B-165643, MAY 9, 1969

B-165643, MAY 9, 1969

TO WEATHERS BROS. TRANSFER CO., INC.:

WE REFER TO YOUR LETTERS OF NOVEMBER 13, 1968, AND FEBRUARY 10, 1969, ASKING FOR REFUND OF MONIES DEDUCTED FROM SUMS OTHERWISE DUE WEATHERS BROS. TRANSFER CO., INC., TO RECOVER OVERCHARGES FOR PACKING AND UNPACKING SERVICES PERFORMED UNDER MOVERS' AND WAREHOUSEMEN'S ASSOCIATION OF AMERICA, INC., GOVERNMENT RATE TENDER I.C.C. NO. 1-U AND WEATHERS BROS. ICC TENDER NO. WB-267.

THE TRANSPORTATION IN QUESTION CONSISTED OF MILITARY HOUSEHOLD GOODS SHIPMENTS MOVING IN DOMESTIC DOOR-TO-DOOR SERVICE. THE LINE-HAUL RATES FOR THIS MODE OF TRANSPORTATION DO NOT INCLUDE PACKING AND UNPACKING SERVICES AND THE CHARGE FOR SUCH SERVICES MUST BE COMPUTED SEPARATELY AND ADDED TO THE CHARGE FOR THE LINE-HAUL SERVICE.

THE ASSOCIATION TENDER, I.C.C. NO. 1-U, SETS FORTH THE RATES FOR PACKING AND UNPACKING SERVICES IN ITEM 20. THE ITEM IS IN TWO PARTS AND THE FIRST PART SETS FORTH SPECIFIC RATES, STATED IN DOLLARS AND CENTS PER CONTAINER, FOR PACKING AND UNPACKING CERTAIN SPECIFIED KINDS OF CONTAINERS, SUCH AS BARRELS, BOXES, CARTONS, CRATES, ETC. THE SECOND PART OF THE ITEM IS CAPTIONED:

"MAXIMUM CHARGE (EXCEPT AS SHOWN IN NOTE) - PACKING AND UNPACKING CHARGES WILL BE SUBJECT TO A MAXIMUM TOTAL CHARGE AS FOLLOWS: " THERE THEN FOLLOWS A SCHEDULE OF RATES, STATED IN DOLLARS AND CENTS PER 100 POUNDS, APPLICABLE TO THE TOTAL WEIGHT OF A SHIPMENT, WITH THE RATE SCALE DECREASING AS THE WEIGHT OF A SHIPMENT INCREASES WITHIN SPECIFIED WEIGHT BRACKETS. BELOW THIS SCALE OF RATES APPEARS THE NOTE REFERRED TO IN THE CAPTION, READING AS FOLLOWS:

"NOTE: THE ABOVE MAXIMUM CHARGE RATES DO NOT INCLUDE PACKING AND UNPACKING SERVICES AS LISTED BELOW, AND THE SEPARATE CHARGES THEREFORE SHALL BE ADDED TO THE MAXIMUM CHARGE. BOXES, WOODEN (ANY CATEGORY); WARDROBE CARTON; MATTRESS CARTONS (ANY CATEGORY) AND CRATES, WOODEN AND CONTAINERS (SPECIALLY DESIGNED FOR MIRRORS, PAINTINGS, GLASS OR MARBLE TOPS AND SIMILAR FRAGILE ARTICLES).'

IT IS APPARENT, THEREFORE, IN ORDER TO DETERMINE THE APPLICABLE CHARGE FOR PACKING AND UNPACKING SERVICES FOR A GIVEN SHIPMENT, THAT IT IS NECESSARY FIRST TO COMPUTE THE TOTAL CHARGE AT THE RATES PROVIDED IN THE FIRST PART OF THE ITEM. IT THEN IS NECESSARY TO COMPUTE THE SO-CALLED MAXIMUM CHARGE AT THE RATES SPECIFIED IN THE SECOND PART OF THE ITEM, AND TO ADD TO THIS CHARGE THE SEPARATE CHARGES FOR THE EXCEPTED KINDS OF CONTAINERS. THIS TOTAL CHARGE THEN IS COMPARED WITH THE TOTAL CHARGE COMPUTED AT THE RATES SPECIFIED IN THE FIRST PART OF THE ITEM AND THE LESSER OF THE TWO APPLIES.

