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B-160401, AUG. 18, 1967

B-160401 Aug 18, 1967
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MOVEMENT OF SHIPMENTS UNDER ONE FACTOR RATES FROM ORIGIN TO DESTINATION IS NOT DIVISIBLE INTO SEPARATE RATE FACTORS PERTINENT TO THE PARTICULAR CARRIER'S LINE WHEN THE SHIPMENT MOVES UNDER JOINT THROUGH RATES AND. THE HIGHER CHARGE BASED ON CAPACITY LOAD RULE IS NOT APPLICABLE. THE TRANSACTIONS INVOLVED ARE IDENTIFIED AS FOLLOWS: OUR FILE YOUR FILE AMOUNT* T-GAO-603594 14733-0 $ 291.68 TK-825338 8684-E0 547.30 T-GAO-B-9656733 9441-E0 996.80 TK-825339 8975-E0 305.21 TK-815658 8703-E0 252.03 TK-816837 16570-0 540.91 TK-786520 16329-0 502.91 TK-809641 16403-0 1. WAS THE ORIGIN CARRIER AND NAVAJO FREIGHT LINES. WAS THE DESTINATION AND BILLING CARRIER. OUR TRANSPORTATION DIVISION'S LATER AUDIT OF THE PAID CHARGES IS BASED ON A DETERMINATION THAT ITEM 370 IS INAPPLICABLE TO THESE SHIPMENTS AND YOU WERE NOTIFIED OF THE RESULTING OVERCHARGES.

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B-160401, AUG. 18, 1967

TRANSPORTATION - FREIGHT CHARGES - JOINT-THROUGH RATES DECISION TO NAVAJO FREIGHT LINES, INC., DESTINATION CARRIER RE REVIEW OF AUDIT ACTION OF FREIGHT CHARGES FOR SHIPMENTS OF ALUMINUM ARTICLES. MOVEMENT OF SHIPMENTS UNDER ONE FACTOR RATES FROM ORIGIN TO DESTINATION IS NOT DIVISIBLE INTO SEPARATE RATE FACTORS PERTINENT TO THE PARTICULAR CARRIER'S LINE WHEN THE SHIPMENT MOVES UNDER JOINT THROUGH RATES AND, THEREFORE, THE HIGHER CHARGE BASED ON CAPACITY LOAD RULE IS NOT APPLICABLE.

TO MR. O. A. OSBURN:

WE AGAIN REFER TO YOUR LETTER OF NOVEMBER 10, 1966, IN WHICH YOU REQUEST REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN ITS AUDIT OF THE FREIGHT CHARGES COLLECTED BY NAVAJO FREIGHT LINES ON SEVERAL SHIPMENTS OF GOVERNMENT PROPERTY. THE TRANSACTIONS INVOLVED ARE IDENTIFIED AS FOLLOWS:

OUR FILE YOUR FILE AMOUNT*

T-GAO-603594 14733-0 $ 291.68

TK-825338 8684-E0 547.30

T-GAO-B-9656733 9441-E0 996.80

TK-825339 8975-E0 305.21

TK-815658 8703-E0 252.03

TK-816837 16570-0 540.91

TK-786520 16329-0 502.91

TK-809641 16403-0 1,807.06

T-GAO-B-8099205 9067-E0 352.34

T-GAO-B-8100315 9068-E0 845.94

*AS SHOWN BY OUR RECORDS OUR CLAIM FOR $291.68, YOUR FILE 14733-0, HAS BEEN WITHDRAWN.

