B-145605, SEP. 28, 1961

B-145605, SEP. 28, 1961

TO MR. H. CHARLES EPHRAIM:

IN YOUR LETTER OF APRIL 12, 1961, YOU, AS ATTORNEY FOR LONG TRANSPORTATION COMPANY, REQUEST REVIEW OF THE DISALLOWANCE BY SETTLEMENT CERTIFICATE OF MARCH 24, 1961, OF THE CARRIER'S CLAIM PER BILL NO. G-945 A FOR ADDITIONAL CHARGES OF $184.14 ALLEGED TO BE DUE FOR THE TRANSPORTATION OF ,BRIEF CASES, PORTFOLIOS, ENVELOPES IN BOXES," WEIGHING 6,200 POUNDS, FROM HAVERHILL, MASSACHUSETTS, TO SHELBY, OHIO, UNDER GOVERNMENT BILL OF LADING AF-6337505, DATED JANUARY 18, 1957. THE BILL OF LADING BEARS THE NOTATION "SEC. 22 QUOT. NO. 48 APPLICABLE EST.FRT. CHARGES: $328.60.' SUCH NOTATION HAS LINES DRAWN THROUGH IT AND AN UNSIGNED AND HAND-PRINTED NOTATION PLACED ADJACENT THERETO, AS FOLLOWS: "CANCELLED 3-9-58 BY MC48- A.' THERE IS NO SHOWING WHEN OR BY WHOM THIS CHANGE WAS MADE.

FOR THE SERVICE PERFORMED THE CARRIER ORIGINALLY CLAIMED AND WAS PAID CHARGES OF $402.38 COMPUTED ON THE BASIS OF THE AGGREGATE OF INTERMEDIATE CLASS 1 1/2 RATES OVER CLEVELAND. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE THE APPLICABLE CHARGES WERE DETERMINED TO BE $218.24 COMPUTED ON THE BASIS OF THE THROUGH RATE OF $3.52 PER 100 POUNDS PROVIDED IN JOINT SECTION 22 TENDER 48-A, EFFECTIVE MARCH 9, 1955, FOR APPLICATION ON SHIPMENTS OF FREIGHT OF ALL KINDS WEIGHING OVER 5,000 POUNDS BETWEEN SHELBY, OHIO, AND ALL POINTS IN MASSACHUSETTS. THE RESULTING OVERPAYMENT OF $184.14 WAS SUBSEQUENTLY RECOVERED BY ADMINISTRATIVE DEDUCTION.

LONG TRANSPORTATION COMPANY, HOWEVER, CONTENDS THAT TENDER 48-A DOES NOT OFFER ANY RATES OR TRANSPORTATION SERVICE BUT WAS ISSUED FOR THE SOLE PURPOSE OF CANCELLING TENDER 48. IT IS ARGUED THAT TENDER 48-A ON ITS FACE CANCELS TENDER 48, EFFECTIVE MARCH 9, 1955--- PRIOR TO THE MOVEMENT IN QUESTION--- AND THAT THE SERVICE AND RATES SET FORTH IN TENDER 48-A MERELY "SERVED THE PURPOSE OF IDENTIFYING THE RATES CANCELLED * * *," SINCE THERE WAS NO CHANGE IN THE RATES. IN SUPPORT OF THIS CONTENTION AND ARGUMENT YOU SUBMITTED A COPY OF THE LETTER OF TRANSMITTAL ACCOMPANYING TENDER 48-A AND A COPY OF THE LETTER OF OCTOBER 14, 1960, APPARENTLY WRITTEN IN CONNECTION WITH THE FIRST PROTEST TO THE AUDIT ACTION.

THE LETTER OF TRANSMITTAL DATED FEBRUARY 14, 1955, PROVIDES:

"ENCLOSED WITH THIS LETTER ARE THIRTY (30) COPIES OF RATE TENDER NO. 48- A, FIVE OF WHICH ARE SIGNED.

"THIS TENDER NO. 48-A IS A CANCELLATION OF TENDER NO. 48 IN FULL.'

THE LETTER OF OCTOBER 14, 1960, SUBMITTED WITH THE ORIGINAL CLAIM SETS FORTH THE ADDITIONAL ARGUMENTS THAT THERE WAS NO REASON TO ISSUE TENDER 48 -A EXCEPT TO CANCEL NO. 48, AND THAT LONG TRANSPORTATION COMPANY DID NOT FOLLOW ANY PRACTICE OF ISSUING TENDERS EXCEPT TO CHANGE OR CANCEL THEM, AND THAT TENDER 48-A WOULD NOT, IF OTHERWISE CONSTRUED, BE IN ACCORDANCE WITH LONG'S PRACTICE IN SUCH MATTERS.

TENDER 48-A ISSUED ON FEBRUARY 5, 1955, AND EFFECTIVE MARCH 9, 1955, IS ENTITLED "UNIFORM TENDER OF MOTOR CARRIER RATES OR CHARGES.' ALTHOUGH IT CANCELS TENDER 48 IN FULL, AS ALLEGED, PARAGRAPH NO. 1 PROVIDES:

"FOR AND ON BEHALF OF LONG TRANSPORTATION COMPANY, JOINTLY WITH J. P. WARD TRUCKING COMPANY, AND W. W. FALTIN MOTOR TRANS., INC. I AM (WE ARE) AUTHORIZED TO AND DO HEREBY QUOTE AND OFFER TO U.S.A.-U.S.A.A.F. * * * THE TRANSPORTATION SERVICES APPLICABLE TO PROPERTY HEREINAFTER DESCRIBED * *

TENDER 48-A THEN PROCEEDS TO DESCRIBE THE COMMODITY UNDER THE HEADING "TRAFFIC COVERED" AS: ,FREIGHT OF ALL KINDS, EXCEPT AS LISTED ON EXHIBIT A," BETWEEN SHELBY, OHIO, AND "POINTS IN THE STATES OF MASSACHUSETTS, CONNECTICUT, RHODE ISLAND, MAINE, NEW HAMPSHIRE," WITH GRADUATED RATES AND MINIMUM WEIGHTS SET FORTH ON THE REVERSE SIDE. PACKING SPECIFICATIONS, ACCESSORIAL SERVICES AND CHARGES, AND AUTHORITY FOR OPERATION ARE ALSO PROVIDED.

