B-180124, JAN 24, 1975, 54 COMP GEN 610

B-180124, JAN 24, 1975, 54 COMP GEN 610

TRANSPORTATION - RATES - TARIFFS - INCORPORATION BY REFERENCE A COMMON CARRIER MAY BY REFERENCE INCORPORATE INTO A GOVERNMENT RATE TENDER THE TRANSPORTATION SERVICES AND CHARGES PUBLISHED IN OTHER TARIFFS. TRANSPORTATION - RATES - LIGHT AND BULKY ARTICLES APPLICATION OF THE LIGHT AND BULKY RULE IN CARRIER'S PUBLISHED TARIFF IS PREMISED ON EACH ARTICLE TRANSPORTED AND NOT ON THE SIZE OF THE PACKAGE OR THE SHIPMENT AS A WHOLE.

IN THE MATTER OF WELLS CARGO, INC., JANUARY 24, 1975:

WELLS CARGO, INC., A MOTOR FREIGHT COMMON CARRIER OPERATING IN INTERSTATE COMMERCE, HAS REQUESTED THE COMPTROLLER GENERAL TO REVIEW THE CLAIMS SETTLEMENTS WHICH DISALLOWED ADDITIONAL AMOUNTS CLAIMED BY THE CARRIER ON SEVERAL SHIPMENTS OF PROPERTY TRANSPORTED FOR THE UNITED STATES.

FIVE OF THE CARRIER'S CLAIMS INVOLVE SHIPMENTS OF AMMUNITION AND EXPLOSIVES WHICH MOVED BETWEEN CALIFORNIA AND NEVADA. ON THOSE SHIPMENTS OUR TRANSPORTATION AND CLAIMS DIVISION APPLIED THE RATES NAMED IN WELLS CARGO RATE TENDER I.C.C. 34 (A SECTION 22 QUOTATION ISSUED PURSUANT TO 49 U.S.C. 22, 317(B)) FOR THE LINE-HAUL SERVICES, AND THE CHARGES PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF BUREAU TARIFF 7-C, MF-I.C.C. 186, FOR THE HAND-TO-HAND SIGNATURE SERVICES REQUESTED ON THE SHIPMENTS.

THE CARRIER CONTENDS THAT THE LINE-HAUL RATES NAMED IN TENDER I.C.C. 34 CANNOT BE USED FOR COMPUTING THE LINE-HAUL CHARGES ON THESE SHIPMENTS BECAUSE ITEM 16 PROVIDES THAT NO ACCESSORIAL CHARGES ARE INVOLVED. THE CARRIER'S CONTENTION, HOWEVER, OMITS APPLICATION OF ITEM 18 OF THE TENDER WHICH PROVIDES:

EXCEPT AS OTHERWISE PROVIDED HEREIN, SHIPMENTS MADE UNDER THE PROVISIONS OF THIS TENDER ARE ENTITLED TO SUCH ADDITIONAL SERVICES AND PRIVILEGES AS ARE PROVIDED IN SEPARATELY PUBLISHED TARIFFS OR TENDERS TO WHICH THE CARRIER IS A PARTY, SUBJECT TO THE TARIFF OR TENDER CHARGES, ALLOWANCES, RULES AND REGULATIONS APPLICABLE TO SUCH SERVICES AND PRIVILEGES.

WHEN CONSIDERED TOGETHER, ITEMS 16 AND 18 PROVIDE THAT THE LINE-HAUL RATES NAMED IN THE RATE QUOTATION DO NOT INCLUDE ANY ACCESSORIAL SERVICES BY THE CARRIER, BUT THAT THE CARRIER WILL FURNISH THE ACCESSORIAL SERVICES NAMED IN ANY OTHER TARIFFS IN WHICH IT PARTICIPATES AT THE CHARGES SPECIFIED. SINCE WELLS CARGO, INC. IS NAMED AS A PARTICIPATING CARRIER TO THE SERVICES AND CHARGES PUBLISHED IN ROCKY MOUNTAIN MOTOR TARIFF 7-C, THE HAND-TO-HAND SIGNATURE SERVICES AND CHARGES NAMED IN THAT TARIFF ARE PROPER FOR APPLICATION ON SHIPMENTS RATED UNDER RATE TENDER I.C.C. 34. THE BASIS USED IN THE SETTLEMENTS IS THEREFORE PROPER AND THE SETTLEMENT ACTIONS ARE SUSTAINED.

