B-129357, JAN. 3, 1957

B-129357, JAN. 3, 1957

TO LUPER TRANSPORTATION COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 24, 1956, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR $105.65 ADDITIONAL TRANSPORTATION CHARGES ON TWO SHIPMENTS OF "BOXES, AMMUNITION SHIPPING, NOIBN," WHICH WERE TRANSPORTED FROM THE NAVAL AMMUNITION DEPOT, MCALESTER, OKLAHOMA, TO THE SUNFLOWER ORDNANCE WORKS, DE SOTO, KANSAS, UNDER GOVERNMENT BILLS OF LADING N-15254857, DATED SEPTEMBER 22, 1952, AND N-15254924, DATED OCTOBER 6, 1952, WEIGHING 30,450 AND 22,120 POUNDS, RESPECTIVELY.

FOR THIS SERVICE YOU CLAIMED, ORIGINALLY, AND WERE PAID ON YOUR BILL NO. 921, THE SUMS OF $271.58 AND $196.52, COMPUTED BY THE USE OF A RATE OF 85 CENTS PER HUNDRED POUNDS ON 31,950 AND 23,120 POUNDS, THE GROSS WEIGHTS OF THE TWO SHIPMENTS. IN THE AUDIT OF THE PAYMENT VOUCHER, OUR TRANSPORTATION DIVISION DETERMINED THAT YOU HAD BEEN PAID TRANSPORTATION CHARGES ON THE WEIGHT OF THE DUNNAGE INCLUDED WITH THE SHIPMENTS, WHICH SHOULD HAVE BEEN EXCLUDED IN ACCORDANCE WITH RULE 10 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11, MF-I.C.C. NO. 1, TO WHICH YOUR QUOTATION NO. 140 MADE REFERENCE, AND A NOTICE OF OVERPAYMENT WAS ISSUED IN THE AMOUNT OF $21.25, THE AMOUNT PAID ON THE WEIGHT OF DUNNAGE AT 85 CENTS PER HUNDRED POUNDS. YOU REFUNDED THIS AMOUNT BY YOUR CHECK NO. 4707. THEREAFTER, BY LETTER DATED JUNE 28, 1956, YOU CLAIMED AN ADDITIONAL AMOUNT OF $105.65, CONTENDING THAT THE ADDITIONAL AMOUNT WAS DUE SINCE THE SHIPMENT UNDER BILL OF LADING N 15254857 CONSISTED OF THREE LOADS AND THE SHIPMENT UNDER BILL OF LADING N-15254924 CONSISTED OF TWO LOADS, FOR WHICH QUOTATION 140 PROVIDED A MINIMUM WEIGHT OF 13,000 POUNDS PER LOAD. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE DATED SEPTEMBER 19, 1956. YOU CONTEND IN YOUR REQUEST FOR REVIEW THAT THE 13,000 POUND MINIMUM PROVIDED IN QUOTATION NO. 140 WAS A TRUCKLOAD MINIMUM WEIGHT RATHER THAN A VOLUME MINIMUM WEIGHT, AND YOU REFER TO RULE 13, SECTION 2 (E), OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11.

A VOLUME MINIMUM IS DISTINGUISHED FROM A TRUCKLOAD MINIMUM IN THAT THE VOLUME RATE APPLIES WHEN A SHIPPER TENDERS THE VOLUME MINIMUM WEIGHT OF A COMMODITY FOR TRANSPORTATION AT ONE TIME, EVEN THOUGH IT MAY EXCEED THE CARRYING CAPACITY OF THE LARGEST VEHICLE AVAILABLE AND MUST BE TRANSPORTED IN TWO OR MORE VEHICLES; WHEREAS A TRUCKLOAD MINIMUM IS GENERALLY UNDERSTOOD TO BE THE QUANTITY WHICH A CARRIER CAN TRANSPORT IN A SINGLE VEHICLE. STOVES FROM ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641, 643 (FOOTNOTE); GULF PORTS--- ALABAMA, GEORGIA AND TENNESSEE--- COMMODITY RATES, 10 M.C.C. 106 (FOOTNOTE). QUOTATION NO. 140 SPECIFIES NEITHER VOLUME NOR TRUCKLOAD MINIMUM WEIGHT BUT MERELY PROVIDES,"MINIMUM WEIGHT: 13,000 POUNDS.' HOWEVER, THE QUOTATION DOES STATE THAT THE RATES OR CHARGES ARE SUBJECT TO NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11. RULE 13 OF THIS CLASSIFICATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SEC. 2 (A) A "VOLUME" RATING IS A RATING IN CONNECTION WITH WHICH "VOL., MIN. WT.' IS PROVIDED.

"/E) EXCEPT AS OTHERWISE PROVIDED, A "TRUCKLOAD" RATING IS A RATING IN CONNECTION WITH WHICH ,MIN. WT. FACTOR" IS PROVIDED.

"SEC. 3 (A) VOLUME OR TRUCKLOAD RATINGS OR RATES APPLY ONLY WHEN A VOLUME OR TRUCKLOAD OF FREIGHT IS SHIPPED FROM ONE POINT * * * IN ONE DAY BY ONE SHIPPER, ON ONE BILL OF LADING, FOR DELIVERY TO ONE CONSIGNEE AT ONE DESTINATION. * * *"

IT APPEARS THAT QUOTATION NO. 140 DOES NOT MEET THE REQUIREMENTS OF RULE 13, SINCE NEITHER A VOLUME MINIMUM WEIGHT NOR A MINIMUM WEIGHT FACTOR, AS SUCH, HAS BEEN PROVIDED. MOREOVER, NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 11 CONTAINS A "RATINGS" COLUMN, IN WHICH BOTH "LESS THAN TRUCKLOAD" AND "VOLUME" RATINGS ARE SHOWN AND A "VOL. MIN. WT. LBS;, COLUMN CONTAINING VOLUME MINIMUM WEIGHTS STATED IN POUNDS. TRUCKLOAD RATINGS APPEAR TO BE THE EXCEPTION IN THE CLASSIFICATION AND, WHEN STATED, ARE SPECIFICALLY SHOWN AS SUCH IN THE VOLUME RATINGS COLUMN, AND A CORRESPONDING MINIMUM WEIGHT FACTOR, NOT EXPRESSED IN POUNDS, IS LISTED IN THE VOLUME MINIMUM WEIGHT COLUMN. PROVISION IS MADE IN RULE 34 OF THE CLASSIFICATION FOR THE CONVERSION OF MINIMUM WEIGHT FACTORS TO POUNDS. THEREFORE, IN THE LIGHT OF THE ABOVE CIRCUMSTANCES, IT SEEMS REASONABLE TO CONCLUDE THAT A "MINIMUM WEIGHT" STATED IN POUNDS WOULD REFER TO A VOLUME MINIMUM WEIGHT RATHER THAN TO A TRUCKLOAD MINIMUM WEIGHT. ACCORDINGLY, IN LINE WITH THE RULE THAT AMBIGUOUS INSTRUMENTS ARE TO BE CONSTRUED AGAINST THE MAKER, THE GOVERNMENT IS ENTITLED TO THE MORE FAVORABLE INTERPRETATION, NAMELY, THAT A 13,000 POUND VOLUME MINIMUM WEIGHT WAS INTENDED.

THE SETTLEMENT ACTION TAKEN BY OUR TRANSPORTATION DIVISION IS CONSISTENT WITH THE FOREGOING AND, THEREFORE, IT IS SUSTAINED.