B-183217, APR 11, 1975

B-183217, APR 11, 1975

GOVERNMENT OFFICERS ARE WITHOUT AUTHORITY TO CONTRACT FOR TRANSPORTATION RATES HIGHER THAN THOSE AVAILABLE TO THE PUBLIC GENERALLY; THUS, PER UNIT RATES OFFERED TO THE GOVERNMENT ON SHIPMENTS MOVING ON DOUBLE-BOTTOM UNITS OF 26-FOOT SEMI-TRAILERS CANNOT BE USED WHEN LOWER TARIFF CHARGES AVAILABLE TO THE PUBLIC CAN BE COMPUTED BY ASSESSING THE TARIFF MINIMUM WEIGHT ON EACH TRAILER. TARIFF RULE REQUIRING COMPUTATION OF FREIGHT CHARGES ON CONSTRUCTIVE WEIGHT OF MINIMUM LINEAL FEET OF TRAILER SPACE USED ON "STANDARD SEMI TRAILER" OF NOT LESS THAN 28 FEET IN LENGTH, DOES NOT GOVERN SHIPMENT LOADED ON TWO 26-FOOT SEMI-TRAILERS.

MCCONNELL HEAVY HAULERS, INC.:

MCCONNELL HEAVY HAULERS, INC. (MCCONNELL) REQUESTS REVIEW OF OUR TRANSPORTATION AND CLAIMS DIVISION'S (TCD) SETTLEMENT CERTIFICATE, DATED JULY 22, 1974, CLAIM NO. TK-970829. IN THE SETTLEMENT TCD DISALLOWED MCCONNELL'S CLAIM FOR $32.20 REPRESENTING ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE ON A SHIPMENT OF AIRCRAFT PARTS AND MISCELLANEOUS FREIGHT, WEIGHING 13,590 POUNDS. THE SHIPMENT WAS TRANSPORTED FROM RED RIVER ARMY DEPOT, DEFENSE, TEXAS, TO KELLY AIR FORCE BASE, TEXAS, ON GOVERNMENT BILL OF LADING (GBL) NO. F-3494549, DATED MAY 13, 1971.

THE GBL SHOWS IN THE CAR ORDERED AND FURNISHED BLOCK "2 EA 26'," INDICATING THAT TWO 26-FOOT FLATBED TRAILERS, CALLED "DOUBLE BOTTOMS," WERE ORDERED AND FURNISHED. THE MARKS SECTION OF THE GBL SHOWS THAT THE SHIPMENT WAS INTENDED "FOR EXPORT." THE SPACE PROVIDED FOR TARIFF OR SPECIAL RATE AUTHORITIES BEARS THE NOTATION "NASC 100-B ITEM 830 EFF 1-10- 68," REFERRING TO A RATE TENDER, NATIONAL ASSOCIATION OF SPECIALIZED CARRIERS TARIFF NO. 100-B, TENDER I.C.C. 54 (TENDER 100-B), WHICH NAMES RATES AVAILABLE TO THE GOVERNMENT.

MCCONNELL WAS PAID $350 ON JUNE 29, 1971, BASED ON A RATE PER UNIT OF EQUIPMENT USED WHICH IS PUBLISHED IN TENDER 100-B. TCD FOUND AN OVERCHARGE OF $32.20 BASED ON LOWER FREIGHT CHARGES OF $317.80 DERIVED FROM OIL FIELD HAULERS ASSOCIATION, AGENT (OFHA) TARIFF 6-K, RCT NO. 3 (RCT NO. 3). RCT NO. 3 IS AN INTRASTATE (TEXAS) TARIFF, WHEREAS THE SHIPMENT, INTENDED FOR EXPORT, WAS INTERSTATE IN NATURE. HOWEVER, THE SAME CHARGES ARE FOUND IN OFHA TARIFF NO. 10-G, MF-I.C.C. NO. 84 (TARIFF 10-G), A TARIFF FILED WITH THE INTERSTATE COMMERCE COMMISSION CONTAINING RATES AVAILABLE TO THE PUBLIC GENERALLY, AND EVEN THOUGH MCCONNELL APPARENTLY DOES NOT HAVE INTERSTATE OPERATING AUTHORITY, THEY CAN BE USED AS THE QUANTUM MERUIT FOR THE SERVICES FURNISHED BY MCCONNELL.

