B-166192, DEC. 9, 1969

B-166192, DEC. 9, 1969

RATES--COMBINATION--TARIFF AND SECTION 22 QUOTATIONS PRINCIPLE IN PENNSYLVANIA RAILROAD CO. CASE -- THAT IN ORDER TO COMBINE SECTION 22 QUOTATION WITH ANOTHER QUOTATION OR WITH REGULAR TARIFF PROVISION, INTENTION OF PARTIES SO TO DO MUST BE APPARENT -- FAILS TO SUPPORT CARRIER'S DISALLOWED CLAIM RESPECTING MIXED SHIPMENT SINCE ICC 19 QUOTATION REFERRED TO IN SUBJECT B/L EXPRESSLY INCORPORATES BY REFERENCE, TARIFF NMFC A-9, AND FACT THAT QUOTATION EXPRESSLY PRECLUDES USE OF ITEM 550 OF TARIFF 20-F -- EXCEPTION TO MIXING RULE -- CREATES NECESSARY INFERENCE QUOTATION FRAMERS INTENDED MIXED CARLOADS UNDER ICC 19 TO BE SUBJECT TO RULE 645 OF NMFC A-9. MOREOVER, NO RULE OR ITEM IS FOUND IN QUOTATION WHICH PROHIBITS USE OF TARIFF AND QUOTATION RATES IN CONSTRUCTING CHARGES BASES ON MIXED TRUCKLOAD SHIPMENTS.

TO RED BALL MOTOR FREIGHT, INC.:

WE REFER AGAIN TO YOUR LETTER OF SEPTEMBER 22, 1969, YOUR CLAIM OC 77236, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF SEPTEMBER 15, 1969, B-166192. IN THAT DECISION WE SUSTAINED OUR SETTLEMENT OF DECEMBER 19, 1968 (OUR CLAIM FILE NO. TK-881169) WHICH DISALLOWED YOUR CLAIM FOR $33.32, THE BALANCE OF FREIGHT CHARGES ALLEGEDLY DUE FOR THE TRANSPORTATION OF A MIXED TRUCKLOAD SHIPMENT OF GOVERNMENT PROPERTY FROM TRAVIS AIR FORCE BASE, CALIFORNIA, TO RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, UNDER GOVERNMENT BILL OF LADING NO. D-4449052, DATED APRIL 27, 1967.

YOU PREVIOUSLY CONTENDED THAT THE MIXED TRUCKLOAD SHIPMENT COULD NOT BE RATED PARTLY UNDER ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 26-B, MF- I.C.C. 155, AND PARTLY UNDER THE BUREAU'S U.S. GOVERNMENT QUOTATION I.C.C. NO. 19 (ICC 19) BECAUSE THE ABSENCE OF A COMMON MIXING RULE PRECLUDED THE COMMINGLING OF RATES FROM THE CLASS TARIFF WITH RATES FROM THE QUOTATION.

ICC 19 NAMES NATIONAL MOTOR FREIGHT CLASSIFICATION A-9 (NMFC A-9) AS THE GOVERNING CLASSIFICATION AND YOU AGREED THAT BY THIS INCORPORATION THE QUOTATION IS SUBJECT TO RULE 645 OF NMFC A-9, THE RULE GOVERNING MIXED TRUCKLOAD SHIPMENTS. SINCE A PROVISION OF ICC 19 SPECIFICALLY PRECLUDES THE USE OF ITEM 550 OF THE BUREAU'S TARIFF NO. 20-F, AN EXCEPTION TO RULE 645, IT SEEMED CLEAR THAT THE ONLY MIXING RULE GOVERNING THE SHIPMENT WAS RULE 645 OF NMFC A-9 AND WE SO HELD, CITING IN SUPPORT A SOMEWHAT SIMILAR CASE: FORD MOTOR COMPANY V MCNAMARA MOTOR EXPRESS, INC., 305 I.C.C. 49 (1958).

IN URGING RECONSIDERATION OF OUR DECISION, YOU APPARENTLY AGREE THAT RULE 645 APPLIES AND THAT THE CASE WE CITED SUPPORTS THAT APPLICATION, BUT YOU URGE, IN EFFECT, THAT PENNSYLVANIA RAILROAD COMPANY V UNITED STATES, 165 CT. CL. 1 (1964), AS APPLIED IN OUR DECISION OF JUNE 14, 1965, B-155427, TO NAVAJO FREIGHT LINES, INC., SUPPORTS THE ALLOWANCE OF YOUR CLAIM. DISAGREE.

IN THE PENNSYLVANIA CASE, IN RULING AGAINST THE USE OF AN AGGREGATE OF INTERMEDIATES RULE IN A RAIL TARIFF TO DEFEAT A SINGLE FACTOR THROUGH RATE DERIVED FROM A RAIL SECTION 22 QUOTATION, THE COURT OF CLAIMS, RELYING ON EARLIER CASES, HELD THAT IN ORDER TO COMBINE A SECTION 22 QUOTATION WITH ANOTHER QUOTATION, OR WITH A REGULAR TARIFF PROVISION, THE INTENTION OF THE PARTIES TO ACCOMPLISH THIS PURPOSE MUST BE APPARENT, EITHER BY EXPRESS PROVISION OR NECESSARY INFERENCE. AND WE APPLIED THAT PRINCIPLE IN OUR DECISION OF JUNE 14, 1965, B-155427, IN RULING AGAINST AN ATTEMPT TO COMBINE A SECTION 22 QUOTATION RATE WITH A TARIFF RATE TO PRODUCE CHARGES LOWER THAN THOSE BASED ON A THROUGH RATE DERIVED FROM A SECTION 22 QUOTATION.

ICC 19 -- THE QUOTATION REFERRED TO ON BILL OF LADING NO. D-4449052 - EXPRESSLY INCORPORATES BY REFERENCE A TARIFF -- NMFC A-9; AND THE FACT THAT THE QUOTATION EXPRESSLY PRECLUDES THE USE OF ITEM 550 OF TARIFF 20-F, THE EXCEPTION TO THE MIXING RULE, CREATES THE NECESSARY INFERENCE THAT IT WAS THE INTENTION OF THE FRAMERS OF THE QUOTATION THAT MIXED CARLOADS UNDER ICC 19 BE SUBJECT TO RULE 645 OF NMFC A-9.

FURTHERMORE, WE FIND NO RULE OR ITEM IN THE QUOTATION WHICH PROHIBITS THE USE OF TARIFF AND QUOTATION RATES IN CONSTRUCTING CHARGE BASES ON MIXED TRUCKLOAD SHIPMENTS. IN FACT, THE CHARGE BASIS CLAIMED APPLICABLE BY YOU IS THE SAME AS THE ONE ON WHICH YOUR CHARGES WERE ORIGINALLY ASSESSED AND USES RATES FROM A TARIFF, AS WELL AS RATES FROM ICC 19. SEE NATIONAL VAN LINES V UNITED STATES, 335 F.2D 326, 333 (1966), IN WHICH THE COURT NOTES THAT THE PRACTICAL APPLICATION OF TARIFFS BY INTERESTED PERSONS SHOULD BE CONSIDERED IN DETERMINING THE MEANING OF PUBLISHED TARIFFS.