B-133824, OCTOBER 21, 1958, 38 COMP. GEN. 323

B-133824, OCTOBER 21, 1958, 38 COMP. GEN. 323

TRANSPORTATION - RATES - EXCEPTION RATES V. CLASSIFICATION RATES A GOVERNMENT SHIPMENT OF AMMUNITION WHICH MOVED AT A TIME WHEN ONLY EXCEPTION FIRST-CLASS RATES WERE IN EFFECT DUE TO THE CANCELLATION OF CLASS RATES WITHOUT REISSUE AND WHEN THE APPLICATION OF A HIGHER EXCEPTION FIRST-CLASS RATE WAS RESTRICTED TO OTHER SPECIFICALLY ENUMERATED ARTICLES, NOT INCLUDING AMMUNITION, WAS PROPERLY RATED ON THE LOWER BASIS RATE WHICH WAS PUBLISHED IN A TARIFF FOR GENERAL APPLICATION, ALTHOUGH THE SPECIAL RATE TENDER OF THE CARRIER REQUIRED THE USE OF THE HIGHER RATE WHEN BOTH CLASS AND EXCEPTION RATES ARE APPLICABLE. A TRANSPORTATION RATE IS CONSIDERED "IN EFFECT" ON A GIVEN SHIPMENT ONLY WHEN IT IS PUBLISHED IN A TARIFF TO APPLY TO THAT CLASS OF SHIPMENTS AND A SPECIAL RATE TENDER WHICH REFERS TO A TARIFF FOR RULES OR APPLICATION INCORPORATES THE TARIFF AND ITS CANCELLATIONS OR RESTRICTIONS AS A PART OF THE DOCUMENT UNLESS CLEARLY AND SPECIFICALLY PROVIDED OTHERWISE; THEREFORE, A TENDER IS FOR INTERPRETATION BY REFERENCE TO RATES AND LIMITATIONS "IN EFFECT" UNDER THE INCORPORATED TARIFF AND WHEN CLASS RATES OF SUCH TARIFF ARE CANCELLED WITHOUT REISSUE OR REPUBLICATION SUCH RATES ARE NOT ,IN EFFECT.'

TO C. I. WHITTEN TRANSFER CO., OCTOBER 21, 1958:

REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM, SUPPLEMENTAL BILLS NOS. 742-A AND 750-A, FOR ADDITIONAL FREIGHT CHARGES IN THE AGGREGATE AMOUNT OF $4,192.64, ALLEGED TO BE DUE FOR THE TRANSPORTATION OF EIGHT SHIPMENTS OF HIGH EXPLOSIVES FROM KINGSPORT, TENNESSEE, TO YORKTOWN, VIRGINIA, DURING MARCH AND APRIL 1954, UNDER GOVERNMENT BILLS OF LADING NOS. WY-2572089, -098, -102, 114, -119, -122, - 124, AND -125.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES OF $1,653.92 PER SHIPMENT, COMPUTED ON THE BASIS OF A RATE OF $1.49 PER HUNDRED POUNDS. SUBSEQUENTLY, ADDITIONAL CHARGEES OF $524.08 PER SHIPMENT WERE CLAIMED, MAKING A TOTAL OF $2,178 PER SHIPMENT, COMPUTED ON THE BASIS OF A RATE OF $1.98 PER HUNDRED POUNDS. YOUR CLAIM WAS DISALLOWED BY OUR OFFICE, USING THE ORIGINAL RATE OF $1.49 PER HUNDRED POUNDS AT A WEIGHT OF 110,000 POUNDS ON EACH SHIPMENT. THIS RATE WAS BASED ON 65 PERCENT OF AN EXCEPTION FIRST-CLASS RATE OF $1.99 PER HUNDRED POUNDS INCREASED TO $2.29 PER HUNDRED POUNDS, DETERMINED BY APPLYING THE "C" RATE BASIS NO. H-121 PROVIDED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 1-B, M.F.- 1I.C.C. NO. 370.

THESE SHIPMENTS WERE TENDERED TO ARROW TRANSFER AND STORAGE CO., AT KINGSPORT, TENNESSEE, WITH INSTRUCTIONS TO DELIVER TO YORKTOWN, VIRGINIA, VIA ARROW TRANSFER AND STORAGE CO., AND C. I. WHITTEN TRANSFER CO. BOTH CARRIERS WERE PARTIES TO RATE TENDER NO. 48, BY WHICH THEY OFFERED TO TRANSPORT AMMUNITION, EXPLOSIVES, OR FIREWORKS FOR THE DEPARTMENT OF DEFENSE BETWEEN VARIOUS POINTS, INCLUDING THE PRESENT ORIGIN AND DESTINATION, AT 65 PERCENT OF THE FIRST-CLASS MOTOR CARRIER RATES PUBLISHED IN CERTAIN NAMED TARIFFS, INCLUDING TARIFF NO. 1-B, AND ALL SUPPLEMENTS AND REISSUES THEREOF.

YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES IS COMPUTED ON THE BASIS OF 65 PERCENT OF A ,FIRST-CLASS EXCEPTIONS" RATE OF $3.04 PER HUNDRED POUNDS, DERIVED BY THE USE OF AN "E" RATE BASIS NUMBER PUBLISHED IN THE CITED TARIFF NO. 1-B. YOU CONTEND THAT APPLICATION OF THE HIGHER EXCEPTIONS FIRST-CLASS RATE IS REQUIRED BY THE NOTE TO SUPPLEMENT NO. 1 OF TENDER NO. 48, WHICH PROVIDES:

IN DETERMINING RATE USE EXCEPTIONS FIRST CLASS OR CLASSIFICATION FIRST CLASS WHICHEVER IS IN EFFECT IN THE GOVERNING TARIFF NAMED IN ITEM 5. BOTH ARE IN EFFECT, WHICHEVER PRODUCES THE HIGHER RATE GOVERNS THIS TENDER. ( ITALICS SUPPLIED.)

PRIOR TO APRIL 15, 1953, TARIFF NO. 1-B PROVIDED BOTH CLASS AND EXCEPTIONS RATES, AND THE "C" RATE BASIS NUMBER, USED IN OUR AUDIT, APPLIED IN CONNECTION WITH BOTH CLASS AND EXCEPTIONS RATES. AFTER THAT DATE, HOWEVER, ALL RATES GOVERNED BY THE CLASSIFICATION PROPER, WITH A FEW EXCEPTIONS NOT HERE INVOLVED, WERE CANCELLED IN SUPPLEMENT 228 TO TARIFF NO. 1-B, AND REFERENCE WAS MADE TO SOUTHERN MOTOR CARRIER'S RATE CONFERENCE TARIFF NO. 501, M.F.-1I.C.C. 611, FOR CLASS RATES GOVERNED BY THE CLASSIFICATION PROPER. CONSEQUENTLY, IT APPEARS THAT AT THE TIME THE INSTANT SHIPMENTS WERE TENDERED TO THE CARRIER--- MARCH AND APRIL 1954--- EITHER RATE BASIS NUMBER IN TARIFF NO. 1-B PRODUCED RATES GOVERNED ONLY BY THE EXCEPTIONS TO THE CLASSIFICATION. THE NOTE IN SUPPLEMENT NO. 1 OF TENDER NO. 48 TO WHICH YOU REFER APPLIES ONLY AS BETWEEN RATES GOVERNED BY THE CLASSIFICATION PROPER AND THOSE GOVERNED BY THE EXCEPTIONS TO THE CLASSIFICATION, AND NOT AS BETWEEN NFLICTING,"EXCEPTIONS" RATES. APPEARS, THEREFORE, THAT THE NOTE HAS NO APPLICATION AS BETWEEN THE "C" AND "E" BASIS NUMBERS IN TARIFF NO. 1 B AT THE TIME OF MOVEMENT.

IN ADDITION, A RATE IS CONSIDERED TO BE "IN EFFECT" ON A GIVEN SHIPMENT WHEN IT IS PUBLISHED TO APPLY TO THAT CLASS OF SHIPMENT. SEE, WILLIAM VOLKER AND CO. V. CENTRAL R. OF PENNSYLVANIA, 300 I.C.C. 185; CUDAHY PACKING CO. V. CHICAGO, B AND Q. R., 298 I.C.C. 696; ALLIS CHALMERS MFG. CO. V. CHICAGO AND N.W. RY., 294 I.C.C. 675. ITEM 5 OF TENDER NO. 48 REFERS TO TARIFF NO. 1-B FOR TERMS AND PROVISIONS GOVERNING THE USE OF RATES. ITEM 1330-C, SUPPLEMENT 258 OF TARIFF NO. 1-B RESTRICTS THE APPLICATION OF THE "E" RATE BASIS NUMBERS TO ADVERTISING MATTER, BAGGING, BOXES, CAPS, CLOTH, GRAVEL, LIQUORS, PAPER, RAYON YARN, AND TIRE FABRIC IN CONNECTION WITH TARIFF NO. 3-F; TO DETERMINING RATES IN CONNECTION WITH RATE BASES ON RAYON AND RELATED ARTICLES; AND TO DETERMINING RATES IN OTHER TARIFFS WHICH REFER TO TARIFF NO. 1-B FOR RATE BASIS NUMBERS. WHEN REFERENCE IS MADE TO A TARIFF FOR RULES OR APPLICATION, THE TARIFF REFERRED TO, IN EFFECT, BECOMES A PART OF THE DOCUMENT MAKING SUCH REFERENCE, AND ANY RESTRICTIONS, WHICH ARE A PART OF THE TARIFF REFERRED TO, ARE THEREBY INCLUDED IN THE DOCUMENT MAKING THE REFERENCE, UNLESS THE LATTER CLEARLY AND SPECIFICALLY PROVIDES OTHERWISE. SEE LAMMERT FURNITURE CO. V. SOUTHERN RY., 126 I.C.C. 197. CONSEQUENTLY, IT DOES NOT APPEAR THAT THE "E" RATE BASIS NUMBERS ARE PUBLISHED TO APPLY TO THE PRESENT CLASS OF SHIPMENTS, AND, THEREFORE, ARE NOT "IN EFFECT" THEREON WITHIN THE MEANING OF THE NOTE REFERRED TO, SINCE THESE SHIPMENTS DID NOT CONSIST OF ANY OF THE ENUMERATED ARTICLES. THE "C" RATE BASIS NUMBER, ON THE OTHER HAND, IS PUBLISHED TO APPLY GENERALLY, EXCEPT IN THE RESTRICTED CIRCUMSTANCES IN WHICH THE "E" RATE BASIS NUMBERS APPLY.