AT THE TIME THE SHIPMENTS IN QUESTION MOVED, WEATHERS BROS. TRANSFER CO., INC., HAD ON FILE WITH THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS) ITS INDIVIDUAL TENDER ICC NO. WB-267. SCHEDULE "B" OF THIS TENDER SETS FORTH A SCALE OF RATES, GRADUATED ACCORDING TO BOTH WEIGHT AND MILEAGE, UNDER THE CAPTION:

"MAXIMUM CHARGE - PACKING AND UNPACKING CHARGES WILL BE SUBJECT TO A MAXIMUM TOTAL CHARGE AS FOLLOWS: " IN CONTRAST, AS PREVIOUSLY STATED ABOVE, THE CAPTION PRECEDING THE SCALE OF RATES IN THE SECOND PART OF ITEM 20 OF THE ASSOCIATION TENDER, I.C.C. NO. 1-U, READS:

"MAXIMUM CHARGE (EXCEPT AS SHOWN IN NOTE) - PACKING AND UNPACKING CHARGES WILL BE SUBJECT TO A MAXIMUM TOTAL CHARGE AS FOLLOWS: "

IT WILL BE SEEN THAT THE CAPTION IN ICC TENDER NO. WB-267 IS THE SAME AS THAT PROVIDED IN THE SECOND PART OF ITEM 20 OF THE ASSOCIATION TENDER EXCEPT THAT THERE IS NO REFERENCE TO ANY NOTE PROVIDING FOR EXCLUSION OF ANY PACKING AND UNPACKING SERVICES RELATING TO SPECIFIC KINDS OF CONTAINERS. THE CAPTION IN THE WEATHERS BROS. TENDER, THEREFORE, IDENTIFIES THE SCALE OF RATES SHOWN THEREUNDER AS THE BASIS FOR COMPUTING THE MAXIMUM TOTAL CHARGE FOR PACKING AND UNPACKING SERVICES, WITHOUT EXCEPTION OR QUALIFICATION.

IN YOUR LETTERS YOU STATE THAT IT WAS YOUR COMPANY'S INTENTION THAT ICC TENDER NO. WB-267 SUBSTITUTE ONLY THE RATE SCALE SHOWN THEREIN FOR THE RATE SCALE SHOWN IN THE SECOND PART OF ITEM 20 OF THE ASSOCIATION TENDER, WITH THE REMAINING PROVISIONS OF ITEM 20 TO REMAIN IN EFFECT, INCLUDING THE PROVISIONS THAT THE MAXIMUM CHARGE RATES DO NOT APPLY TO CERTAIN CONTAINERS AND THAT THE PACKING AND UNPACKING CHARGES FOR SUCH CONTAINERS ARE TO BE ADDED TO THE MAXIMUM CHARGE. BUT THIS CONTENTION IGNORES THE FACT THAT THE MAXIMUM CHARGE RATE SCHEDULE IN ITEM 20 IS PUBLISHED UNDER AN IDENTIFYING CAPTION WHICH SPECIFICALLY LIMITS THE SCOPE OF THE RATES TO CERTAIN PACKING AND UNPACKING SERVICES BECAUSE OF SPECIFIC REFERENCE IN THE CAPTION TO THE NOTE WHICH EXCLUDES CERTAIN PACKING AND UNPACKING SERVICES FROM THE APPLICATION OF THE RATES.

THE IDENTIFYING CAPTION IN THE INDIVIDUAL TENDER IS NOT SO LIMITED, AND THE PLAIN LANGUAGE OF THE CAPTION IDENTIFIES THE RATE SCHEDULE APPEARING THEREUNDER AS PROVIDING MAXIMUM PACKING AND UNPACKING CHARGES WITHOUT EXCEPTION OR QUALIFICATION. IF, AS YOU SAY, WEATHERS BROS. HAD MEANT TO LIMIT THE SCOPE OF THE MAXIMUM CHARGE PROVIDED IN THE INDIVIDUAL TENDER SO AS TO EXCLUDE CERTAIN SERVICES FOR WHICH AN ADDITIONAL CHARGE WOULD BE MADE, IT WOULD HAVE BEEN A SIMPLE MATTER TO HAVE DONE SO BY APPROPRIATE QUALIFICATION OR LIMITATION IN THE CAPTION IDENTIFYING THE APPLICATION OF THE RATES.

ALSO STATED IN YOUR LETTERS IS THE ARGUMENT THAT THE INDIVIDUAL TENDER BEARS REFERENCE TO THE CONTINUING APPLICATION OF THE ASSOCIATION TENDER, I.C.C. NO. 1-U, AND THAT TO CONSTRUE THE INDIVIDUAL TENDER AS ELIMINATING THE "RULE" IN ITEM 20 EXCEPTING CERTAIN CONTAINERS FROM THE MAXIMUM CHARGE WOULD RENDER THIS REFERENCE MEANINGLESS. IN THE FIRST PLACE, THE SO- CALLED "RULE" IN ITEM 20 IS NOT A RULE AT ALL: IT IS AN EXCEPTION SPECIFICALLY REFERRED TO IN THE CAPTION IDENTIFYING THE SCOPE AND APPLICATION OF THE MAXIMUM CHARGE RATE SCHEDULE, AND, AS SUCH, IT IS AN INTEGRAL AND INSEPARABLE PART OF THE ENTIRE MAXIMUM CHARGE PROVISION IN ITEM 20.

