B-135988, JUL. 25, 1958

B-135988, JUL. 25, 1958

TO C AND C CLOTHING COMPANY, INC.:

REFERENCE IS MADE TO A LETTER DATED APRIL 15, 1958, FROM SAMUEL F. SCHWAG REQUESTING A REVIEW OF OUR SETTLEMENT DATED MARCH 27, 1958, WHEREIN THERE WAS DISALLOWED $498.01 OF YOUR CLAIM FOR $734.80 ARISING OUT OF CONTRACT NO. DA-36-030-QM-6520, DATED NOVEMBER 15, 1955.

UNDER THE CONTRACT YOU AGREED TO FURNISH TO THE PHILADELPHIA QUARTERMASTER DEPOT 60,000 COATS; MEN-S, WOOL SERGE, ETC., AT $14 EACH, F.O.B. ORIGIN, OR FOR A TOTAL PRICE OF $840,000. BY LETTER DATED JUNE 19, 1956, YOU ADVISED THE CONTRACTING OFFICER OF THE PHILADELPHIA QUARTERMASTER DEPOT THAT YOU HAD BEEN MAKING SHIPMENTS OF THE COATS FROM YOUR PLANT IN PHILADELPHIA TO THE DEPOT ON COMMERCIAL BILLS OF LADING AT YOUR OWN EXPENSE. THE CONTRACT PROVIDED, HOWEVER, THAT F.O.B. ORIGIN SHIPMENTS WOULD BE MADE ON GOVERNMENT BILLS OF LADING TO BE FURNISHED BY THE PHILADELPHIA QUARTERMASTER DEPOT AND, SUBSEQUENTLY, SUCH GOVERNMENT BILLS OF LADING WERE FURNISHED TO YOU FOR MAKING FURTHER SHIPMENTS. YOUR ORIGINAL BILL OF $1,157.72 FOR TRANSPORTATION COSTS ON THE COMMERCIAL BILLS OF LADING SHIPMENTS WAS LATER REDUCED TO A SUBSTANTIATED COST OF $734.80. IN OUR SETTLEMENT DATED MARCH 27, 1958, THERE WAS DISALLOWED $498.01 OF THE $734.80 CLAIMED SINCE IT WAS DETERMINED THAT UNDER APPLICABLE TARIFF RATES THE HUNDREDWEIGHT, RATHER THAN THE PACKAGE RATE BILLED BY YOU, WAS THE PROPER BASIS FOR COMPUTING THE AMOUNT DUE SINCE THE PHILADELPHIA QUARTERMASTER DEPOT WAS NOT CONSIDERED TO BE A TERMINAL.

MR. SCHWAG'S REQUEST FOR REVIEW OF THE SETTLEMENT IS BASED ON HIS CONTENTION THAT THE PHILADELPHIA QUARTERMASTER DEPOT WAS THE DESTINATION AND, THEREFORE, HE CANNOT SEE HOW WE HAVE RULED THAT IT IS NOT A TERMINAL; ALSO, MR. SCHWAG TAKES THE POSITION THAT SINCE THE PENNSYLVANIA UTILITY COMMISSION HAS DIRECTED THE TRUCKMEN TO CHARGE ON A PACKAGE BASIS ON LOCAL SHIPMENTS IN PHILADELPHIA, IT WOULD NOT SEEM POSSIBLE TO RULE THAT ONLY A HUNDREDWEIGHT TARIFF APPLIES.

THE CLAIM HERE AT ISSUE ARISES OUT OF SHIPMENTS BY MOTOR TRUCK OF A CERTAIN QUANTITY OF MEN'S WOOL SERGE COATS DURING THE PERIOD FROM MARCH 16, 1956, TO JULY 11, 1956. SUPPLEMENT NO. 35 TO FREIGHT PA.P.U.C. NO. 6, SETTING FORTH LOCAL FREIGHT TARIFF RATES AND RULES, LISTS THE ABC EXPRESS COMPANY, THE CARRIER IN THIS CASE, AS A PARTICIPATING CARRIER AND THE SUPPLEMENT BECAME EFFECTIVE JANUARY 24, 1956. HENCE, THIS SUPPLEMENT WOULD APPEAR TO CONTAIN THE APPLICABLE TARIFF RATES FOR THE SHIPMENTS WITH WHICH WE ARE HERE CONCERNED AND, THEREFORE, THE RATES THEREIN WERE USED AS THE BASIS FOR OUR SETTLEMENT OF MARCH 27, 1958. AS TO THE PROPRIETY OF THE SPECIFIC RATES USED IN THE SETTLEMENT, SECTION 1 OF SUPPLEMENT NO. 35 SETS UP RATES WHICH APPLY, WITH CERTAIN SPECIFIED EXCEPTIONS, TO ALL COMMODITIES FOR THE TYPE OF SHIPMENTS HERE INVOLVED. THE EXCEPTIONS, SUCH AS ARE SPECIFICALLY PROVIDED FOR IN SECTIONS 2, 3 AND 4 OF SUPPLEMENT NO. 35, SET UP CERTAIN MATERIALS, COMMODITIES, ETC., FOR WHICH PACKAGE RATES APPEAR TO BE PROPERLY FOR APPLICATION. HOWEVER, THERE IS NOT FOUND IN ANY OF THE EXCEPTED SECTIONS, OR ELSEWHERE IN THE SUPPLEMENT, THE SPECIFIC ITEM OF MEN'S WOOL SERGE COATS OR ANY OTHER COMMODITY UNDER WHICH SUCH COATS COULD APPEAR TO BE PROPERLY CLASSIFIED. THEREFORE, SINCE MEN'S WOOL SERGE COATS ARE NOT OTHERWISE EXPRESSLY PROVIDED FOR IN SUPPLEMENT NO. 35, IT IS BELIEVED THAT THEY MUST BE DESIGNATED AS FALLING UNDER THE MORE OR LESS GENERAL CLASS OF COMMODITIES COVERED BY SECTION 1, ALL OF THE RATES FOR WHICH ARE LISTED FOR COMPUTATION ON A WEIGHT BASIS.

IT MIGHT ALSO BE STATED IN THIS CASE THAT THE FOREGOING DETERMINATION AS TO THE CHARGE PROPERLY BEING BASED ON A WEIGHT BASIS WOULD APPEAR TO APPLY REGARDLESS OF WHETHER THE PHILADELPHIA QUARTERMASTER DEPOT IS CONSIDERED A TERMINAL OR NOT. HOWEVER, IT ALSO WOULD APPEAR FURTHER IN THIS CONNECTION, THAT THE GENERALLY ACCEPTED INTERPRETATION OF THE WORD "TERMINAL" IN A TRANSPORTATION SENSE, WOULD BE THAT IT IS THE END OF A CARRIER LINE, SUCH AS A RAILROAD, TRUCKING OR SHIPPING LINE WITH FREIGHT STATIONS, YARDS AND OFFICES, WHICH IS USED SOLELY TO FACILITATE THE EXCLUSIVE TRANSPORTATION BUSINESS OF THE CARRIER.

IN VIEW OF THE FOREGOING, PARTICULARLY SINCE YOU HAVE NOT FURNISHED ANY CLEAR AND CONVINCING EVIDENCE OF, OR REFERENCE TO, THE TARIFF RATES RELIED UPON BY YOU TO ESTABLISH THAT THE PACKAGE RATES ARE APPLICABLE TO THE SUBJECT SHIPMENTS, THE SETTLEMENT OF MARCH 27, 1958, IS SUSTAINED.