE PAYMENT VOUCHERS COVERING VARIOUS SHIPMENTS OF AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILES, MOVING FROM DEFENSE, TEXAS, TO FORT SILL, OKLAHOMA, ON GOVERNMENT BILLS OF LADING. THE APPLICABLE CHARGES ON THESE SHIPMENTS WERE COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF ITEM 160-G, SUPPLEMENT 21, TO AGENT J. D. HUGHETT'S TARIFF NO. 1000-Q, I.C.C. NO. 3, ENTITLED "RATE QUOTATIONS ON U.S. GOVERNMENT FREIGHT," AND THE CONTROVERSY IN THIS INSTANCE CENTERS ON THE CORRECT INTERPRETATION OF THE WORDING IN THAT ITEM.

YOUR BILL NO. 8070, CLAIM NO. 8776-59, SEEMS TO BE REPRESENTATIVE OF THE SITUATION INVOLVED. INCLUDED IN THIS BILL WERE BILLS OF LADING WY- 9134448, WY-9134449, WY-9134450, AND WY-9134451, COVERING A VOLUME SHIPMENT OF APPROXIMATELY 133,000 POUNDS. THE SHIPMENT MOVED IN FOUR TRUCKS, EACH TRUCK BEING LOADED WITH AN INDICATED WEIGHT OF 33,304 POUNDS. THE BILLS OF LADING WERE EACH PROPERLY CROSS-REFERENCED TO THE FIRST BILL OF LADING AS REQUIRED BY PARAGRAPH (1) OF NOTE 3 OF ITEM 160-C IN ORDER TO OBTAIN THE VOLUME RATE. FOR THE MOVEMENT ON THE FIRST BILL OF LADING, WY-9134448, YOU CHARGED A COLUMN 1 RATE OF $1.13 PER 100 POUNDS AT ACTUAL WEIGHT (33,304 POUNDS); THE SECOND BILL OF LADING,WY-9134449, COVERING PART TWO OF THE SHIPMENTS WAS CHARGED AT A COLUMN RATE OF $1.07 PER 100 POUNDS FOR THE DEFICIT WEIGHT, IN THIS CASE SHOWN AS 6,946 POUNDS, TO MAKE UP 40,000 POUNDS, AND THE BALANCE OF THE WEIGHT ON THAT BILL OF LADING AT A COLUMN 2 RATE OF 86 CENTS. THE CHARGES FOR PARTS 3 AND 4 OF THE SHIPMENT, ON BILLS OF LADING WY 9134450 AND WY-9134451, WERE COMPUTED AT COLUMN 2 RATES OF 86 CENTS AND 91 CENTS, RESPECTIVELY, APPLIED TO THE ACTUAL WEIGHTS.

IN THE AUDIT OF THE PAYMENT VOUCHERS COVERING THESE SHIPMENTS, WE DETERMINED THAT THE CORRECT CHARGES SHOULD BE COMPUTED ON THE BASIS OF A COLUMN 2 RATE OF 86 CENTS PER 100 POUNDS APPLIED TO 33,304 POUNDS ON EACH BILL OF LADING, AND NOTICES OF OVERPAYMENT (U.S. GENERAL ACCOUNTING OFFICE FORMS 1003) WERE ISSUED ACCORDINGLY. YOU CONTEND THAT THE CORRECT INTERPRETATION OF ITEM 160-C REQUIRES APPLICATION OF THE COLUMN 1 RATE ON THE FIRST 40,000 POUNDS OF A VOLUME SHIPMENT, AND THE COLUMN 2 RATE ON THE EXCESS OVER 40,000 POUNDS. ITEM 160-C READS AS FOLLOWS:

TABLE

"AMMUNITION, EXPLOSIVES AND/OR FIREWORKS

COL. 1 - MINIMUM WEIGHT 40,000 POUNDS.

COL. 2 - APPLIES ON WEIGHT IN EXCESS OF 40,000 POUNDS

SHIPPED AT SAME TIME. --------------------------------- ---------------- ------------------------ FROM TO

RATES ---- COL. 1 COL. 2DEFENSE, TEXAS FT. SILL * * * OKLA. (R) 107 (R) 86 (NOTE 3)

"NOTE 3--- VOLUME MINIMUM WEIGHT 60,000 POUNDS, SUBJECT TO MINIMUM OF 30,000 POUNDS ON EACH VEHICLE USED AND TO THE FOLLOWING PROVISIONS:

