B-148558, SEP. 27, 1962

B-148558, SEP. 27, 1962

TO LYON VAN LINES, INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1962, ACKNOWLEDGED APRIL 6, 1962, REQUESTING A REVIEW OF OUR SETTLEMENT CERTIFICATE OF MARCH 1, 1962, WHICH DISALLOWED YOUR CLAIM, SUBMITTED UNDER SUPPLEMENTAL BILL NO. 1341-280A, FOR $278.20, ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE SHIPMENT OF STAFF SERGEANT MYRON J. SHERRY'S HOUSEHOLD GOODS FROM NELLIS AIR FORCE BASE, NEVADA, TO LAON AIR FORCE BASE, FRANCE, UNDER GOVERNMENT BILL OF LADING AF-948272, DATED NOVEMBER 10, 1960.

FOR SERVICES PERFORMED, YOU ORIGINALLY BILLED AND WERE PAID $1,482, COMPUTED ON THE WEIGHT OF 3,760 POUNDS (AS 4,000 POUNDS) AT A RATE OF $11.40 PER 100 POUNDS TO NEW ORLEANS, LOUISIANA ($456), PLUS $24.50 PER 100 POUNDS TO LE HAVRE, FRANCE (AT THE ACTUAL WEIGHT OF 3,760 POUNDS) ($921.20), AND $2.62 PER 100 POUNDS FROM LE HAVRE TO LAON, FRANCE ($104.80) ON THE WEIGHT OF 3,760 POUNDS (AS 4,000 POUNDS). THESE RATES WERE AUTHORIZED UNDER A SECTION 22 QUOTATION DESIGNATED AS HOUSEHOLD GOODS CARRIER'S BUREAU, MILITARY RATE TARIFF I.C.C.NO. 4.

YOUR SUPPLEMENTAL BILL NO. 1341-280A, FOR $278.20 ADDITIONAL CHARGES, WAS BASED ON A "THRU CONTAINER" SERVICE CHARGE OF $47 PER 100 POUNDS ON SHIPMENT OF 3,760 POUNDS, PRODUCING TOTAL CHARGES OF $1,760.20, LESS $1,482 ORIGINALLY PAID ON CARRIER'S BILL 1341-280. THIS CLAIM WAS DISALLOWED BY OUR SETTLEMENT CERTIFICATE OF MARCH 1, 1962, SINCE "THRU CONTAINER" SERVICE WAS NOT REQUESTED. THE WORDS "THRU CONTAINER" ARE TYPEWRITTEN ON YOUR SUPPLEMENTAL BILL.

YOU CONTEND THAT THE CHARGES IN SECTION 22 TENDER NO.I.C.C. NO. 47, RATHER THAN THOSE IN MILITARY RATE TARIFF NO.I.C.C.NO. 4, ALSO A SECTION 22 QUOTATION, ARE APPLICABLE TO THIS SHIPMENT.

MILITARY RATE TARIFF I.C.C.NO. 4, WHICH LISTS LYON VAN LINES, INC., AS A PARTICIPATING CARRIER, WAS IN EFFECT ON NOVEMBER 10, 1960, THE DATE THIS SHIPMENT MOVED. THIS TARIFF PROVIDED FOR THE CHARGES OF $1,482 ORIGINALLY CLAIMED AND PAID ON YOUR BILL NO. 1341-280. IN THE CONSTRUCTION OF CHARGES FROM LE HAVRE TO LAON, FRANCE, A RATE OF $2.62 PER 100 POUNDS ($104.80) UNDER SECTION VII OF SUPPLEMENT NO. 5, RATHER THAN THE APPLICABLE RATE OF $3.14 PER 100 POUNDS ($125.60), UNDER SECTION III OF SUPPLEMENT 15 WAS USED; THEREFORE, THE TOTAL CHARGES UNDER THE TARIFF SHOULD HAVE BEEN $1,502.80 RATHER THAN $1,482.

