B-166586, B-167027, B-167029, B-167336, B-167348, B-167438, OCT. 21, 1969

B-166586, B-167027, B-167029, B-167336, B-167348, B-167438, OCT. 21, 1969

ROUTES--THROUGH--COMBINATION V THROUGH ROUTES ON EXPLOSIVES SHIPMENTS FROM MACON, GA. TO CRANE, IND; WHERE CARRIER CLAIMED COMBINATION OF MILEAGE RATES BASED ON 411 MILES TO DUBLIN, VA; THENCE 490 MILES TO CRANE, GENERAL ACCOUNTING OFFICE PROPERLY CONSTRUCTED COMBINATION THROUGH RATE BASED ON 599 SHORTLINE MILES TO DAYTON, OHIO, IN ACCORDANCE WITH CARRIER'S TENDER I.C.C.-118-B, ROUTE 1, PLUS 192 SHORTLINE MILES TO CRANE, AS AUTHORIZED IN CIW 56, OVER BLUE FIELD, W. VA. (WHERE BOTH CARRIERS PUBLISH OPERATING RIGHTS), TO TOTAL 725 MILES OR 25 MILES LESS THAN 125-PERCENT CIRCUITY LIMITATION IN QUOTATION 118-B, AND MILEAGE OVER ACTUAL ROUTE OF MOVEMENT WAS IMMATERIAL FOR COMPUTATION OF CHARGES, WHICH ARE BASED ON SHORTLINE MILEAGE BETWEEN ORIGIN AND DESTINATION AS PROVIDED IN RULES OF GOVERNING MILEAGE GUIDES.

TO C.I. WHITTEN TRANSFER COMPANY:

SUBJECT: GAO FILE CARRIER'S

NO. BILL NO.

TK-883674 5087

TK-883679 5130

TK-885648 5105

TK-883678 5076

TK-885086 5113

TK-883677 5060

TK-883676 5094

TK-884498 5126

TK-881421 4970

TK-888046 5207-A

TK-887787 5218-A

TK-887790 5242-A

TK-887791 5261-A

TK-887792 5277-A

TK-8885595083-SUPP.

TK-886007 5276-SUPPS. 1 AND 2

TK-886008 5268-SUPPS. 1 AND 2

TK-886003 5305-SUPPS. 1 AND 2

TK-886602 5175-SUPP.

TK-885924 5165-SUPPS. 2 AND 3

TK-885925 5162-SUPP.

TK-885923 5181-SUPP.

TK-885922 5209-SUPP.

TK-885920 5229-SUPP.

TK-885917 5251-SUPP.

TK-885842 5259-SUPPS. 1 AND 2

TK-885919 5244-SUPP.

TK-886006 5287-SUPPS. 1 AND 2

TK-885918 5247-SUPP.

TK-881317 5397-SUPP.

TK-885921 5224-SUPP.

TK-887789 5230-A

TK-888807 5364-A

TK-889727 5923-A

TK-890138 5183-B

TK-890992 5160-A

TK-891119 5278-A

IN YOUR SEVERAL LETTERS CONCERNING THE SUBJECT CLAIMS, YOU REQUEST REVIEW OF THE DISALLOWANCES OF YOUR CLAIMS FOR ADDITIONAL CHARGES ALLEGED TO BE DUE ON EACH OF NUMEROUS SHIPMENTS OF EXPLOSIVES BETWEEN VARIOUS POINTS OF ORIGIN AND DESTINATION, LOCALLY VIA C.I. WHITTEN TRANSFER COMPANY, OR JOINTLY WITH OTHER CARRIERS BETWEEN NOVEMBER 1966 AND SEPTEMBER 7, 1967.