CANCELLATION OF TENDER NO. 48 COULD HAVE BEEN ACCOMPLISHED BY A SIMPLE NOTICE OF CANCELLATION, BUT TENDER NO. 48-A IS EXPRESSED IN TERMS OF A PRESENT OFFER OF TRANSPORTATION SERVICE. PARTIES TO A CONTRACT ARE BOUND BY THE INTENTION EXPRESSED IN THE WORDS USED WHETHER OR NOT SUCH WAS THE REAL INTENTION. SEE ALLIED STEEL AND CONVEYORS, INC. V. FORD MOTOR CO., 277 F.2D 907, 911-912; AMERICAN LOUISIANA PIPE CO. V. GULF OIL CORP., 180 F.SUPP. 155, 160, AFFIRMED 282 F.2D 401; GOLTRA V. UNITED STATES,119 CT.CL. 217, 251-252. AS STATED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN GALLO V. HOWARD STORES CORP., 145 F.SUPP. 909, AT 912, AFFIRMED 250 F.2D 37:

"* * * A PARTY MAY BE BOUND BY HIS WORDS OR CONDUCT, WITHOUT ANY INTENTION TO ASSUME LEGAL OBLIGATION IF THE WORDS OR CONDUCT ARE SUCH THAT A REASONABLE MAN OF ORDINARY CAREFULNESS AND INTELLIGENCE WOULD UNDERSTAND THAT SUCH WAS HIS INTENTION * * *.'

IN THE LETTER OF NOVEMBER 3, 1958, TO LONG TRANSPORTATION COMPANY, OUR TRANSPORTATION DIVISION REVEALED THAT THE HEADQUARTERS, MILITARY TRAFFIC MANAGEMENT AGENCY, U.S. ARMY, ON INQUIRY BY OUR OFFICE, REPORTED THAT, "INVESTIGATION REVEALS THAT STATUS OF LONG TRANSPORTATION CO. TENDER NO. 48-A IS STILL CURRENT.' APPARENTLY, THEREFORE, THE MILITARY SERVICE ALSO BELIEVED THAT TENDER NO. 48-A WAS, AS IT APPEARED TO BE, A REISSUE OF TENDER NO. 48.

SIMULTANEOUS CANCELLATION OF THE PRIOR TENDER IS NOT INCONSISTENT WITH AN INTENT TO MAKE A NEW OFFER, NOR DOES THE FACT, IF IT BE A FACT, THAT THE NEW OFFER CONTAINS IDENTICAL RATES AND SERVICES, ESTABLISH THAT THOSE RATES AND SERVICES WERE STATED ONLY FOR THE PURPOSE OF IDENTIFYING RATES AND SERVICES TO BE CANCELLED. IN THIS CONNECTION, HOWEVER, IT MAY BE NOTED, THAT ON OUR COPY OF TENDER NO. 48 A LINE HAS BEEN STRUCK THROUGH THE STATES OF CONNECTICUT AND RHODE ISLAND IN THE LIST OF STATES TO WHICH THE RATES APPLY, APPARENTLY FOR THE PURPOSE OF DELETING POINTS IN THOSE STATES. ON THE OTHER HAND THESE STATES ARE AGAIN INCLUDED IN THE LIST OF STATES IN TENDER NO. 48 A.

A NEW QUOTATION MAY BE ISSUED FOR THE PURPOSE OF SUPERSEDING, SUPPLEMENTING OR REISSUING A PRIOR QUOTATION. SEE: COAL OPERATOR TARIFF BUREAU OF ST. LOUIS V. BALTIMORE AND OHIO SOUTHWESTERN R., 41 I.C.C. 361; I.C.C. TARIFF CIRCULAR 20, RULE 9, 49 C.F.R. 141.9. IN THE EVENT OF A REISSUE THE NEW TENDER MAY AND GENERALLY DOES, AS HERE, CANCEL THE PRIOR TARIFF AND RESTATE THE SAME RATES AND SERVICES. CARRIER'S COMMONLY REISSUE OLD TARIFFS AND QUOTATIONS APPARENTLY FOR THE PURPOSE OF REVITALIZING THE OLD TARIFFS AND QUOTATIONS. YOU ARGUE IN ADDITION, HOWEVER, THAT IT HAS NOT BEEN THE PRACTICE OF LONG TRANSPORTATION COMPANY TO REISSUE OLD TENDERS. THERE IS NO EVIDENCE THAT SUCH WAS AN ESTABLISHED POLICY OF THE COMPANY OR THAT THE GOVERNMENT WAS OR SHOULD HAVE BEEN AWARE OF SUCH A POLICY. SEE IN THIS CONNECTION OUR DECISION OF SEPTEMBER 19, 1961, B-145779, TO YOU, CONCERNING LONG TRANSPORTATION COMPANY'S BILL G- 947-A. ..END :