B-143200, NOV. 14, 1960

B-143200, NOV. 14, 1960

TO TRI-STATE TRUCKING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1960, RELATIVE TO THE DISALLOWANCE OF YOUR CLAIMS NOS. 238-A, 301-A AND 312-A FOR THE AMOUNTS OF $83.99, $79.99 AND $80.01, RESPECTIVELY, REPRESENTING AMOUNTS COLLECTED BY SETOFF TO EFFECT COLLECTION OF OVERPAYMENTS MADE TO YOU IN MAKING PAYMENT FOR THE TRANSPORTATION OF CERTAIN VOLUME SHIPMENTS OF AMMUNITION FOR CANNON FROM DEFENSE, TEXAS, TO FORT SILL, OKLAHOMA, IN OCTOBER AND NOVEMBER 1956 AND JULY 1957.

THE SITUATION AS TO YOUR BILL NO. 312-A SEEMS TO BE REPRESENTATIVE OF THE QUESTION RAISED AS TO YOUR THREE BILLS. INCLUDED IN THIS BILL WERE CHARGES ON BILLS OF LADING WY-6264591 AND WY-6264702 COVERING A COMPLETE VOLUME SHIPMENT OF APPROXIMATELY 61,628 POUNDS. THE SHIPMENT WAS TRANSPORTED IN TWO TRUCKS, EACH TRUCK BEING LOADED WITH AN INDICATED WEIGHT OF 30,814 POUNDS. THE SECOND BILL IS PROPERLY CROSS REFERENCED TO THE FIRST BILL OF LADING AS REQUIRED BY PARAGRAPH (1) OF NOTE 3 OF ITEM 145 OF AGENT J. D. HUGHETT'S TARIFF NO. 1000-P, RATE QUOTATION ON U.S. GOVERNMENT FREIGHT, IN ORDER TO OBTAIN THE BENEFIT OF THE VOLUME RATE NAMED IN THIS ITEM. FOR THAT PART OF THE SHIPMENT TRANSPORTED ON BILL OF LADING NO. WY-6264591 YOU CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF THE COLUMN ONE (1) RATE OF $1.01 PER 100 POUNDS AT THE ACTUAL WEIGHT OF 30,814 POUNDS. FOR THAT PART OF THE SHIPMENT TRANSPORTED ON BILL OF LADING NO. WY-6264702 THE CHARGES WERE COMPUTED AT THE COLUMN ONE (1) RATE OF $1.01 PER 100 POUNDS AT THE DEFICIT WEIGHT SHOWN AS 9,186 POUNDS, TO MAKE 40,000 POUNDS, AND TO THE BALANCE OF THE WEIGHT, 21,628 POUNDS, ON THAT BILL OF LADING THE COLUMN TWO (2) RATE OF 81 CENTS PER 100 POUNDS WAS APPLIED.

IN THE AUDIT OF THE PAYMENT VOUCHERS COVERING THESE SHIPMENTS WE DETERMINED THAT THE CORRECT CHARGES SHOULD BE COMPUTED ON THE BASIS OF THE COLUMN (2) RATE OF 81 CENTS PER 100 POUNDS APPLIED TO 30,814 POUNDS ON EACH OF THE BILLS OF LADING. YOU NOW CONTEND THAT THE CORRECT INTERPRETATION OF ITEM 145 REQUIRES THE APPLICATION OF THE COLUMN ONE (1) RATE ON THE FIRST 40,000 POUNDS OF A VOLUME SHIPMENT AND THE COLUMN TWO (2) RATE ON THE EXCESS OVER 40,000 POUNDS. ITEM NO. 145 OF AGENT J. D. HUGHETT'S TARIFF NO. 1000-P--- RATE QUOTATIONS ON U.S. GOVERNMENT FREIGHT- -- IS, IN PERTINENT PART, AS FOLLOWS:

TABLE

"AMMUNITION, EXPLOSIVES AND/OR FIREWORKS

COL. 1--- MINIMUM WEIGHT 40,000 POUNDS.

COL. 2--- APPLIES ON WEIGHT IN EXCESS OF 40,000 POUNDS SHIPPED AT

SAME TIME.