ACCORDINGLY, SINCE THE "E" RATE BASIS NUMBERS ARE LIMITED TO APPLY ONLY IN RESTRICTED CIRCUMSTANCES NOT HERE INVOLVED, IT DOES NOT APPEAR THAT THE "E" RATE BASIS NO. 420, FOR WHICH YOU CONTEND, IS APPLICABLE TO THE PRESENT SHIPMENTS.

PRIOR TO THE MOVEMENT OF THE PRESENT SHIPMENTS THE RATES GOVERNED BY THE CLASSIFICATION PROPER, WHICH WERE PUBLISHED IN TARIFF NO. 1-B, WERE CANCELED, AND THOSE PUBLISHED IN TARIFF NO. 501 WERE THEREAFTER TO BE APPLIED TO SIMILAR SHIPMENTS TENDERED UNDER THE TERMS OF REGULARLY PUBLISHED TARIFFS. TARIFF NO. 501, HOWEVER, IS NOT A SUPPLEMENT TO TARIFF NO. 1-B, NOR IS IT A REISSUE OF TARIFF NO. 1-B, SINCE NEITHER TARIFF NO. 501 NOR THE REFERENCE THERETO IN TARIFF NO. 1-B INDICATES THAT THE RATES ARE BEING REISSUED, REPLENISHED, OR CARRIED FORWARD IN TARIFF NO. 501. ALSO, THE RATES GOVERNED BY THE CLASSIFICATION PROPER, WHICH WERE PUBLISHED IN TARIFF NO. 1-B, WERE CANCELED BY SUPPLEMENT 228 TO THAT TARIFF, AND RATES ONCE LAWFULLY CANCELED MAY NOT BE REINSTATED AS A REISSUED ITEM. FROST AND DAVIS LUMBER CO. V. ATLANTIC CITY R. CO., 146 I.C.C. 759, 760. IN ANY EVENT ALL DOUBTS AND ABMIGUITIES MUST BE RESOLVED IN FAVOR OF THE SHIPPER. SEE UNITED STATES. V. STRICKLAND TRANSPORTATION CO., 204 F.2D 325, 326. THEREFORE, IT APPEARS THAT THERE WERE NO RATES GOVERNED BY THE CLASSIFICATION PROPER IN EFFECT ON THESE SHIPMENTS IN TARIFF NO. 1-B OR SUPPLEMENTS OR REISSUES THEREOF ON THE DATE OF MOVEMENT AND THE FIRST-CLASS EXCEPTIONS RATE OF $1.49 PER HUNDRED POUNDS DERIVED BY APPLYING "C" RATE BASIS NO. H-121 WAS PROPERLY USED IN OUR AUDIT.

THE CHARGES ORIGINALLY CLAIMED AND PAID WERE COMPUTED ON THE TOTAL WEIGHT OF 111,000 POUNDS. HOWEVER, EACH BILL OF LADING CLEARLY SHOWS THAT 1,000 POUNDS OF THE TOTAL WEIGHT REPRESENTS DUNAGE. RULE 10 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-1, INCORPORATED INTO TENDER NO. 48 BY REFERENCE IN ITEM NO. 5 OF THE TENDER, PROVIDES:

UNLESS OTHERWISE PROVIDED, CHARGES SHALL BE COMPUTED ON GROSS WEIGHTS, EXCLUDING THE WEIGHT OF TEMPORARY FLOORING, BLOCKING, RACKS, STANDARDS, STAKES, OR SIMILAR BRACING, DUNNAGE OR SUPPORTS.

SINCE NOTHING TO THE CONTRARY APPEARS IN THE TENDER, IT DOES NOT APPEAR THAT FREIGHT CHARGES SHOULD HAVE BEEN PAID ON THE 1,000 POUNDS OF DUNNAGE. THIS HAS APPARENTLY BEEN REALIZED BY YOU, SINCE IT IS NOTED THAT YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES HAS BEEN COMPUTED ON A WEIGHT OF 110,000 POUNDS PER SHIPMENT RATHER THAN 111,000 POUNDS.

ACCORDINGLY, THIS RECORD IS BEING RETURNED TO OUR TRANSPORTATION DIVISION FOR CONSIDERATION AND, IF FOUND PROPER, THE ISSUANCE OF NOTICES OF OVERPAYMENT (1GAO FORMS 1003) FOR $14.92 PER SHIPMENT, OR A TOTAL OF $119.36 ON THE EIGHT SHIPMENTS INVOLVED.