(1) RATES NAMED IN CONNECTION WITH VOLUME MINIMUM WEIGHTS APPLY ONLY WHEN A VOLUME OF THE COMMODITIES NAMED IS SHIPPED FROM ONE POINT (OR PLACES WITHIN ONE PLANT OR INSTALLATION) IN ONE DAY BY ONE SHIPPER ON ONE BILL OF LADING (OR ON TWO OR MORE BILLS OF LADING EACH CARRYING A CROSS REFERENCE NOTATION TO THE FIRST BILL OF LADING IN EACH SERIES) FOR DELIVERY TO ONE CONSIGNEE AT ONE DESTINATION. SUBJECT TO PARAGRAPH (3) BELOW:

(2) CHARGES ON SHIPMENTS MOVING UNDER RATES NAMED IN CONNECTION WITH VOLUME MINIMUM WEIGHTS WILL BE ASSESSED AT THE VOLUME MINIMUM WEIGHT SHOWN, EXCEPT THAT THE ACTUAL WEIGHT WILL APPLY WHEN IN EXCESS OF THE VOLUME MINIMUM WEIGHTS. SUBJECT TO PARAGRAPH (3) BELOW.

(3) RATES NAMED IN CONNECTION WITH VOLUME MINIMUM WEIGHTS WILL APPLY ON NOT TO EXCEED FOUR (4) TRUCKLOADS TO EACH VOLUME SHIPMENT.'

THE WORDING IN THIS ITEM INDICATES RATHER CLEARLY THAT THE RATE IN COLUMN 2 IS NOT DEPENDENT UPON THE APPLICATION OF THE COLUMN 1 RATE. THE ONLY RESTRICTIONS ON THE USE OF THE COLUMN 2 RATE ARE CONTAINED IN NOTE 3, REQUIRING A VOLUME MINIMUM WEIGHT OF 60,000 POUNDS, WITH A MINIMUM OF 30,000 POUNDS FOR EACH VEHICLE USED AND A MAXIMUM OF FOUR (4) TRUCKLOADS FOR EACH VOLUME SHIPMENT. IN THIS CONNECTION, IT WOULD SEEM THAT IF THERE IS ANY RELATIONSHIP BETWEEN THE COLUMN 1 AND COLUMN 2 RATES, IT WOULD BE FOR CONSIDERATION IN CONNECTION WITH A SHIPMENT WEIGHING MORE THAN 40,000 POUNDS, BUT LESS THAN 60,000 POUNDS. YOUR VIEW, IF GIVEN EFFECT, AS TO THE APPLICATION OF THE COLUMN 1 RATE TO A SHIPMENT WEIGHING MORE THAN 60,000 POUNDS AND OTHERWISE WITHIN THE LIMITATIONS PROVIDED IN NOTE 3, WOULD RESULT IN A PATENT AMBIGUITY, INASMUCH AS NOTE 3 DEFINITELY ASSOCIATES THE COLUMN 2 RATE WITH A 60,000 POUND MINIMUM WEIGHT FOR WHICH THE SHIPPER WOULD HAVE TO PAY IN ORDER TO OBTAIN THE 86-CENT RATE.

IT HAS BEEN A RULE OF LONG STANDING THAT TARIFFS MUST BE EXPRESSED IN CLEAR AND PLAIN TERMS, SO THAT THOSE DEALING WITH THEM, AND GOVERNED BY THEM, MAY UNDERSTAND THEM AND ACT ACCORDINGLY. GENERALLY, IF THEY ARE AMBIGUOUS, AS IN THIS CASE WHERE THE RATE ITEM IS SUSCEPTIBLE TO TWO INTERPRETATIONS, THE SHIPPER MAY CONSTRUE THE ITEM IN A WAY MOST FAVORABLE TO HIMSELF, AS THE TERMS OF THE INSTRUMENT PERMIT. SWIFT V. UNITED STATES, 255 FED. 291. SEE, ALSO, SOUTHERN PACIFIC COMPANY V. LATHROP, 15 F.2D 486; AMERICAN RY. EXPRESS CO. V. PRICE BROS., 54 F.2D 67. THE SAME RULES OF CONSTRUCTION ARE EQUALLY PERTINENT IN THE PRESENT INSTANCE, WHICH INVOLVES A QUOTATION SUBMITTED BY THE CARRIERS UNDER SECTIONS 22 AND 217 (B) OF THE INTERSTATE COMMERCE ACT.

IN VIEW OF THE FOREGOING COMMENTS, THERE APPEARS NO BASIS FOR MODIFICATION OF THE ACTION TAKEN ON THE VOUCHERS IN QUESTION AND THE STATED OVERPAYMENTS SHOULD BE PROMPTLY REFUNDED IN ORDER TO AVOID COLLECTION BY OTHER METHODS.