B-118853, AUG. 6, 1956

B-118853, AUG. 6, 1956

TO MOORE-MCCORMACK LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1956, REQUESTING FURTHER CONSIDERATION OF THE CLAIM ASSERTED AGAINST YOU BY THIS OFFICE FOR SUMS AGGREGATING $1,385.60, REPRESENTING OVERPAYMENTS FOR THE TRANSPORTATION OF VARIOUS SHIPMENTS OF HOUSEHOLD GOODS, ETC., FROM HOBOKEN, NEW JERSEY, TO OSLO, NORWAY, UNDER GOVERNMENT BILLS OF LADING, THE SHIPMENTS INVOLVED HAVING MOVED DURING THE CALENDAR YEAR 1951.

WHILE YOUR LETTER PROTESTS THE ACTION TAKEN BY THE TRANSPORTATION DIVISION OF THIS OFFICE IN STATING EXCEPTIONS TO THE PAYMENTS INVOLVED HEREIN, YOU DO NOT EXPLICITLY SHOW WHEREIN SUCH ACTION WAS IN ERROR. YOUR CONTENTION APPEARS TO BE THAT, NOTWITHSTANDING YOUR FAILURE TO HAVE INCLUDED IN NORTH ATLANTIC BALTIC FREIGHT CONFERENCE TARIFF NO. 8 A PROVISION SIMILAR TO CLAUSE 5 OF REVISION NO. 2 TO CONTRACT NO. MST 41, DATED APRIL 1, 1950, TO THE EFFECT THAT THE TARIFF RATES PRESCRIBED THEREIN SHOULD NOT APPLY TO SHIPMENTS AGGREGATING NOT OVER 100 REVENUE TONS, THE GOVERNMENT IS NOT ENTITLED TO THE BENEFIT OF THE "EMERGENCY RATES" PRESCRIBED IN SUCH TARIFF. ON PAGE TWO OF YOUR LETTER YOU SUGGEST THAT THE PROVISIONS OF YOUR CONTRACT WITH THE MILITARY SEA TRANSPORTATION SERVICE WOULD TAKE PRECEDENCE OVER THE TARIFF, EVEN THOUGH THE TARIFF IS IN ERROR. WITH THIS WE AGREE, BUT IT IS OUR VIEW THAT THE ACTION OF WHICH YOU COMPLAIN IS REQUIRED BY THE CONTRACT.

UNDER THE TERMS OF THE INDICATED CONTRACT YOU AGREED TO TRANSPORT GENERAL CARGO, ETC., FROM EAST COAST PORTS OF THE UNITED STATES TO NORWEGIAN AND DANISH PORTS AT THE RATES PRESCRIBED THEREIN. REVISION NO. 2 THERETO, APPROVED OCTOBER 26, 1950, AND EFFECTIVE AS OF SEPTEMBER 1, 1950, PROVIDED, IN PART, AS FOLLOWS:

"/5) SHIPMENTS AGGREGATING NOT OVER 100 REVENUE TONS LOADED ON ONE SHIP AT ONE PART TO BE BOOKED AT CURRENT APPLICABLE TARIFF RATES.'

ALL OF THE SHIPMENTS HERE INVOLVED APPEAR TO FALL IN THE CATEGORY COVERED BY THE QUOTED PROVISION, AND THE RATES PROPERLY APPLICABLE TO THESE SHIPMENTS ARE THEREFORE THOSE FIXED BY THE PERTINENT TARIFF.

PAGE AA OF NORTH ATLANTIC BALTIC FREIGHT CONFERENCE TARIFF NO. 8, ISSUED MARCH 6, 1951, AS AMENDED JULY 7, 1951, INDICATES THAT THE RATES PUBLISHED ON THAT PAGE, DESIGNATED "EMERGENCY ES," APPLY TO SHIPMENTS OFFERED BY THE MILITARY SEA TRANSPORTATION SERVICE (M.S.T.S.) AND IN CONNECTION WITH THE MUTUAL DEFENSE ASSISTANCE PACT (M.D.A.P.) TO SPECIFIED "BASE PORT," INCLUDING OSLO, NORWAY. WHILE THOSE RATES WERE IDENTICAL WITH THOSE PROVIDED IN CONTRACT NO. MST-41, THE TARIFF AS PUBLISHED DID NOT IN ANY WAY LIMIT OR RESTRICT THEIR APPLICABILITY EITHER TO SHIPMENTS OFFERED UNDER THAT CONTRACT OR TO SHIPMENTS IN EXCESS OF 100 TONS. WE ARE THEREFORE FORCED TO THE CONCLUSION THAT THEY WERE THE "CURRENT APPLICABLE TARIFF RATES" WITHIN THE MEANING OF THAT LANGUAGE AS USED IN REVISION NO. 2 OF THE CONTRACT. YOU STATE THAT THE FILING OF THOSE RATES WAS INTENDED MERELY TO COMPLY WITH THE REQUIREMENTS OF THE NORTH ATLANTIC BALTIC CONFERENCE THAT COPIES OF ALL CONTRACT RATES BE FURNISHED, AND THAT YOUR FAILURE TO INCLUDE THE PROVISIONS OF REVISION NO. 2 WAS AN INADVERTENT OVERSIGHT. THIS ERROR OR OVERSIGHT FURNISHES NO BASIS FOR THE APPLICATION OF RATES OTHER THAN THOSE ACTUALLY INCLUDED IN THE TARIFF AS PUBLISHED.

FOR THE REASONS STATED, IT IS CONCLUDED THAT THE ACTION TAKEN BY THE TRANSPORTATION DIVISION OF THIS OFFICE WAS CORRECT AND THE SAME IS HEREBY SUSTAINED. IT IS REQUESTED THAT YOU TRANSMIT HERE WITHIN THIRTY DAYS YOUR CHECK FOR $1,385.60, MADE PAYABLE TO THE TREASURER OF THE UNITED STATES, OTHERWISE COLLECTION OF THE AMOUNT WILL BE EFFECTED BY SET-OFF FROM AMOUNTS DUE YOUR COMPANY.

WITH RESPECT TO YOUR CLAIMS FOR STEVEDORING SERVICES RENDERED IN CONNECTION WITH THE SHIPMENTS HERE INVOLVED, YOU MAY SUBMIT SUCH CLAIMS, PROPERLY DOCUMENTED, TO THE TRANSPORTATION DIVISION OF THIS OFFICE.