WE NOTE THAT LYON VAN LINES, INC., AND WHEATON VAN LINES, INC., ISSUED JOINTLY SECTION 22 TENDER I.C.C.NO. 47 FOR "MOTOR-SEAVAN SERVICE" ON SEPTEMBER 28, 1960, TO BECOME EFFECTIVE OCTOBER 5, 1960. THE RATES TO BE CHARGED FOR THE MOVEMENT OF HOUSEHOLD GOODS UNDER THIS QUOTATION WERE TO COVER ALL LAND TRANSPORTATION, COMMERCIAL WATER CARRIAGE, PACKING AND UNPACKING, AND APPLIANCE SERVICING AND UNSERVICING. THE CHARGES FOR THIS SHIPMENT WERE LISTED AT A RATE OF $47 PER 100 POUNDS ON THE ACTUAL WEIGHT OF 3,760 POUNDS, OR $1,767.20 FROM ORIGIN TO DESTINATION.

BOTH SECTION 22 QUOTATIONS, MILITARY RATE TARIFF I.C.C.NO. 4 AND SECTION 22 TENDER I.C.C.NO. 47, WERE IN EFFECT ON NOVEMBER 10, 1960, THE DATE OF THIS SHIPMENT. QUOTATION NO. 47 MAKES NO MENTION OF THE CANCELLATION OF MILITARY RATE TARIFF I.C.C.NO. 4 AND, FURTHERMORE, THE FACT SHEET OF SUPPLEMENT 15 TO THE LATTER BEARS THE NOTATION "APPLICABLE FOR ACCOUNT OF CARRIERS LISTED IN SECTION I OF TARIFF AND AS AMENDED.' LYON VAN LINES, INC., IS LISTED AS A CARRIER IN SECTION I OF THE TARIFF.

WITH BOTH OF THE SECTION 22 QUOTATIONS IN EFFECT ON THE DATE THE SUBJECT SHIPMENT MOVED, AND BOTH APPARENTLY COVERING THE SAME SERVICE, THE SITUATION APPEARS TO BE ANALOGOUS TO ONE IN WHICH TWO REGULARLY PUBLISHED AND FILED TARIFFS CONTAIN RATES ON THE SAME COMMODITY, BETWEEN THE SAME POINTS, AND OVER THE SAME ROUTE VIA THE SAME CARRIER OR CARRIERS IN INTERSTATE COMMERCE. IN SUCH AN EVENT, THE LAW GOVERNING THE CHOICE OF TARIFF RATES-- IN THE ABSENCE OF A JUDICIAL DETERMINATION TO THE CONTRARY- -- APPARENTLY WOULD APPLY EQUALLY WELL IN DETERMINING THE PROPER SECTION 22 QUOTATION RATE IN THIS CASE.

MILITARY RATE TARIFF I.C.C.NO. 4 WAS PUBLISHED BY THE HOUSEHOLD GOODS CARRIER'S BUREAU, A TARIFF PUBLISHING AGENT, AND SECTION 22 TENDER, I.C.C.NO. 47, WAS PUBLISHED JOINTLY BY WHEATON VAN LINES, INC., AND LYON VAN LINES, INC., AND THE LATTER ISSUE PURPORTED TO AMEND MILITARY RATE TARIFF I.C.C.NO. 4, INSOFAR AS WHEATON VAN LINESAND LYON VAN LINES WERE CONCERNED. THUS, THE CARRIERS ARE ATTEMPTING, IN THEIR INDIVIDUALLY PUBLISHED TARIFF (SECTION 22 TENDER I.C.C.NO. 47), TO CANCEL FOR THEIR ACCOUNT RATES PUBLISHED IN THE MILITARY RATE TARIFF I.C.C.NO. 4, PUBLISHED BY A DULY AUTHORIZED AGENT. TARIFF CIRCULAR MF NO. 3, ISSUED BY THE INTERSTATE COMMERCE COMMISSION, BUREAU OF MOTOR CARRIERS, EFFECTIVE APRIL 1, 1941, ENTITLED "REGULATIONS TO GOVERN THE CONSTRUCTION, FILING, AND POSTING OF COMMON CARRIER FREIGHT TARIFFS AND CLASSIFICATION PUBLICATIONS," PROVIDES, IN RULE 9 (D) THEREOF, THAT:

"A CARRIER MAY NOT PUBLISH IN ITS INDIVIDUAL TARIFF RATES WHICH ARE TO SUPERSEDE THE RATES PUBLISHED IN A TARIFF OF A DULY AUTHORIZED AGENT UNLESS THE TARIFF IS ACCOMPANIED BY A SUPPLEMENT ISSUED BY THE AGENT CANCELING THE RATES IN HIS TARIFF EFFECTIVE ON THE SAME DATE, AND INDICATING WHERE RATES SUPERSEDING THOSE CANCELED WILL THEREAFTER BE FOUND.'

