B-148462, SEP. 7, 1962

B-148462, SEP. 7, 1962

TO NEPTUNE WORLD-WIDE MOVING, INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1962, IN WHICH YOU REQUESTED A REVIEW OF OUR SETTLEMENT CERTIFICATE DATED JANUARY 24, 1962. THE SETTLEMENT CERTIFICATE WAS ISSUED IN RESPONSE TO YOUR CLAIM FOR $40.15 ON SUPPLEMENTAL BILL NO. SUT-03024, AS AN ADDITIONAL ALLOWANCE ON A SHIPMENT OF HOUSEHOLD GOODS THAT MOVED FROM SILVER SPRING, MARYLAND, TO LADD AIR FORCE BASE, ALASKA, DURING 1960, UNDER GOVERNMENT BILL OF LADING NO. A 3507090. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES IN THE AMOUNT OF $809.74, COMPUTED AT A RATE OF $37.93 PER 100 POUNDS FOR 2,080 POUNDS, PLUS CARTAGE TO STORAGE AT A RATE OF $1 PER 100 POUNDS. SUBSEQUENTLY, YOU CLAIMED AND WERE PAID $20.80 REPRESENTING STORAGE-IN-TRANSIT AND HANDLING BRINGING THE TOTAL AMOUNT PAID TO $830.54.

THE SUPPLEMENTAL CLAIM HERE IN ISSUE IS BASED ON THE ASSERTION THAT THE PROPER RATE FOR THE PRIMARY TRANSPORTATION WAS A $39.86 RATE PROVIDED ON 1ST REVISED PAGE 11, EFFECTIVE MARCH 14, 1960, OF SEA-VAN PAK, INC. FREIGHT TARIFF NO. 1-B (2ND REVISED PAGE 11 WAS EFFECTIVE APRIL 11, 1960, ALSO PRIOR TO THE DATE OF THE SUBJECT SHIPMENT). THE RATES SET FORTH ON THIS PAGE ARE FOR SHIPMENTS MOVING FROM WASHINGTON, D.C., AND POINTS WITHIN A 25-MILE RADIUS, TO SEVERAL POINTS OUTSIDE THE CONTINENTAL UNITED STATES INCLUDING ALASKA. IN THE SETTLEMENT CERTIFICATE WHICH DISALLOWED YOUR CLAIM A RATE OF $37.30 WAS APPLIED FOR THE PRIMARY TRANSPORTATION AND IT WAS CONCLUDED THAT THE ALLOWABLE TOTAL CHARGES FOR THE SERVICE SHOULD HAVE BEEN $817.44. THE $37.30 RATE WAS DERIVED FROM 1ST REVISED PAGE 28, EFFECTIVE MARCH 14, 1960, OF SEA-VAN-PAK, INC. FREIGHT TARIFF NO. 1-B. REVISED PAGE 28 SETS FORTH RATES OT VARIOUS POINTS, INCLUDING ALASKA, FROM THE STATE OF MARYLAND. ON THE $37.30 RATE BASIS IT WAS DETERMINED THAT YOU WERE OVERPAID $13.10.

THE BASIS OF YOUR CONTENTION IS THAT THE SHIPMENT WAS TENDERED TO YOU BY THE TRANSPORTATION OFFICER AT THE WALTER REED ARMY MEDICAL CENTER, AND THEREFORE THE WASHINGTON, D.C., RATE IS APPLICABLE. WHILE THE SUBJECT SHIPMENT WAS AUTHORIZED BY THE WALTER REED ARMY MEDICAL CENTER, TENDER OF THE SHIPMENT WAS NOT MADE AT WALTER REED, BUT RATHER AT A RESIDENCE IN SILVER SPRING, MARYLAND. THUS, THE BILL OF LADING SHOWS THE NAME OF THE SHIPPER AS "TO, WALTER REED AMC, WASHINGTON 12, D.C.' AND THE SHIPPING POINT AS "10131 DALLAS AVENUE SILVER SPRING, MARYLAND.' WHILE SILVER SPRING IS WITHIN A 25-MILE RADIUS OF WASHINGTON, AND THUS TECHNICALLY COVERED BY THE $39.86 RATE, ALSO APPLICABLE IS THE LOWER RATE PRESCRIBED ON 1ST REVISED PAGE 28 OF THE TARIFF SINCE IT COMPREHENDS AS POINTS OF ORIGIN ALL POINTS IN MARYLAND WITHOUT EXCLUDING THOSE POINTS IN MARYLAND WITHIN A 25-MILE RADIUS OF WASHINGTON, D.C. TWO EQUALLY APPLICABLE RATES IN A SINGLE TARIFF CREATE AN AMBIGUITY, AND IT IS THE SHIPPER'S RIGHT AND THE CARRIER'S DUTY IN SUCH A CASE TO APPLY THE LOWER OF THE TWO RATES. SEE ATLANTIC COAST LINE R.CO. V. ATLANTIC BRIDGE CO., INC., 57 F.2D 654 (5 CIR. 1932); METROPOLITAN METALS, INC. V. PENNSYLVANIA RAILROAD COMPANY, ET AL., 314 I.C.C. 737 (1961).

IN THE LIGHT OF THE FOREGOING, WE SUSTAIN THE SETTLEMENT CERTIFICATE OF JANUARY 24, 1962, WHICH DISALLOWED YOUR SUPPLEMENTAL CLAIM FOR $40.15. REFUND OF THE OVERCHARGE OF $13.10 WHICH OUR TRANSPORTATION DIVISION NOTIFIED YOU WAS DUE THE UNITED STATES SHOULD BE MADE WITHIN 30 DAYS TO