FOR THE SERVICES PERFORMED -- WITH THE EXCEPTION OF THE SHIPMENTS FROM MACON, GEORGIA, TO CRANE, INDIANA, DISCUSSED MORE FULLY HEREINAFTER -- YOU ORIGINALLY CLAIMED AND WERE PAID, PRIOR TO AUDIT BY THE GENERAL ACCOUNTING OFFICE, FREIGHT CHARGES COMPUTED ON THE BASES OF THE MILEAGE RATES NAMED IN C.I. WHITTEN EXPLOSIVES TARIFF, MF-I.C.C. 53 OR 56 (HEREAFTER CIW 53 OR 56) FOR THE MILEAGE OVER THE ACTUAL ROUTE OF MOVEMENT. THE APPLICABLE TARIFF DEPENDS ON THE DATE OF MOVEMENT. CIW 56 WAS EFFECTIVE ON AND AFTER DECEMBER 31, 1966. CIW 53 WAS IN EFFECT AS TO THE INVOLVED EARLIER SHIPMENTS.

ON AUDIT OF THE PAYMENT VOUCHERS OUR OFFICE ISSUED NOTICES OF OVERCHARGE (FORM 1003) FOR REFUND OF OVERCHARGES RESULTING FROM THE APPLICATION OF RATES COMPUTED BY APPLYING THE SHORTLINE MILEAGE BETWEEN ORIGINS AND DESTINATIONS, DERIVED FROM HOUSEHOLD MILEAGE GUIDES ISSUED BY HOUSEHOLD GOODS CARRIERS BUREAU, TO THE TABLE OF MILEAGE RATES SET OUT IN THE C.I. WHITTEN'S TARIFFS APPLICABLE ON THE DATE OF THE MOVEMENT AND THE CHARGES WERE ADJUSTED ACCORDINGLY.

IN YOUR REQUESTS FOR REVIEW OF DISALLOWANCES OF YOUR SUPPLEMENTAL CLAIMS BASED ON THE MILEAGE OVER THE ACTUAL ROUTE OF MOVEMENT, YOU CONTEND THAT IN USING THE SHORTLINE MILEAGE FROM ORIGIN TO DESTINATION ACCORDING TO THE HOUSEHOLD GOODS MILEAGE GUIDE, OUR OFFICE HAS: (1) FAILED TO TAKE INTO CONSIDERATION THE MILEAGE VIA THE INTERCHANGE POINT WITH THE CONNECTING CARRIER; (2) FAILED TO TAKE INTO CONSIDERATION THE PROVISIONS OF ITEMS 130 OF TARIFFS CIW 53 AND 56, PROVIDING FOR APPLICABILITY OF THE RATES OVER THE ROUTES AUTHORIZED; (3) FAILED TO RECOGNIZE THE ROUTES AUTHORIZED BY ITEMS 220 OF THE TWO TARIFFS; AND (4) FAILED TO TAKE INTO CONSIDERATION THE FIRST PARAGRAPH OF ITEMS 10 IN THE TARIFFS.

ITEMS 10 OF BOTH TARIFFS ARE IDENTICAL AND ARE ENTITLED,"PARTICIPATING CARRIERS OPERATING AUTHORITY," AND THE FIRST PARAGRAPH STATES:

"THE RATES, RULES AND PROVISIONS PUBLISHED IN TARIFF, OR AS AMENDED, APPLY ON BEHALF OF PARTICIPATING CARRIERS, ONLY TO THE EXTENT OF THE AUTHORIZED OPERATING RIGHTS AS SET FORTH IN ITEMS NO. 10 THROUGH 35 AND AMENDMENTS THERETO, AND DO NOT APPLY FROM OR TO ANY POINT OR PLACE NOT AUTHORIZED.' THE ITEM THEN SETS FORTH, UNDER THE PARTICULAR CERTIFICATE NUMBERS, THE OPERATING AUTHORITIES OF THE CARRIERS PARTY TO THE TARIFF. THIS ITEM NOTIFIES THE SHIPPER OF THE TERRITORY WHICH THE PARTICIPATING CARRIERS MAY SERVE.