IN THE ABSENCE OF REFUND THE OVERCHARGE WAS COLLECTED BY DEDUCTION FROM MONEYS OTHERWISE DUE MCCONNELL. MCCONNELL'S CLAIM FOR THE AMOUNT DEDUCTED WAS DISALLOWED IN THE SETTLEMENT HERE UNDER REVIEW.

MCCONNELL CONTENDS THAT TENDER 100-B APPLIES BECAUSE IT SPECIFICALLY COVERS TRAFFIC TRANSPORTED IN A UNIT OF EQUIPMENT CONSISTING OF A TRACTOR AND TWO TRAILERS OR SEMI-TRAILERS WITH A COMBINED LOADING SPACE OF 52 FEET PER UNIT. MCCONNELL OBJECTS TO THE SETTLEMENT BASIS, CONTENDING THAT IF THE FREIGHT ON EACH TRAILER IS RATED UNDER TARIFF NO. 10-G, THE FREIGHT CHARGES WOULD BE HIGHER THAN THOSE DERIVED FROM TENDER 100-B BECAUSE AN EXCEPTION TO RULE 120 OF OFHA TARIFF NO. 1-E, MF-I.C.C. NO. 86 (TARIFF 1- E), GOVERNING TARIFF 10-G, REQUIRES THE USE OF A CONSTRUCTIVE WEIGHT OF NOT LESS THAN 600 POUNDS PER LINEAL FOOT FOR SHIPMENTS REQUIRING MORE THAN 20 LINEAL FEET OF LOADING SPACE ON A STANDARD SEMI-TRAILER.

THERE IS NO DISPUTE THAT TENDER 100-B COVERS THE SHIPMENT BUT IT IS ESTABLISHED BY LAW THAT GOVERNMENT OFFICERS ARE WITHOUT AUTHORITY TO CONTRACT FOR RATES HIGHER THAN THOSE TENDERED TO THE PUBLIC IN DULY PUBLISHED TARIFFS. MISSOURI PACIFIC RAILROAD COMPANY V. UNITED STATES, 71 CT. CL. 650, 661 (1931); GREYHOUND CORP. V. UNITED STATES, 111 F. SUPP. 259, 264 (1953); GREAT NORTHERN RAILWAY COMPANY V. UNITED STATES, 170 CT. CL. 188, 193 (1965). IN RECOGNITION OF THIS LEGAL PRINCIPLE, ITEM 130 OF TENDER 100-B PROVIDES THAT WHERE TENDER RATES ARE HIGHER, THE UNITED STATES IS ENTITLED TO THE LOWER TARIFF RATES.

THE EXCEPTION TO THE GENERAL DEFINITION IN RULE 120 OF TARIFF 1-E RELIED ON BY MCCONNELL APPLIES TO A "STANDARD SEMI-TRAILER," WHICH IS DEFINED IN TARIFF 1-E AS A SEMI-TRAILER HAVING A FLAT DECK OF NOT LESS THAN 28 FEET IN LENGTH. SINCE TWO 26-FOOT TRAILERS WERE USED AND SINCE NEITHER TARIFF 10-G NOR TARIFF 1-E EXCLUDE THE USE OF 26-FOOT DOUBLE BOTTOM UNITS, THE CHARGE BASIS URGED BY CLAIMANT WOULD NOT APPLY AND THE CHARGE COMPUTED BY TCD, PROTECTING A 7,000-POUND MINIMUM WEIGHT ON EACH TRAILER, IS CORRECT.

THE SETTLEMENT OF JULY 22, 1974, IS NOT OTHERWISE SHOWN TO BE ERRONEOUS AND IT IS SUSTAINED.