B-153251, SEP. 18, 1964

B-153251, SEP. 18, 1964

TO NORTH AMERICAN VAN LINES, INC.:

WE REFER TO YOUR LETTER OF AUGUST 28, 1964, AND EARLIER LETTERS, CONCERNING YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT CERTIFICATE DATED AUGUST 29, 1963 (OUR CLAIM NO. TK-759386). THE SETTLEMENT DISALLOWED YOUR CLAIM FOR $380.25, THE ADDITIONAL FREIGHT CHARGES ALLEGEDLY DUE ON A SHIPMENT TRANSPORTED FROM MIDDLE RIVER, MARYLAND, TO LITTLETON, COLORADO, UNDER GOVERNMENT BILL OF LADING NO. A 9147004, IN MAY 1961.

BILL OF LADING NO. A 9147004 COVERS A SHIPMENT OF 20 PIECES OF ELECTRONIC EQUIPMENT WEIGHING A TOTAL OF 2,900 POUNDS. THE SHIPMENT WAS LOADED IN A 35-FOOT VAN (NO. K665). THE BODY OF THE BILL OF LADING CONTAINS THE ANNOTATION "LOADED TO FULL VISIBLE CUBICAL CAPACITY," AND THE PHRASE "ICC NO. 862 EFF 4-3-61" APPEARS IN THE "TARIFF OR SPECIAL RATE AUTHORITIES" SPACE. PAGE TWO OF THE BILL OF LADING CONTAINS THIS INFORMATION:

CHART

"EXCLUSIVE USE OF VEHICLE REQUESTED BY THE GOVT.

I CERTIFY THAT EXCLUSIVE USE OF VEHICLE WAS FURNISHED

FROM MARTINS--- BALTIMORE MD.

TO MARTIN LITTLETON COLO

DESTINATION CARRIER NORTH AMERICAN VAN LINES

SIGNATURE OF AGENT LESLIE WRAY NO. 495 (S)

RELEASED TO VALUE NOT EXCEEDING $ .30 PER LB

MAXIMUM VALUE

APPLICABLE TO THE LOWEST PUBLISHED RATE OR

CLASSIFICATION RATING

EXCLUSIVE USE OF VEHICLE 2500 CUB FT.

CAPACITY ORDERED BY SHIPPER

2600 CUB. FT. VAN FURNISHED BY CARRIER

SHIPMENT MOVING AT WEIGHT OF 17500 LBS.

ACTUAL WEIGHT 3198 LBS.

TWO DRIVERS AND SLEEPER CAR ARE AUTHORIZED TO

KEEP VEHICLE CONSTANTLY IN MOTION"

THE SPECIAL RATE AUTHORITY REFERRED TO ON THE BILL OF LADING IS NORTH AMERICAN VAN LINES, INC. RATE TENDER I.C.C. NO. 862, EFFECTIVE APRIL 3, 1961. IT APPLIES ON SHIPMENTS OF "LINK TRAINERS, SIMULATORS, RADAR, ELECTRONIC AND SCIENTIFIC INSTRUMENTS," TRANSPORTED BY NORTH AMERICAN VAN LINES FROM AND TO "ALL POINTS IN CONTINENTAL UNITED STATES," EXCEPT THOSE IN IDAHO AND MONTANA. PARAGRAPH 3E OF THE TENDER IS ENTITLED "LINE HAUL RATES" AND REFERS TO "MRT 1-SEC. V LESS 13 PERCENT; " PARAGRAPH 3F OF THE TENDER PROVIDES A MINIMUM WEIGHT OF "10,000 LB. TRUCKLOAD; " AND PARAGRAPH 4 OF THE TENDER IS ENTITLED "ACCESSORIAL SERVICES AND RATE OR CHARGE THEREFORE EFFECTIVE WITH THIS TENDER," AND REFERS TO "HHGS. BUR.-MRT NO. 1A.' THE ABBREVIATIONS "MRT I" AND "HHGS. BUR. MRT NO. 1-A" REFER TO HOUSEHOLD GOODS CARRIERS' BUREAU MILITARY RATE TARIFF NO. 1-A, I.C.C. NO. 17, WHICH IS ALSO A SPECIAL RATE TENDER.