COL. 1 COL. 2

DEFENSE, TEX FT. SILL * * * OKLA. (R) 101(R) 81 (NOTE 3)

"NOTE 3--- VOLUME MINIMUM WEIGHT 60,000 POUNDS, SUBJECT TO MINIMUM

OF 30,000 LBS. ON EACH VEHICLE USED AND TO THE FOLLOWING

PROVISIONS:

(1) RATES NAMED IN CONNECTION WITH VOLUME MINIMUM WEIGHTS

APPLY ONLY WHEN A VOLUME OF THE COMMODITIES NAMED IS SHIPPED

FROM ONE POINT (OR PLACES WITHIN ONE PLANT OR INSTALLATION)

IN ONE DAY BY ONE SHIPPER ON ONE BILL OF LADING (OR ON TWO

OR MORE BILLS OF LADING EACH CARRYING A CROSS REFERENCE

NOTATION TO THE FIRST BILL OF LADING IN EACH SERIES) FOR

DELIVERY TO ONE CONSIGNEE AT ONE DESTINATION. SUBJECT TO

PARAGRAPH (3) BELOW:

(2) CHARGES ON SHIPMENTS MOVING UNDER RATES NAMED IN

CONNECTION WITH VOLUME MINIMUM WEIGHTS WILL BE ASSESSED

AT THE VOLUME MINIMUM WEIGHT SHOWN, EXCEPT THAT THE

ACTUAL WEIGHT WILL APPLY WHEN IN EXCESS OF THE VOLUME

MINIMUM WEIGHTS. SUBJECT TO PARAGRAPH (3) BELOW.

(3) RATES NAMED IN CONNECTION WITH VOLUME MINIMUM WEIGHTS

WILL APPLY ON NOT TO EXCEED FOUR (4) TRUCKLOADS TO EACH

VOLUME SHIPMENT.'

THE WORDING IN THIS ITEM FAILS TO INDICATE CLEARLY THAT THE RATE IN COLUMN 2 IS DEPENDENT UPON THE APPLICATION OF THE COLUMN 1 RATE. THE ONLY RESTRICTIONS ON THE USE OF THE COLUMN 2 RATE CONTAINED IN NOTE 3 REQUIRE A VOLUME MINIMUM WEIGHT OF 60,000 POUNDS, WITH A MINIMUM OF 30,000 POUNDS FOR EACH VEHICLE USED, AND A MAXIMUM OF FOUR (4) TRUCKLOADS FOR EACH VOLUME SHIPMENT. IN THIS CONNECTION, IT SEEMS THAT IF THERE IS ANY RELATIONSHIP BETWEEN THE COLUMN 1 AND COLUMN 2 RATES, IT WOULD BE FOR CONSIDERATION IN CONNECTION WITH A SHIPMENT WEIGHING MORE THAN 40,000 POUNDS, BUT LESS THAN 60,000 POUNDS. YOUR VIEW, IF GIVEN EFFECT, AS TO THE APPLICATION OF THE COLUMN 1 RATE TO A SHIPMENT WEIGHING MORE THAN 60,000 POUNDS AND OTHERWISE WITHIN THE LIMITATIONS PROVIDED IN NOTE 3, WOULD RESULT IN A PATENT AMBIGUITY, INASMUCH AS NOTE 3 DEFINITELY ASSOCIATES THE COLUMN 2 RATE WITH A 60,000 POUNDS MINIMUM WEIGHT FOR WHICH THE SHIPPER WOULD HAVE TO PAY IN ORDER TO OBTAIN THE 81-CENT RATE.

IT HAS BEEN A RULE OF LONG STANDING THAT TARIFFS MUST BE EXPRESSED IN CLEAR AND PLAIN TERMS, SO THAT THOSE DEALING WITH THEM, AND GOVERNED BY THEM, MAY UNDERSTAND THEM AND ACT ACCORDINGLY. GENERALLY, IF THEY ARE AMBIGUOUS, AS IN THIS CASE WHERE THE RATE ITEM IS SUSCEPTIBLE TO TWO INTERPRETATIONS, THE SHIPPER MAY CONSTRUE THE ITEM IN A WAY MOST FAVORABLE TO HIMSELF, AS THE TERMS OF THE INSTRUMENT PERMIT. SWIFT AND CO. V. UNITED STATES, 255 FED. 291. SEE, ALSO, SOUTHERN PACIFIC COMPANY V. LATHROP, 15 F.2D 486; AMERICAN RY. EXPRESS CO. V. PRICE BROS., INC., 54 F.2D 67. THE SAME RULES OF CONSTRUCTION ARE EQUALLY PERTINENT IN THE PRESENT INSTANCE, WHICH INVOLVES A QUOTATION SUBMITTED BY THE CARRIERS UNDER SECTIONS 22 AND 217 (B) OF THE INTERSTATE COMMERCE ACT.

IN VIEW OF THE FOREGOING COMMENTS, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED. SEE, IN THIS CONNECTION, THE ATTACHED COPY OF OUR DECISION OF FEBRUARY 8, 1960, B-141031, TO THE STRICKLAND TRANSPORTATION COMPANY, INC., INVOLVING CONSTRUCTION OF A SIMILAR SECTION 22 QUOTATION.