THE SHIPMENTS CONSISTED OF VARIOUS COMMODITIES AND RANGED IN WEIGHT FROM 5,360 TO 15,659 POUNDS. EACH INCLUDED ITEMS RATABLE AS ALUMINUM ARTICLES AND IN FOUR OF THE SHIPMENTS THE ITEMS SO RATABLE MADE UP OVER ONE-HALF OF THE TOTAL WEIGHT OF THE SHIPMENT. THE SHIPMENTS MOVED ON GOVERNMENT BILLS OF LADING FROM MIDDLE RIVER, MARYLAND, TO WATERTON, COLORADO, BETWEEN AUGUST 22, 1963, AND JUNE 26, 1964. GENERAL EXPRESSWAYS, INC., WAS THE ORIGIN CARRIER AND NAVAJO FREIGHT LINES, INC., WAS THE DESTINATION AND BILLING CARRIER.

FOR THESE TRANSPORTATION SERVICES, NAVAJO ORIGINALLY COLLECTED FREIGHT CHARGES BASED ON THE CAPACITY LOAD RULE PUBLISHED IN ITEM 370 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF NO. 3-E, MF-I.C.C. 144. OUR TRANSPORTATION DIVISION'S LATER AUDIT OF THE PAID CHARGES IS BASED ON A DETERMINATION THAT ITEM 370 IS INAPPLICABLE TO THESE SHIPMENTS AND YOU WERE NOTIFIED OF THE RESULTING OVERCHARGES. AFTER CONSIDERATION OF THE ARGUMENTS IN YOUR LETTERS PROTESTING THE DIVISION'S DETERMINATION, THE OVERCHARGES WERE COLLECTED BY DEDUCTION. BASED ON THE SAME DETERMINATION, YOUR SUBSEQUENT CLAIMS ON SOME OF THE ITEMS HAVE BEEN DISALLOWED.

WE HAVE CAREFULLY REVIEWED THE ARGUMENTS SET FORTH IN YOUR LETTER OF NOVEMBER 10TH, BUT HAVE CONCLUDED THAT ON THE BASIS OF THE PRESENT RECORD WE MUST AGREE WITH OUR TRANSPORTATION DIVISION'S DETERMINATION THAT ITEM 370 OF TARIFF NO. 3-E IS INAPPLICABLE TO THESE SHIPMENTS.

ITEM 370 OF TARIFF NO. 3-E IS A SO-CALLED CAPACITY LOAD RULE. IN IT, AS WELL AS IN THE TARIFF GENERALLY, CARRIERS ARE REFERRED TO BY SYMBOLS, I.E., N180 IS THE SYMBOL FOR NAVAJO AND G575 IS THE SYMBOL FOR GENERAL EXPRESSWAYS. THE ITEM IS HEADED "RATES--MINIMUM CHARGE PER TRUCK FOR CAPACITY LOADS OF FREIGHT (SUBJECT TO NOTE 3).' EFFECTIVE OCTOBER 19, 1962, THIS HEADING WAS AMENDED BY SUBSTITUTING THE WORD "TRAILER" FOR THE WORD "TRUCK" AND BY SUBSTITUTING THE PHRASE ,SUBJECT TO NOTE 4" FOR THE PHRASE "SUBJECT TO NOTE 3.' THE ITEM READS IN PART AS FOLLOWS:

"/WITH CERTAIN EXCEPTIONS NOT HERE INVOLVED), EACH AND EVERY STANDARD TRUCK (LATER TRAILER) BEARING A CAPACITY LOAD OF FREIGHT, SUCH FREIGHT CONSISTING ALL OR PART OF A SINGLE SHIPMENT, WILL BE SUBJECT TO A MINIMUM CHARGE ON ACTUAL WEIGHT OR TRUCKLOAD MINIMUM WEIGHT OR VOLUME MINIMUM WEIGHT WHEN NO TRUCKLOAD MINIMUM WEIGHT IS PROVIDED, WHICHEVER IS GREATER AND AT THE TRUCKLOAD OR VOLUME RATE OR RATING APPLICABLE.

"NOTE 3 (LATER NOTE 4/--/1) THE PROVISIONS OF THIS ITEM APPLY ONLY FOR THE ACCOUNTS OF * * * G575 (THE SYMBOLS OF 16 OTHER CARRIERS ARE ALSO SHOWN) * * *.