THE ASSESSABLE FREIGHT CHARGES ON THIS SHIPMENT HAVE BEEN SETTLED ON THE BASIS OF THE PROVISIONS OF TENDERS NO. 862 AND MRT NO. 1-A. TO THE 10,000 POUND TRUCKLOAD MINIMUM WEIGHT SPECIFIED IN PARAGRAPH 3F OF THE TENDER, WE HAVE APPLIED THE APPROPRIATE RATE IN SECTION V OF THE MILITARY RATE TARIFF, LESS 13 PERCENT. YOU EXCEPT TO THIS BASIS URGING THAT THE APPLICABLE CHARGES ARE THOSE BASED PARTLY ON THE RATES IN SECTION V OF THE MILITARY RATE TARIFF, LESS 13 PERCENT, AND PARTLY ON THE EXCLUSIVE USE OF VEHICLE RULE PUBLISHED FOR YOUR ACCOUNT IN A TARIFF ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. IN YOUR VIEW TENDER NO. 862 INCORPORATES ALL OF THE PROVISIONS OF THE MILITARY RATE TARIFF, INCLUDING A PROVISION WHICH INCORPORATES BY REFERENCE THE CARRIERS' PUBLISHED TARIFF RULES AND REGULATIONS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. THE PUBLISHED TARIFF RULE WHICH YOU INDICATE MUST BE GIVEN EFFECT IS THE EXCLUSIVE USE OF VEHICLE RULE IN HOUSEHOLD GOODS CARRIERS' BUREAU TARIFF NO. 78-B, MF-I.C.C. NO. 90. TARIFF NO. 84-B, CITED IN YOUR LETTER OF JANUARY 7, 1964, DID NOT BECOME EFFECTIVE UNTIL JUNE 15, 1961. SEE SUPPLEMENT NO. 2 TO TARIFF NO. 84-B.

WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS PRESENTED IN YOUR LETTERS AND HAVE CONCLUDED THAT THE ALLOWABLE FREIGHT CHARGES ON THIS SHIPMENT SHOULD BE THOSE BASED ON THE PROVISIONS OF TENDER NO. 862 AND MILITARY RATE TARIFF NO. 1-A.

TENDER NO. 862, WHICH WAS VOLUNTARILY MADE TO THE GOVERNMENT PURSUANT TO SECTION 22 OF THE INTERSTATE COMMERCE ACT, IS A CONTINUING UNILATERAL OFFER WHICH, AS PROVIDED IN ITEM 8 THEREOF, RIPENS INTO AN AGREEMENT OR CONTRACT WHEN ACCEPTED BY THE GOVERNMENT "BY MAKING ANY SHIPMENT OR SETTLEMENT" UNDER ITS TERMS. AS SUCH, IT IS SUBJECT TO INTERPRETATION ACCORDING TO ESTABLISHED PRINCIPLES OF CONTRACT LAW. SINCE THE FUNDAMENTAL PURPOSE OF CONSTRUING A CONTRACT IS TO ACCOMPLISH THE INTENTION OF THE PARTIES (THE BINGHAMTON BRIDGE, 70 U.S. 51, 74), EFFECT MUST BE GIVEN NOT ONLY TO SPECIFIC LANGUAGE BUT ALSO TO NECESSARY IMPLICATIONS OF THE CONTRACT TERMS. IT SHOULD NOT BE SO NARROWLY OR TECHNICALLY INTERPRETED AS TO FRUSTRATE ITS OBVIOUS DESIGN (NEVADA HALF MOON MINING COMPANY V. COMBINED METALS REDUCTION COMPANY, 176 F.2D 73, CERTIORARI DENIED, 338 U.S. 943), BUT SHOULD BE GIVEN A MEANING IN THE LIGHT OF THE CONDITIONS UNDER WHICH IT WAS SUBMITTED AND IN THE LIGHT OF THE PRINCIPAL APPARENT PURPOSE THAT IT WAS INTENDED TO SERVE. THOMPSON V. BALTIMORE AND OHIO RAILROAD COMPANY, 59 F.SUPP. 21, 35; MODIFIED 155 F.2D 767; CERTIORARI DENIED 329 U.S. 762.

APPLYING THESE PRINCIPLES TO TENDER NO. 862, IT SEEMS APPARENT THAT, BY ITS OFFER, NORTH AMERICAN VAN LINES INTENDED TO AFFORD THE UNITED STATES A PREFERENTIAL RATE BASIS ON HIGH-VALUE COMMODITIES TRANSPORTED IN VANS THAT FOR THE MUTUAL PROTECTION OF CARRIER AND SHIPPER PRESUMABLY WOULD BE SEALED. IN THIS INSTANCE THE CAPACITY LOAD ORDINARILY WOULD ENTAIL SEALING THE VAN OR AT LEAST INHIBIT REARRANGING, TRANSFERRING THE RELATIVELY DELICATE LOAD OF EQUIPMENT TO ANOTHER VAN, OR COMMINGLING IT WITH ARTICLES EN ROUTE. BY THEIR VERY NATURE THE ELECTRICAL AND SCIENTIFIC ARTICLES COVERED BY THE TENDER WERE TO BE ACCORDED FULL TRUCKLOAD HANDLING. TENDER NO. 862 IS SILENT AS TO THE APPLICABILITY OF THE PROVISIONS OF THE MILITARY RATE TARIFF EXCEPT WHERE THEY RELATE TO SECTION V OR TO THE RATES AND CHARGES FOR ACCESSORIAL SERVICES. THE ACCESSORIAL SERVICES ARE THOSE DESCRIBED IN SECTION II OF THE MILITARY RATE TARIFF AS "ADDITIONAL SERVICES," AND THEY DO NOT INCLUDE THE SO- CALLED EXCLUSIVE USE SERVICES.

