B-129912, FEB. 5, 1957

B-129912, FEB. 5, 1957

TO LEHIGH VALLEY RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, PER FILE 629 GOVT. 137604, FOR REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT (CLAIM NO. TK-581652) DATED NOVEMBER 15, 1955. THE SETTLEMENT DISALLOWED YOUR CLAIM, PER BILL NO. NB- 137604-A, FOR $121 ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE SERVICES PERFORMED IN TRANSPORTING AN AMBULANCE FROM HILL FIELD, UTAH, TO SAMPSON (KANDAIA), NEW YORK, IN FEBRUARY 1951, UNDER BILL OF LADING NO. WX- 8440810.

FOR THIS SERVICE YOU CLAIMED AND WERE PAID $806, COMPUTED ON THE BASIS OF A FIRST CLASS RATE OF $8.06 PER 100 POUNDS AT A MINIMUM WEIGHT OF 10,000 POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER BY OUR OFFICE IT WAS DETERMINED THAT THE CHARGES SHOULD HAVE BEEN COMPUTED ON THE BASIS OF A SECOND-CLASS RATE (85 PERCENT OF FIRST CLASS) OF $6.86 PER 100 POUNDS AT A MINIMUM WEIGHT OF 10,000 POUNDS, AS AUTHORIZED IN ITEM 1275 OF CENTRAL FREIGHT ASSOCIATION TARIFF 545-J AND ITEM 5 1/2-G OF TRUNK LINE TARIFF 107 -C.YOU REFUNDED THE INDICATED OVERPAYMENT OF $120 AND THEN CLAIMED AN ADDITIONAL AMOUNT OF $121 ON YOUR BILL NB 137604-A. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF NOVEMBER 15, 1955, AND YOU REQUEST REVIEW OF THE SETTLEMENT URGING, IN EFFECT, THAT OUR OFFICE HAS MISCONSTRUED THE PROVISIONS OF ITEM 5 1/2-G OF TRUNK LINE TARIFF 107-C.

THE CLASS RATE APPLICABLE TO THE SHIPMENT IN QUESTION IS PUBLISHED IN TRUNK LINE TARIFF NO. 107-C, AND IS GOVERNED BY THE PROVISIONS OF TARIFF ITEM 5 1/2-G. ITEM 5 1/2-G CONTAINS THREE COLUMNS, THE FIRST HEADED "FROM," THE SECOND HEADED "TO," AND THE THIRD HEADED "GOVERNED BY (SEE EXCEPTIONS 1 TO 8 HEREIN).' THE ITEM IS ALSO DIVIDED INTO TERRITORIAL BLOCKS BY HORIZONTAL LINES. THE FIRST COLUMN OF EACH TERRITORIAL BLOCK, HEADED "FROM," LISTS POINTS OF ORIGIN, EITHER BY STATES, STATION NUMBERS, OR BY REFERENCE TO SPECIFIED TARIFF PAGES, AND THE SECOND COLUMN, HEADED ,TO," LISTS POINTS OF DESTINATION IN THE SAME MANNER. THE THIRD COLUMN OF EACH TERRITORIAL BLOCK, HEADED "GOVERNED BY (SEE EXCEPTIONS 1 TO 8 HEREIN)," NAMES THE CLASSIFICATION AND THE EXCEPTIONS THERETO, IF ANY, WHICH GOVERN THE CLASS RATES APPLICABLE ON SHIPMENTS MOVING BETWEEN THE POINTS COVERED BY THE FIRST AND SECOND COLUMNS OF THAT PARTICULAR TERRITORIAL BLOCK. THREE OF THE EIGHT TERRITORIAL BLOCKS IN THIS ITEM CONTAIN REFERENCE TO CERTAIN NUMBERED "EXCEPTIONS.' THESE "EXCEPTIONS," NUMBERED 1 TO 8, INCLUSIVE, ALSO ARE PUBLISHED IN ITEM 5 1/2-G, IMMEDIATELY AFTER THE EIGHT TERRITORIAL BLOCKS. IT SEEMS TO BE YOUR CONTENTION THAT ANY ONE OF THE NUMBERED ,EXCEPTIONS" APPLIES ONLY IN CONNECTION WITH SHIPMENTS MOVING FROM AND TO THE POINTS SHOWN IN THE PARTICULAR TERRITORIAL BLOCK IN WHICH REFERENCE IS MADE TO THAT PARTICULAR EXCEPTION.