ITEM 130, OF BOTH TARIFFS ENTITLED,"APPLICATION OF -THROUGH- RATES," PROVIDES:

"THE RATES PUBLISHED IN THIS TARIFF FOR LOCAL OR JOINT APPLICATION ON THE COMMODITY TRANSPORTED OR TO BE TRANSPORTED OVER ANY ROUTE FROM POINT OF ORIGIN TO DESTINATION IS THE APPLICABLE RATE OF THE PARTICIPATING CARRIERS OVER THE ROUTE AUTHORIZED NOTWITHSTANDING THAT IT MAY BE HIGHER THAN THE AGGREGATE OF INTERMEDIATE RATES OVER THE SAME ROUTE.' AND ITEM 220, OF BOTH TARIFFS TITLED,"ROUTES OVER WHICH RATES NAMED HEREIN APPLY," NAMES POINTS BETWEEN WHICH THE RATES APPLY VIA "/A) C.I. WHITTEN TRANSFER COMPANY," ALONE, INCLUDING OHIO, VIRGINIA, WEST VIRGINIA, AND INDIANA, (B) C.I. WHITTEN TRANSFER COMPANY (RICHMOND, KENTUCKY, OR CHARLOTTE, NORTH CAROLINA,) - HUGHES TRANSPORTATION, INC., AND (C) C.I. WHITTEN TRANSFER COMPANY (LOUISVILLE, KENTUCKY,) - FALLS CITIES TRANSFER AND STORAGE COMPANY, INCORPORATED.

IT IS YOUR POSITION THAT:

"IN ORDER TO DETERMINE THE APPLICABLE RATE OVER THE ROUTE AUTHORIZED (AS PROVIDED IN ITEM 130 AND DEFINED IN ITEMS 10 AND 220) IT IS FIRST NECESSARY TO COMPUTE THE MILEAGE OVER THAT ROUTE. THE RESULTANT MILEAGE, WHEN APPLIED TO THE APPROPRIATE RATE TABLE IN THE TARIFF, THEN DETERMINES THE APPLICABLE RATE.' HOWEVER, ITEM 130 MERELY PROVIDES THAT THE RATES PUBLISHED IN THE TARIFFS OVER THE ROUTES AUTHORIZED ARE THE APPLICABLE RATES, NOTWITHSTANDING THE FACT THAT THEY MAY BE HIGHER THAN THE AGGREGATE OF INTERMEDIATE RATES OVER THE SAME ROUTES.

ITEM 50 OF THE TWO TARIFFS, ENTITLED,"GOVERNING PUBLICATIONS," INCORPORATES, EXCEPT AS PROVIDED IN THE TWO TARIFFS, THE HOUSEHOLD GOODS CARRIERS BUREAU, INC., MILEAGE GUIDE. WE FIND NO PROVISION IN THE TWO TARIFFS WHICH PRECLUDES APPLICATION OF THE HOUSEHOLD GOODS CARRIERS BUREAU, INC., MILEAGE GUIDE AND HENCE SUCH GUIDE IS INCORPORATED BY REFERENCE IN THE TARIFFS. RULES FOR THE DETERMINATION OF MILEAGE ARE SPECIFICALLY SET FORTH IN THE MILEAGE GUIDE. UNDER THE STATEMENT AS TO GENERAL PURPOSE, THE MILEAGE GUIDES STATE: "EVERY REASONABLE SCIENTIFIC EFFORT HAS BEEN EMPLOYED TO DEVELOP MILEAGES BETWEEN ALL POINTS VIA THE SHORTEST PRACTICAL TRUCK ROUTES. * * *" AND, UNDER THE HEADING,"RULES -- MANNER OF USE," THE MILEAGE GUIDES PROVIDE, IN PART, AS FOLLOWS:

"* * * DISTANCES BETWEEN ANY TWO POINTS SHALL BE DETERMINED BY USE OF THE FOLLOWING RULES REGARDLESS OF MILEAGE THAT MAY BE DETERMINED TO EXIST BY OTHER METHODS OF COMPILATION AND REGARDLESS OF ACTUAL ROUTE WHICH CARRIER MAY SELECT TO PERFORM THE TRANSPORTATION SERVICE.'

