B-139907, DEC. 4, 1959

B-139907, DEC. 4, 1959

TO A. B. JAMES FREIGHT LINES:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1959, FILE NO. N-358/58, 352772, RELEVANT TO THE OVERPAYMENT OF $81.60 ASSERTED AGAINST THE FREIGHT CHARGES PAID TO YOUR COMPANY FOR THE TRANSPORTATION OF ONE LOT OF MILITARY IMPEDIMENTS, WEIGHING 18,750 POUNDS, FROM ALEMEDA, CALIFORNIA, TO EL CENTRO, CALIFORNIA, UNDER BILL OF LADING N-22268190, DATED MARCH 7, 1958.

IN DISPUTING THE APPLICATION OF THE THIRD-CLASS RATE OF $1.36 PER HUNDRED POUNDS ON A MINIMUM WEIGHT OF 24,000 POUNDS USED IN DETERMINING THE OVERPAYMENT, YOU REFER TO ITEM 275 (ORIGINAL PAGE 36) OF SOUTHWESTERN MOTOR TARIFF BUREAU U. S. GOVERNMENT QUOTATION 1-B. YOU CONTEND THAT THIS ITEM REMOVED THE APPLICATION OF THE CLASS RATES NAMED IN THE QUOTATION ON RATINGS PUBLISHED IN THE "CURRENT CLASSIFICATION AND CURRENT EXCEPTION SHEET" AND ESTABLISHED A FIFTH-CLASS RATING AT A MINIMUM WEIGHT OF 40,000 POUNDS AS THE ONLY TRUCKLOAD RATING BETWEEN THE POINTS OF SHIPMENT.

GOVERNMENT QUOTATION NO. 1-B, REFERRED TO ABOVE, IS A QUOTATION PUBLISHED IN TARIFF FORM. IT CONSISTS OF THREE SECTIONS WHICH ARE IN ADDITION TO THE TITLE PAGE, TABLE OF CONTENTS, LIST OF PARTICIPATING CARRIERS, AND AN INDEX OF COMMODITIES. SECTION 1 CONTAINS "RULES AND REGULATIONS," SECTION 2 CONTAINS "CLASS RATES," AND SECTION 3 CONTAINS "COMMODITY RATES.' SECTION 2, CONTAINING CLASS RATES, IS SUBJECT TO THE PROVISION THAT:

"IF THE CHARGE ACCRUING UNDER SECTION 3 OF THIS QUOTATION IS LOWER THAN THE CHARGE ACCRUING UNDER THIS SECTION ON THE SAME SHIPMENT BETWEEN THE SAME POINTS, THE CHARGE ACCRUING UNDER SECTION 3 WILL APPLY.'

SECTION 3, CONTAINING COMMODITY RATES, IS SUBJECT TO SEVERAL CONDITIONS NOT PERTINENT HERE, AND ALSO CONTAINS A PROVISION SIMILAR TO THAT QUOTED ABOVE, WHICH AUTHORIZES A SIMILAR ALTERNATION WITH THE CHARGES ACCRUING UNDER SECTION 2. SINCE SECTION 3 OF THE QUOTATION CONTAINS NO COMMODITY RATE APPLICABLE ON MILITARY IMPEDIMENTA, A CLASS RATE IN SECTION 2 APPEARS PROPER FOR APPLICATION ON THE SHIPMENT HERE INVOLVED.

ITEM NO. 105, IN SECTION 1 OF THE QUOTATION, PROVIDES THAT THE QUOTATION SHALL BE GOVERNED BY THE CURRENT WESTERN CLASSIFICATION (RAIL), THE CURRENT EXCEPTION SHEET, AND BY EXCEPTIONS TO THE CLASSIFICATION AND EXCEPTION SHEET SHOWN IN THE QUOTATION IN SECTION 1 OF THE QUOTATION UNDER THE SUBHEADING OF "EXCEPTIONS TO CURRENT CLASSIFICATION AND CURRENT EXCEPTION SHEET," ITEM 275, ON ORIGINAL PAGE 36 OF THE QUOTATION, PROVIDES EXCEPTION RATINGS ON "FREIGHT, ALL KINDS, EXCEPT AMMUNITION, EXPLOSIVES, DANGEROUS ARTICLES OR ARTICLES REQUIRING REFRIGERATION.'

ITEM 275 IS DIVIDED INTO THREE PARTS. THE FIRST PART LISTS VARIOUS POINTS BETWEEN WHICH A CLASS-D RATING AT A 40,00-POUND MINIMUM WEIGHT APPLIES; THE SECOND PART LISTS VARIOUS POINTS BETWEEN WHICH A CLASS-C RATING AT A 40,000-POUND MINIMUM WEIGHT APPLIES; AND THE THIRD PART PROVIDES A CLASS-5 RATING AT A 40,000-POUND MINIMUM WEIGHT TO APPLY "BETWEEN ALL POINTS NOT OTHERWISE PROVIDED FOR ABOVE.'