THE COLUMN HEADINGS "FROM," "TO," AND "GOVERNED BY (SEE EXCEPTIONS 1 TO 8 HEREIN)," ARE NOT WITHIN THE CONFINES OF ANY OF THE TERRITORIAL BLOCKS, BUT ARE SHOWN AT THE HEADS OF THE COLUMNS WHICH EXTEND THROUGH ALL OF THE BLOCKS. NOTHING HAS BEEN FOUND IN THE TARIFF WHICH EVEN SUGGESTS THAT THE APPLICATION OF THE VARIOUS "EXCEPTIONS 1 TO 8" IS CONFINED TO THE TERRITORIAL BLOCKS WHICH MAKE REFERENCE TO PARTICULAR "EXCEPTIONS.' THE CONTRARY, THE OPPOSITE APPEARS TO BE TRUE. FOR INSTANCE, ONLY EXCEPTIONS 3, 4, 5, 6, AND 8 ARE REFERRED TO IN THE TERRITORIAL BLOCKS, LEAVING EXCEPTIONS 1, 2, AND 7 SUPERFLUOUS AND WITH NO APPLICATION WHATEVER, IF THEIR APPLICATION IS CONTINGENT UPON REFERENCE BEING MADE THERETO IN INDIVIDUAL TERRITORIAL BLOCKS.

EXCEPTION NO. 8, WHICH IS RELIED UPON BY OUR OFFICE IN THIS CASE, IS REFERRED TO IN ONLY THE LAST TWO OF THE EIGHT TERRITORIAL BLOCKS. THIS EXCEPTION (NO. 8) CARRIES ITS OWN TERRITORIAL APPLICATION AND THIS APPLICATION, IN PART, IS INCONSISTENT WITH THAT SHOWN IN THE TERRITORIAL BLOCKS IN WHICH REFERENCE IS MADE TO THIS PARTICULAR EXCEPTION. FOR EXAMPLE, EXCEPTION NO. 8 AUTHORIZES THE APPLICATION OF CERTAIN SPECIFIED CLASSIFICATION EXCEPTION RATINGS ON CARLOAD SHIPMENTS OF PASSENGER AUTOMOBILES MOVING FROM "EASTERN STATIONS" SHOWN ON PAGES 11 TO 98 OF TARIFF 107-C, AS AMENDED, TO COLORADO STATIONS NAMED IN NOTE C, TO CERTAIN "D AND SL" STATIONS, TO STATIONS IN UTAH, AND TO STATIONS IN WYOMING NAMED IN NOTE. C. ALSO, SIMILAR APPLICATION IS AUTHORIZED ON SHIPMENTS OF THE SAME COMMODITY MOVING IN THE REVERSE DIRECTION. MOVEMENTS BETWEEN THE POINTS REFERRED TO ABOVE ARE NOT WITHIN THE TERRITORIAL APPLICATION PROVIDED IN THE TERRITORIAL BLOCKS MAKING REFERENCE TO EXCEPTION NO. 8, BUT ARE WITHIN THE TERRITORIAL APPLICATION OF OTHER TERRITORIAL BLOCKS IN ITEM 5 1/2-G. THUS, THERE SEEMS TO BE NO BASIS FOR CONCLUDING THAT THE "EXCEPTIONS" APPLY ONLY IN CONNECTION WITH THE TERRITORIAL BLOCKS MAKING REFERENCE THERETO SINCE, AT LEAST AS FAR AS EXCEPTIONS NOS. 1, 2, 7, AND PARTS OF NO. 8 ARE CONCERNED, SUCH A CONCLUSION WOULD MEAN THAT THOSE PARTICULAR "EXCEPTIONS" WERE NULLITIES, AND THAT IN THE PUBLISHING THEREOF THE CARRIERS PERFORMED A VAIN ACT.

A CLASSIFICATION RATING OF 85 PERCENT OF THE FIRST-CLASS RATE ON NEW AUTOMOBILES, MOVING IN INTERSTATE COMMERCE, IN CARLOADS, WAS PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION IN DOCKET 28190, DECIDED NOVEMBER 13, 1945, 263 I.C.C. 771, 781. THE INTERSTATE COMMERCE COMMISSION, IN DIAMOND T. MOTOR CAR CO. V. HAWKEYE MOTOR EXP., 48 M.C.C. 213, HELD THAT THE TERM "AUTOMOBILE" IS A GENERIC TERM DESIGNATING ANY VEHICLE DESIGNED FOR ROAD TRAVEL AND CONTAINING ITS SOURCE OF POWER WITHIN ITSELF. THIS CLEARLY INCLUDED AMBULANCES AND, IN THE ABSENCE OF A CLEAR LIMITATION IN THE PERTINENT TARIFF ITEM, THE RATE PROVIDED FOR PASSENGER AUTOMOBILES APPLIES TO THE AMBULANCE HERE INVOLVED.

ACCORDINGLY, AS THE SETTLEMENT IS CONSISTENT WITH WHAT HAS BEEN SAID ABOVE, IT IS SUSTAINED.