(2) WHEN A SHIPMENT MOVES IN A JOINT LINE MOVEMENT VIA TWO OR MORE CARRIERS, THE PROVISIONS OF THIS ITEM SHALL APPLY TO THE THROUGH MOVEMENT WHEN CARRIER N661 (CHANGED ON MAY 4, 1963, TO C3800) PARTICIPATES IN THE JOINT LINE MOVEMENT.' BY THE PROVISIONS OF NOTE 3/1), IT SEEMS CLEAR THAT THE MINIMUM CHARGE APPLIES FOR THE ACCOUNT OF "G575," WHICH IS THE SYMBOL FOR GENERAL EXPRESSWAYS, BUT NOT FOR THE ACCOUNT OF NAVAJO FREIGHT LINES, INC., BECAUSE ITS SYMBOL, N180, IS NOT SHOWN IN THE ITEM. IT IS YOUR VIEW, HOWEVER, THAT THE CAPACITY LOAD RULE APPLIES TO THE JOINT LINE MOVEMENTS HERE INVOLVED BECAUSE THE ORIGIN CARRIER, G575, IS NAMED IN NOTE 3/1) AS ONE OF THE 17 CARRIERS FOR WHOSE ACCOUNT ITEM 370 APPLIES.

THE JOINT THROUGH RATES UNDER WHICH THESE SHIPMENTS MOVED WERE ONE FACTOR RATES FROM ORIGIN TO DESTINATION AND WERE NOT DIVISIBLE INTO SEPARATE RATE FACTORS WITH EACH FACTOR APPLYING OVER THE LINES OF ONE OF THE INDIVIDUAL CARRIERS INVOLVED IN THE MOVEMENT AND PROVIDING A BASIS FOR THE COMPUTATION OF THE PORTION OF THE THROUGH CHARGE ACCRUING TO THAT PARTICULAR CARRIER FOR ITS PROPORTIONATE PART OF ITS ENTIRE SERVICE. THE MINIMUM CHARGE FOR CAPACITY LOAD, APPLICABLE ONLY VIA GENERAL EXPRESSWAYS, INC., CANNOT BE APPLIED TO THE JOINT SINGLE FACTOR THROUGH RATES WITHOUT AFFECTING THE DESTINATION CARRIER BY REQUIRING THE LATTER TO PERFORM ITS SERVICE UNDER A BASIS OTHER THAN THAT NAMED FOR ITS ACCOUNT IN THE REGULARLY PUBLISHED AND FILED TARIFFS. IN COLSOLIDATED SOUTHWESTERN CASES, 211 I.C.C. 601, 623 (1935), THE INTERSTATE COMMERCE COMMISSION STATED THAT IT IS OBVIOUSLY UNJUST THAT ONE CARRIER SHOULD BE GIVEN THE RIGHT TO FIX RATES TO AND FROM POINTS ON THE LINES OF ANOTHER CARRIER WITHOUT THE CONSENT OF THE LATTER. SEE ALSO TRANSIT AND MIXING RULES ON FOOD-STUFFS, 270 I.C.C. 157, 166 (1948); ALLOWANCES ON COTTONSEED AT COLUMBUS AND GREENVILLE RAILWAY POINTS, 238 I.C.C. 309, 316 (1940); HAMILTON BROTHERS COMPANY, INC. V. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, 171 I.C.C. 640, 641 (1931), AND HULL CO. V. SOUTHERN RAILWAY COMPANY, 24 I.C.C. 302, 303 (1912).