NO SUCH EXCEPTION APPEARS IN THE MAXIMUM CHARGE PROVISION OF THE INDIVIDUAL TENDER AND THE ABSENCE OF SUCH EXCEPTION WOULD SEEM TO INDICATE THAT NONE WAS INTENDED. THE REFERENCE IN THE INDIVIDUAL TENDER TO THE CONTINUED APPLICATION OF THE ASSOCIATION TENDER IS MADE FOR THE OBVIOUS PURPOSE OF SHOWING THAT THE REGULAR CHARGES FOR PACKING AND UNPACKING SERVICES, AS PROVIDED IN THE FIRST PART OF ITEM 20, CONTINUE TO APPLY. OBVIOUSLY, IF A PARTICULAR CHARGE IS DESIGNATED AS A MAXIMUM CHARGE, THERE MUST BE SOME REGULAR CHARGE TO WHICH IT IS TO BE COMPARED IN ORDER TO DETERMINE WHETHER IT IS TO APPLY AS A MAXIMUM CHARGE.

ENCLOSED WITH ONE OF YOUR LETTERS WAS AN AFFIDAVIT EXECUTED BY YOUR LOCAL AGENT ATTESTING TO THE FACT THAT AN EMPLOYEE AT CAMERON STATION, VIRGINIA, THE SHIPPING INSTALLATION WHICH INITIATED SOME OF THESE SHIPMENTS, HAD INFORMED YOUR AGENT THAT WEATHERS BROS.- TENDER WAS BEING GIVEN THE SAME INTERPRETATION THERE AS WAS GIVEN IT BY THE CARRIER. APART FROM THE HEARSAY NATURE OF THE REPORTED STATEMENT AND QUESTION OF THE AUTHORITY OF THE EMPLOYEE TO GIVE AN OPINION WHICH WOULD BIND CONTRACTUAL RELATIONS OF THE UNITED STATES, THE SUBJECTIVE INTENTION OF THE PARTIES TO A CONTRACT BECOMES RELEVANT ONLY WHEN A CONTRACT PROVISION IS UNCLEAR OR AMBIGUOUS.

THE LANGUAGE OF ICC TENDER NO. WB-267 IS PLAIN AND UNAMBIGUOUS, AND THE INTENTION THUS MANIFESTED IS ALONE THE INTENTION TO WHICH THE LAW GIVES EFFECT. ATLANTIC COAST LINE R. CO. V ATLANTIC BRIDGE CO., 5TH CIR., 1932, 57 F.2D 654. IT IS WHAT THE TENDER IS, NOT WHAT IT SHOULD HAVE BEEN, THAT CONTROLS. FORT WORTH AND DENVER CITY RY. CO. V CHILDRESS COTTON OIL CO., U.S.D.C. TEXAS, 1942, 48 F.SUPP. 937, AFFIRMED 141 F.2D 558.

ADDITIONALLY, INSOFAR AS THE CLEAR AND UNAMBIGUOUS MEANING OF THE MAXIMUM CHARGE PROVISION OF TENDER WB-267 IS CONCERNED, THE EXPLANATION SET FORTH IN THE AFFIDAVIT OF THE AGENT'S ORIGINAL BILLING ON THE SAME BASIS YOUR COMPANY NOW REPUDIATES AND DISPUTES SERVES TO CONFIRM THE GOVERNMENT'S POSITION. YOUR COMPANY'S AGENT, UNAWARE OF AN UNEXPRESSED INTENTION, PROCEEDED TO BILL IN A REASONABLE MANNER BY GIVING EFFECT TO THE PLAIN LANGUAGE OF SCHEDULE B. IT WAS ONLY WHEN THE AGENT WAS ADVISED THAT SCHEDULE B "WAS MEANT," THAT IS,"WAS INTENDED," TO APPLY IN THE MANNER NOW CONTENDED FOR BY YOUR COMPANY THAT SHE REVISED THE BILLINGS ALREADY SUBMITTED FOR PAYMENT.

FINALLY, YOU CITE NUMEROUS COURT OF CLAIMS CASES STANDING FOR THE PROPOSITION THAT SECTION 22 QUOTATIONS ARE TO BE STRICTLY CONSTRUED AND THEIR APPLICATION RESTRICTED TO THOSE MATTERS WHICH THEY SPECIFICALLY COVER. THERE IS NO GAINSAYING THE FACT THAT SECTION 22 QUOTATIONS ARE STRICTLY CONSTRUED BY THE COURT OF CLAIMS. BUT HERE YOU WOULD HAVE US RESTRICT THE APPLICATION OF THIS TENDER BY READING INTO IT THE LANGUAGE OF AN EXCEPTION WHICH IS NEITHER EXPRESSLY REFERRED TO IN THE TENDER NOR REQUIRED BY NECESSARY IMPLICATION IN ORDER TO GIVE EFFECT TO THE TENDER PROVISIONS.

FOR THE REASONS STATED, WE BELIEVE THE SHIPMENTS IN QUESTION WERE OVERCHARGED, AS MORE PARTICULARLY SHOWN IN THE NOTICES OF OVERCHARGE PREVIOUSLY SENT TO YOU. ACCORDINGLY, YOUR CLAIM FOR REFUND OF THE AMOUNTS DEDUCTED TO RECOVER THESE OVERCHARGES IS DENIED.