THE CARRIER ALSO REQUESTS REVIEW OF OTHER SETTLEMENTS WHICH DISALLOWED THE ADDITIONAL FREIGHT CHARGES CLAIMED ON 26 SHIPMENTS OF EMPTY ALUMINUM AERIAL BOMBS TRANSPORTED FROM HAWTHORNE, NEVADA, TO PORT CHICAGO, CALIFORNIA. IN THE BASES OF SETTLEMENT, OUR TRANSPORTATION AND CLAIMS DIVISION COMPUTED THE FREIGHT CHARGES ON THE ACTUAL WEIGHT OF ARTICLES SHIPPED AT THE RATES PUBLISHED IN WELLS CARGO, INC., TARIFF 1-B, MF-I.C.C. 4. THE CLAIMANT CONTENDS THAT HIGHER CHARGES APPLY BASED ON THE PROVISIONS OF RULE 140 OF THE TARIFF WHICH RELATES TO LIGHT AND BULKY ARTICLES. RULE 140 READS AS FOLLOWS:

WHEN A SHIPMENT IS COMPOSED OF OR INCLUDES A LIGHT AND BULKY ARTICLE OR LIGHT AND BULKY ARTICLES WHOSE TOTAL MEASUREMENT (OR SUCH LIGHT AND BULKY ARTICLE OR ARTICLES) IS IN EXCESS OF 64 CUBIC FEET AND WHEN SUCH ARTICLE OR ARTICLES WEIGH LESS THAN FIFTEEN (15) POUNDS PER CUBIC FOOT OF SPACE OCCUPIED, CHARGES SHALL BE ASSESSED BY APPLYING THE CLASS OR COMMODITY RATE APPLICABLE THERETO ON THE BASIS OF FIFTEEN (15) POUNDS FOR EACH CUBIC FOOT OF SPACE OCCUPIED BY SUCH ARTICLE OR ARTICLES. (SEE NOTES 1, 2 AND 3 BELOW.)

NOTE 1 - THE PROVISIONS OF THIS RULE SHALL BE DEEMED TO RELATE TO EACH ARTICLE IN THE SHIPMENT SEPARATELY AND NOT TO THE SHIPMENT AS A WHOLE.

NOTES 2 AND 3 ARE NOT RELEVANT TO THE QUESTION HERE.

THE SHIPPING RECORDS IN OUR OFFICE SHOW THAT EACH BOMB WAS SEPARATELY PACKAGED IN A WIRE BOUND CRATE AND THAT SIX OF THE CRATED BOMBS WERE STRAPPED TO A PALLET FOR TRANSPORTATION. WELLS CARGO CONTENDS THAT THE LIGHT AND BULKY ARTICLE RULE IN THE TARIFF APPLIES ON THE SHIPMENTS BECAUSE THE CONTENTS OF THE PALLET PACKAGE EXCEEDED 64 CUBIC FEET. SUPPORT OF THE CONTENTION, THE CARRIER CITES THE DECISION IN STANDARD ELECTRICA, S.A. V. HAMBURG SUDAMERIKANISCHE DAMPFSCHIFFAHARTS GESELLSCHAFT, 375 F.2D 943 (2D CIR. 1967), CERTIORARI DENIED, 389 U.S. 971. THE COURT THERE FOUND THAT THE SKIDDED COMMODITIES SHIPPED WERE WITHIN THE MEANING OF THE WORD "PACKAGE" AS USED IN THE CARRIAGE OF GOODS BY SEA ACT. SECTION 1303, PARAGRAPH 5, 46 U.S.C. 1304(5), PROVIDES THAT:

NEITHER THE CARRIER NOR THE SHIP SHALL ... BECOME LIABLE FOR ANY LOSS OR DAMAGE ... OF GOODS IN AN AMOUNT OF $500 PER PACKAGE.

THE DECISION CITED, HOWEVER, IS NOT RELEVANT BECAUSE THE LIGHT AND BULKY ARTICLE RULE IN TARIFF 1-B BY ITS TERMS APPLIES TO EACH ARTICLE AND NOT TO THE PACKAGE OR TO THE SHIPMENT AS A WHOLE. SINCE APPLICATION OF THE RULE IS PREMISED ON THE CUBIC MEASUREMENT OF EACH ARTICLE AND SINCE THE ARTICLES SHIPPED WERE CRATED BOMBS WHICH DID NOT EXCEED 64 CUBIC FEET, THE LIGHT AND BULKY ARTICLE RULE IS NOT FOR APPLICATION ON THE SHIPMENTS. THE SETTLEMENTS ISSUED ON THE CLAIMS ARE THEREFORE PROPER AND SUSTAINED.