IF IT WAS THE CARRIER'S INTENTION TO INCORPORATE OTHER PROVISIONS OF THE MILITARY RATE TARIFF, INCLUDING THE PROVISIONS RELATING TO INCORPORATION OF THE CARRIER'S PUBLISHED AND FILED TARIFF RULES ORDINARILY APPLICABLE TO TRANSPORTATION FOR THE GENERAL PUBLIC, IT COULD HAVE DONE SO BY APPROPRIATE PROVISIONS IN TENDER NO. 862. WHILE THE BILL OF LADING ANNOTATIONS ARE QUITE COMPLETE IN DESIGNATING EXCLUSIVE USE SERVICE, THE BILL OF LADING CONTRACT IS SUBJECT TO THE PROVISIONS OF TENDER NO. 862 WHICH, AS WE HAVE INDICATED, DOES NOT AUTHORIZE PAYMENT FOR MORE THAN THE CONSTRUCTIVE WEIGHT OF 10,000 POUNDS. WE NOTE THAT A PAYMENT OF $96 WAS MADE TO YOUR COMPANY ON A SEPARATE VOUCHER FOR THE EXTRA DRIVER INVOLVED.

THE REFERENCE IN YOUR LETTER OF JANUARY 7, 1964, TO CAMPBELL "66" EXPRESS, INC. V. UNITED STATES, 302 F.2D 270, APPARENTLY WAS PROMPTED BY OUR TRANSPORTATION DIVISION'S REFERENCE TO THE FACT THAT THE VEHICLE USED WAS FULLY LOADED AND TO CURTIS LIGHTING, INC. V. MID-STATES FREIGHT LINES, 303 I.C.C. 576. HOWEVER, THESE CASES DO NOT SEEM PERTINENT TO THE PRESENT SITUATION SINCE BOTH OF THEM INVOLVE THE CONSTRUCTION OF EXCLUSIVE USE OF VEHICLE RULES IN GENERAL COMMODITY CARRIER TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION. IT WAS NOT DISPUTED IN THOSE CASES THAT SOME PUBLISHED TARIFF CHARGE BASIS WAS APPLICABLE. HERE, THE QUESTION DOES NOT INVOLVE THE CONSTRUCTION OF TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION; IT INVOLVES THE CONSTRUCTION OF A GOVERNMENT BILL OF LADING CONTRACT INCORPORATING BY REFERENCE THE PROVISIONS OF TENDER NO. 862, A REDUCED RATE BASIS OFFERED TO THE GOVERNMENT UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT.

THE NAVAJO FREIGHT LINES SUIT, MENTIONED IN YOUR LETTER OF AUGUST 28,1964, IS PROBABLY NAVAJO FREIGHT LINES, INC. V. UNITED STATES, NO. 7246, UNITED STATES COURT OF APPEALS, TENTH CIRCUIT, AN APPEAL (SUBSEQUENTLY WITHDRAWN) FILED BY THE UNITED STATES FROM THE DECISION RENDERED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO IN CIVIL ACTION NO. 6753. THAT SUIT INVOLVED THE CONSTRUCTION OF AN EXCLUSIVE USE OF VEHICLE RULE IN A CARRIER TARIFF (COVERING GENERAL COMMODITIES) ON FILE WITH THE INTERSTATE COMMERCE COMMISSION AND IS NOT ACCEPTABLE AS CONTROLLING THE DISPOSITION OF THIS CASE.

WE NOTE THAT THE ISSUE IN THIS INSTANCE IS ALSO INVOLVED IN PAN AMERICAN VAN LINES, INC. V. UNITED STATES, CT.CL. NO. 333-63, NOW PENDING IN THE COURT OF CLAIMS. IF THE FINAL DECISION OF THE COURT ON THE ISSUE IS AGAINST THE UNITED STATES, WE WILL, AT YOUR WRITTEN REQUEST, RECONSIDER THE ACTION TAKEN HEREIN.

THE SETTLEMENT OF AUGUST 29, 1963, WHICH DISALLOWED YOUR CLAIM, HAS NOT BEEN SHOWN TO HAVE BEEN IN ERROR AND, ACCORDINGLY, IT IS SUSTAINED.