IN ADDITION, NOTE 3/2) STATES IN EFFECT THAT ON A SHIPMENT MOVING IN A JOINT LINE MOVEMENT VIA TWO OR MORE CARRIERS, THE MINIMUM CHARGE FOR CAPACITY LOAD WILL APPLY TO THE THROUGH MOVEMENT ONLY WHEN CARRIER C3800 PARTICIPATES IN THE JOINT LINE MOVEMENT. YOU ALLEGE THAT NOTE 3/2) WAS PUBLISHED FOR THE ACCOUNT OF ONLY CARRIER N661, LATER C3800, TO PROTECT THAT CARRIER'S REVENUE ON EASTBOUND TRAFFIC ORIGINATING ON THE LINES OF WESTERN CARRIERS NOT NAMED IN NOTE 3/1), AND THAT, REGARDLESS OF THE PROVISIONS OF NOTE 3/2), ITEM 370 APPLIES ON ANY JOINT LINE MOVEMENT ORIGINATING ON THE LINES OF ANY OF THE CARRIERS NAMED IN NOTE 3/1) BY ITS OWN FORCE. HOWEVER, THIS IS NOT WHAT THE PROVISION STATES. A TARIFF MUST BE CONSTRUED LIKE OTHER DOCUMENTS BY GIVING EFFECT TO ALL PARTS THEREOF, AND EVERY WORD, CLAUSE, AND SENTENCE CONSIDERED IN ARRIVING AT THE MEANING OF ANY PORTION. UPDIKE GRAIN CORP. V. ST. LOUIS AND SAN FRANCISCO RAILWAY CO., 52 F.2D 94 (1931); VAN DUSEN HARRINGTON CO. V. NORTHERN PACIFIC RAILWAY, 32 F.2D 466 (1929); LOUISVILLE WATER CO. V. ILLINOIS CENTRAL RAILROAD CO., 14F.SUPP. 301 (1936). ALSO, TARIFFS ARE SUPPOSED TO BE EXPRESSED IN PLAIN TERMS, AND A SHIPPER WHO CONSULTS THEM HAS A RIGHT TO RELY UPON THEIR OBVIOUS MEANING. SWIFT AND CO. V. UNITED STATES, 255 F. 291 (1918); A.D. COOK INC. V. BALTIMORE AND OHIO R. CO., 241 I.C.C. 681, 683 (1940). WORDS USED IN A TARIFF SHOULD BE GIVEN THEIR GENERALLY ACCEPTED MEANING, STICKELL AND SONS V. PENNSYLVANIA R. CO., 151 I.C.C. 364, 365 (1929); UNITED STATES GYPSUM CO. V. STATEN ISLAND RAPID TRANSIT CO., 151 I.C.C. 641, 642 (1929), AND THE INTENTION OF THE FRAMERS IS NOT CONTROLLING. SPEIR AND CO. V. ATLANTA AND WEST POINT RAILROAD CO., 151 I.C.C. 705, 709 (1929). AN EXPRESSION IN A CONTRACT OF ONE OR MORE THINGS OF A CLASS IMPLIES THE EXCLUSION OF ALL NOT EXPRESSED, ALTHOUGH ALL WOULD HAVE BEEN IMPLIED HAD NONE BEEN EXPRESSED. MANNERS V. MOROSCO, 258 F. 557, 560 (1919); TOWER CORP. V. MORRIS, 153 S.W. 2D 654, 659 (1941). THEREFORE, THE STATEMENT IN NOTE 3/2) THAT THE MINIMUM CHARGE FOR CAPACITY LOAD WILL APPLY ON A SHIPMENT IN A JOINT LINE MOVEMENT WHEN CARRIER C3800 PARTICIPATES IMPLIES THAT THE CHARGE WILL NOT APPLY ON A JOINT LINE MOVEMENT UNDER ANY OTHER CIRCUMSTANCES.

IN THESE CIRCUMSTANCES AND AS STATED ABOVE, WE BELIEVE THAT ITEM 370 OF TARIFF NO. 3-E IS INAPPLICABLE TO THE SHIPMENTS AND THE AUDIT ACTION TAKEN ON THEM BY OUR TRANSPORTATION DIVISION IS SUSTAINED.

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