A CIRCLE REFERENCE ONE IS SHOWN IN CONNECTION WITH THE CLASS-C AND CLASS- D RATINGS IN THE FIRST TWO PARTS OF ITEM 275. THE EXPLANATION OF CIRCLE REFERENCE ONE SHOWS, IN PERTINENT PART, THAT:

"THE PROVISIONS OF THIS ITEM APPLY ONLY IF THE ENTIRE SHIPMENT IS RATED UNDER THE PROVISIONS OF THIS ITEM, IF A LOWER CHARGE RESULTS FROM THE APPLICATION OF OTHER PROVISIONS OF THIS QUOTATION, SAID OTHER PROVISIONS WILL APPLY.'

IT WILL BE NOTED THAT THE EXPLANATION OF CIRCLE REFERENCE ONE DEALS ENTIRELY WITH THE PROVISIONS OF "THIS ITEM," AS A WHOLE, AND NOT WITH ONLY PARTS OF THE "ITEM," EVEN THOUGH THE REFERENCE IS NOT SHOWN IN CONNECTION WITH THE CLASS-5 RATING IN THE THIRD PART OF THE ITEM. THUS, WE MUST DECIDE WHICH OF TWO CONTRADICTORY AND IRRECONCILABLE SITUATIONS--- THE PLACING OF THE CIRCLE REFERENCE ONE ONLY IN CONNECTION WITH THE FIRST TWO PARTS OF ITEM 275, OR THE USE OF THE TERM "THIS ITEM" IN THE EXPLANATION OF THE REFERENCE--- REPRESENTS THE TRUE INTENT AND UNDERSTANDING OF THE PARTIES. IN THIS SITUATION, THE TERM "THIS ITEM," USED AT LEAST FOUR TIMES IN THE EXPLANATION OF THE REFERENCE, SEEMS A MORE RELIABLE GUIDE IN DETERMINING THE INTENT OF THE AUTHOR OF THE QUOTATION THAN THE MERE PLACEMENT OF THE REFERENCE MARK.

SHORTLY AFTER THE SHIPMENT MOVED SECOND REVISED PAGE 36 WAS PUBLISHED, AND ON THAT PAGE THE CIRCLE REFERENCE ONE WAS CHANGED FROM ITS FORMER PLACE IN CONNECTION WITH THE CLASS-C AND CLASS-D RATINGS AND WAS SHOWN IN CONNECTION WITH THE ITEM NUMBER, THUS SHOWING CLEARLY AN INTENT THAT THE CIRCLE REFERENCE ONE PROVISIONS SHOULD APPLY TO ALL PARTS OF THE ITEM. HOWEVER, IN MAKING THE CHANGE IN THE PLACING OF THE REFERENCE SYMBOL, NO "ADVANCE" OR "REDUCTION" SYMBOL WAS SHOWN. THIS SEEMS TO PROVIDE AT LEAST SOME INDICATION THAT THE CHANGE WAS MADE MERELY FOR PURPOSES OF CLARIFICATION, AND THAT THE INTENT OF THE PARTY WHICH DREW THE QUOTATION HAD BEEN FROM THE VERY BEGINNING THAT THE CIRCLE REFERENCE ONE SHOULD APPLY IN CONNECTION WITH ITEM 275 IN ITS ENTIRETY.

THE CONTRADICTIONS IN ITEM 275 ON ORIGINAL PAGE 36 OF THE SUBJECT QUOTATION--- EVEN ON THE BASIS OF THE CONSTRUCTION MOST FAVORABLE TO THE CARRIER--- CREATE A DISTINCT AMBIGUITY IN THE QUOTATION PROVISIONS, AND REQUIRE THAT THE DOCUMENT BE CONSTRUED MOST STRONGLY AGAINST THE PARTY WHO PREPARED IT, IN THIS CASE, THE CARRIER. W. C. SHEPHERD COMPANY V. ROYAL INDEMNITY COMPANY, 192 F.2D 710, 714; SOUTHERN RAILWAY COMPANY V. COCA- COLA BOTTLING COMPANY, 145 F.2D 304, 307; BURRUS MILLS AND ELEVATOR COMPANY V. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, 131 F.2D 532, 534. THEREFORE, IN THE ABSENCE OF A SATISFACTORY SHOWING THAT PRIOR TO THE DATE OF SHIPMENT THE UNDERSTANDING OF BOTH THE CARRIER AND THE SHIPPER WAS TO THE CONTRARY, THE CIRCLE REFERENCE ONE IN ITEM 275 OF THE QUOTATION HERE INVOLVED MUST BE HELD TO HAVE APPLIED EQUALLY TO ALL PARTS OF ITEM 275 FROM ITS INCEPTION.

ACCORDINGLY, THE OVERPAYMENT OF $81.60 SHOULD BE REFUNDED WITHOUT FURTHER DELAY TO OBVIATE THE DEDUCTION OF AN EQUAL AMOUNT FROM OTHER MONIES PAYABLE TO YOUR COMPANY.