THE RECORD IN THE PRESENT CASE CONTAINS NO EVIDENCE OF THE ISSUANCE BY THE HOUSEHOLD GOODS CARRIER'S BUREAU OF A SUPPLEMENT TO MILITARY RATE TARIFF I.C.C.NO. 4 CANCELING THE RATES IN THE LATTER TARIFF FOR ACCOUNT OF THE WHEATON VAN LINES AND THE LYON VAN LINES, AND MAKING REFERENCE TO THE INDIVIDUAL ISSUE OF THESE TWO CARRIERS, SECTION 22 TENDER, I.C.C.NO. 47.

THE GOVERNMENT BILL OF LADING (NO. AF-948272), AS PREPARED BY THE GOVERNMENT TRANSPORTATION OFFICER, BORE REFERENCE TO "TARIFF HHGCB MRT NUMBER 4" (HOUSEHOLD GOODS CARRIER'S BUREAU MILITARY RATE TARIFF NO. 4), AND THE BILL OF LADING WAS EXECUTED (ISSUED) BY THE CARRIER AS PREPARED, WITHOUT EXCEPTION. SINCE THE BILL OF LADING, PRIMARILY, BECOMES THE CONTRACT BETWEEN THE PARTIES (CHAS. J. WEBB AND SONS, INC., V. CENTRAL RAILWAY OF NEW JERSEY, 36 F. 2D 702; LOUISVILLE AND NASHVILLE RAILROAD CO. V. CENTRAL IRON AND COAL COMPANY, 265 U.S. 59, 67), THE PREPARATION OF THE BILL OF LADING BY THE GOVERNMENT AND THE EXECUTION (OR ISSUANCE) THEREOF BY THE CARRIER, WHILE BEARING THE QUOTED REFERENCE, SEEMS TO BE SUBSTANTIAL EVIDENCE OF AN INTENTION BY THE PARTIES THAT THE CHARGES IN MILITARY RATE TARIFF I.C.C.NO. 4 WERE TO BE PAID BY THE GOVERNMENT AND ACCEPTED BY THE CARRIER IN FULL PAYMENT FOR THE SERVICES PERFORMED UNDER THE BILL OF LADING.

FOR THE REASONS GIVEN ABOVE, WE CONCLUDE THAT THE LOWER CHARGES PUBLISHED IN MILITARY RATE TARIFF I.C.C.NO. 4 ARE PROPER FOR APPLICATION IN THIS INSTANCE AND BY ANALOGY FOLLOWING THE HOLDING OF THE COURTS IN CONNECTION WITH SIMILAR SITUATIONS ARISING UNDER THE INTERSTATE COMMERCE ACT IN WHICH THEY HAVE REPEATEDLY HELD THAT THE SHIPPER IS ENTITLED TO APPLY THE MORE FAVORABLE OF TWO APPLICABLE RATES. UNITED STATES V. GULF REFINING CO., 268 U.S. 542; BOONE V. UNITED STATES, 109 F.2D 560, 562; WESTERN GRAIN CO. V. ST. LOUIS S.F.RY.CO., 56 F.2D 160.

ACCORDINGLY, OUR SETTLEMENT OF MARCH 1, 1962, IS MODIFIED TO ALLOW AS ADDITIONAL CHARGES THE DIFFERENCE BETWEEN THE INITIAL CHARGES OF $2.62 AND $3.14 PER 100 POUNDS (3,760 POUNDS AS 4,000 POUNDS) ACTUALLY DUE FOR SURFACE TRANSPORTATION FROM LE HAVRE TO LAON, FRANCE. OUR REVISED SETTLEMENT SHOULD REACH YOU IN DUE COURSE.