THE RULES OF THE MILEAGE GUIDES WERE FOLLOWED BY OUR OFFICE IN THE AUDIT, AND WE FIND NOTHING WHICH WOULD WARRANT ANY DIFFERENT METHOD OF COMPUTATION IN YOUR TARIFFS AT THE TIME THE INVOLVED SHIPMENTS MOVED. ITEMS 10 AND 220 TO WHICH YOU REFER CONCERN AUTHORIZED SERVICE AND ROUTES, BUT HAVE NO EFFECT ON THE COMPUTATION OF CHARGES. SIMILAR TARIFF PROVISIONS WERE THE SUBJECT OF CONTROVERSY IN M.I. O-BOYLE AND SON, INC., V UNITED STATES, 157 CT. CL. 603 (1962) IN WHICH THE COURT HELD THAT UNDER SUCH PROVISIONS THE SHORTEST ROUTE IS TO BE USED FOR RATE-MAKING PURPOSES, REGARDLESS OF WHETHER IT IS THE ACTUAL ROUTE CHOSEN BY THE CARRIER.

INCLUDED IN YOUR LETTERS ARE REQUESTS FOR REVIEW OF DISALLOWANCES OF CLAIMS ON APPROXIMATELY 22 SHIPMENTS OF EXPLOSIVES FROM MACON, GEORGIA, TO CRANE, INDIANA. SINCE NO THROUGH RATE WAS PUBLISHED FOR THIS SERVICE, YOU CLAIM A COMBINATION OF MILEAGE RATES BASED UPON 411 MILES MACON, GEORGIA, TO DUBLIN, VIRGINIA, USING BAGGETT TRANSPORTATION COMPANY'S TARIFF NO. 15, MF-I.C.C. 130 (BAGGETT TARIFF 15 WAS NOT IN EFFECT AT TIME OF THE MOVEMENTS; HOWEVER, TARIFF 11, MF-I.C.C. 125 WAS IN EFFECT AND CONTAINS THE SAME AUTHORITY GENERALLY AS TARIFF 15); THENCE, 490 MILES DUBLIN, VIRGINIA, TO CRANE, INDIANA, PUBLISHED IN CIW 56.

ON AUDIT OF THE VOUCHERS OUR OFFICE CONSTRUCTED A COMBINATION THROUGH RATE COMPOSED OF $2.72 PER 100 POUNDS, MINIMUM WEIGHT 22,000 POUNDS, BASED ON 599 SHORTLINE MILES MACON, GEORGIA, TO DAYTON, OHIO, PUBLISHED IN CENTRAL AND SOUTHERN MOTOR TARIFF BUREAU AGENT, TARIFF 100 D, MF-I.C.C. 287, RATE BASE 606, IN ACCORDANCE WITH THE PROVISIONS SET FORTH IN C.I. WHITTEN TENDER I.C.C. 118-B, ROUTE 1; PLUS $1.68 PER 100 POUNDS, MINIMUM WEIGHT 22,000 POUNDS, BASED ON 192 SHORTLINE MILES DAYTON, OHIO, TO CRANE, INDIANA, AS AUTHORIZED IN CIW 56. ROUTE 1 IN PARAGRAPH 13, CIW TENDER I.C.C. 118-B IS SET FORTH AS: "/1) BAGGETT TRANSPORTATION COMPANY - C.I. WHITTEN TRANSFER MPANY.'

YOU CONTEND THAT QUOTATION 118-B IS INAPPLICABLE UNDER THE PROVISIONS OF NOTE 8, ITEM 13. NOTE 8, ITEM 13, C.I. WHITTEN TENDER I.C.C. 118-B, PROVIDES:

"NO ROUTE IN THIS TENDER SHALL APPLY WHERE THE USE OF SUCH ROUTE CAUSES CIRCUITY IN EXCESS OF 25 PERCENT OF THE SHORTEST MILEAGE BETWEEN ORIGIN AND DESTINATION USING MILEAGE GUIDE NO. 8, MF-I.C.C. 139, FOR THE COMPUTATION OF THE MILEAGE.' YOU ALLEGE THE ROUTING VIA DAYTON, OHIO, IS EXCESSIVELY CIRCUITOUS BECAUSE,"THE SHORT LINE MILEAGE FROM MACON, GEORGIA TO DAYTON, OHIO, IS, 599, WHICH ALLOWS FOR 125 PERCENT CIRCUITY AMOUNTING TO 750 MILES. THE MILEAGE VIA BAGGETT TRANSPORTATION O., FROM MACON, GEORGIA, TO DUBLIN, VIRGINIA, POINT OF INTERCHANGE WITH WHITTEN TRANSFER CO., IS 411 MILES" AND "THE DISTANCE FROM DUBLIN VIA WHITTEN TO DAYTON IS 399 MILES FOR A TOTAL OF 810 MILES.'

OUR OFFICE, HOWEVER, COMPUTED THE MILEAGE FROM MACON TO DAYTON OVER BLUE FIELD, WEST VIRGINIA, SINCE BOTH BAGGETT TRANSPORTATION COMPANY (BAGGETT) AND C.I. WHITTEN PUBLISH OPERATING RIGHTS AT BLUE FIELD IN BAGGETT TARIFF NO. 14, MF-I.C.C. 128. COMPUTED OVER BLUE FIELD THE MILEAGE IS 420 MILES FROM MACON, GEORGIA, TO BLUE FIELD AND 305 MILES FROM BLUE FIELD TO DAYTON, OHIO, FOR A TOTAL OF 725 MILES, OR LESS THAN 125 PERCENT CIRCUITY.

IN YOUR REQUEST FOR REVIEW YOU PROTEST THE COMPUTATION OF MILEAGE OVER BLUE FIELD, STATING:

"* * * ITEM 660 OF THIS TARIFF (BAGGETT TARIFF 14) PROVIDES FOR ROUTES OVER WHICH THE RATES APPLY, AND NO THROUGH ROUTE IS PUBLISHED BETWEEN THESE POINTS.' HOWEVER, NEMOURS, WEST VIRGINIA, IS 7 MILES FROM BLUE FIELD IN THE ROUTE OF MOVEMENT. ITEM 660, BAGGETT TARIFF 14, PARAGRAPH (D) SPECIFICALLY PROVIDES A ROUTE BETWEEN POINTS IN GEORGIA AND POINTS IN OHIO VIA C.I. WHITTEN WITH INTERCHANGE AT NEMOURS, WEST VIRGINIA. COMPUTED OVER NEMOURS THE MILEAGE IS 420 MILES MACON, GEORGIA, TO BLUE FIELD, WEST VIRGINIA, 7 MILES BLUE FIELD TO NEMOURS, WEST VIRGINIA, AND 298 MILES NEMOURS TO DAYTON, OHIO, FOR A TOTAL OF 725 MILES, WHICH IS 25 MILES LESS THAN THE MAXIMUM CIRCUITY. THEREFORE, CIW TENDER 118-B IS APPLICABLE.

YOU ALSO ALLEGE THAT:

"* * * THE 192 MILES FROM DAYTON, OHIO, TO CRANE, INDIANA, UPON WHICH THE CLAIM (OF THE GOVERNMENT) IS BASED IS ERRONEOUS. IT IS NECESSARY IN SUCH A MOVEMENT FOR WHITTEN TO TRANSPORT THE SHIPMENT FROM A POINT IN OHIO TO A POINT IN KENTUCKY WITHIN THE COMMERCIAL ZONE OF EVANSVILLE, INDIANA UNDER ITS SUB-NO. 2, AND FROM EVANSVILLE TO CRANE UNDER ITS SUB-NO. 85. SUCH A MOVEMENT WOULD TOTAL 443 MILES * * *.' AS ALREADY SHOWN, HOWEVER, THE MILEAGE OVER THE ACTUAL ROUTE OF MOVEMENT IS IMMATERIAL FOR THE COMPUTATION OF CHARGES, WHICH ARE BASED ON THE SHORTLINE MILEAGE BETWEEN ORIGIN AND DESTINATION AS PROVIDED IN THE RULES OF THE GOVERNING MILEAGE GUIDES.