B-177127, MAR 27, 1973, 52 COMP GEN 612

B-177127, MAR 27, 1973, 52 COMP GEN 612

TRANSPORTATION - RATES - SPACE RESERVATION - ACTUAL V. CONSTRUCTIVE WEIGHT RATE BASE ON A SHIPMENT OF FABRICATED TEST STRUCTURES FROM DEER PARK, LONG ISLAND, NEW YORK, TO WRIGHT PATTERSON AFB, OHIO, ON A GOVERNMENT BILL OF LADING SHOWING THE ACTUAL WEIGHT OF THE SHIPMENT AS 1,725 POUNDS, AND CONTAINING THE NOTATION "SPACE RESERVED FOR 1000 CU FT OF SPACE," THE CARRIER WHO WAS PROPERLY PAID LINEHAUL CHARGES BASED ON A MINIMUM WEIGHT OF 10,000 POUNDS IS ONLY ENTITLED TO A "SHIPMENT CHARGE" FOR THE SPACE RESERVED ON THE ACTUAL WEIGHT OF THE SHIPMENT, AND EXCEPTION WAS PROPERLY TAKEN TO THE HIGHER CHARGE BASED ON THE CONSTRUCTIVE WEIGHT OF 10,000 POUNDS SINCE ITEM 15 OF GOVERNMENT RATE TENDER (GRT), I.C.C. 1 U, SUPPLEMENT 8, EFFECTIVE MAY 1, 1968, PROVIDES THAT THE SHIPMENT CHARGE WILL APPLY TO "NET WEIGHT," WHICH IN ACCORDANCE WITH APPLICABLE GRT PROVISIONS IS INTERPRETED TO MEAN "ACTUAL WEIGHT."

TO TRANS COUNTRY VAN LINES, INC., MARCH 27, 1973:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1972, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT OF JANUARY 21, 1972(TK-928590), PARTIALLY DISALLOWING YOUR CLAIM FOR $74.85 ON SUPPLEMENTAL BILL NO. 32311.

THIS CLAIM RELATES TO A SHIPMENT OF FABRICATED TEST STRUCTURES TRANSPORTED BY YOUR COMPANY FROM DEER PARK, LONG ISLAND, NEW YORK, TO WRIGHT PATTERSON AFB, OHIO, ON GBL E-8905340, DATED JULY 26, 1968. THE GBL SHOWS THE ACTUAL WEIGHT AS 1,725 POUNDS, AND CONTAINS THE NOTATION "SPACE RESERVED FOR 1000 CU FT OF SPACE."

PURSUANT TO ITEM 1, PAGE 2 OF YOUR INDIVIDUAL TENDER, I.C.C. 50, SUPPLEMENT 9, FOR THE PURPOSE OF COMPUTING THE LINE-HAUL TRANSPORTATION CHARGES, THE SHIPMENT IS SUBJECT TO A MINIMUM WEIGHT BASED ON 7 POUNDS PER CUBIC FOOT OF THE VEHICLE SPACE ORDERED WHEN A SHIPPER ORDERS SPACE RESERVATION FOR A PORTION OF A VEHICLE; HOWEVER, ITEM 12 OF THE TENDER WOULD MAKE THE SHIPMENT SUBJECT TO A MINIMUM WEIGHT OF 10,000 POUNDS. YOU WERE PAID LINE-HAUL CHARGES ON THAT BASIS, AND THE GOVERNMENT DOES NOT QUESTION THE PROPRIETY OF THOSE CHARGES. THE PARTIAL DISALLOWANCE RELATES TO A "SHIPMENT CHARGE" BILLED IN THE AMOUNT OF $24.85.

IN THE SETTLEMENT CERTIFICATE $18.50 OF THE CLAIM FOR A SHIPMENT CHARGE OF $24.85 WAS DISALLOWED, AND $6.35 WAS ALLOWED. BOTH AMOUNTS - $6.35 AND $24.85, THE AMOUNT BILLED - APPEAR AS SHIPMENT CHARGES IN ITEM 15 OF GOVERNMENT RATE TENDER (GRT), I.C.C. 1-U, SUPPLEMENT 8, EFFECTIVE MAY 1, 1968. THE GRT IS CITED IN ITEM 16 OF YOUR INDIVIDUAL TENDER. ITEM 15 PROVIDES THAT "WHEN SHIPMENT WEIGHS" FROM "1,000 TO 1,999 POUNDS," THE CHARGE PER SHIPMENT WILL BE $6.35. SINCE THE ACTUAL WEIGHT OF THE SHIPMENT AS STATED IS 1,725 POUNDS, SETTLEMENT WAS MADE ON THAT BASIS; HOWEVER, SINCE THE CONSTRUCTIVE WEIGHT OF THE SHIPMENT WAS 10,000 POUNDS, AND FALLS WITHIN THE WEIGHT BRACKET FROM 8,000 TO 11,999 POUNDS IN THE COLUMN HEADED "WHEN SHIPMENT WEIGHS," YOU CONTEND THAT THE CORRESPONDING CHARGE PER SHIPMENT IS $24.85.

NOTE 1 OF ITEM 15 PROVIDES THAT THE SHIPMENT CHARGE WILL BE APPLIED TO NET WEIGHT OF THE SHIPMENT. OBVIOUSLY, THE ISSUE IS WHETHER "NET WEIGHT" MEANS ACTUAL WEIGHT, AS DETERMINED IN OUR AUDIT, OR A CONSTRUCTIVE WEIGHT OF 10,000 POUNDS, AS CONTENDED BY YOU. IT IS RECOGNIZED THAT "NET WEIGHT" IS DEFINED IN PARAGRAPH (I) OF APPLICATION OF TENDER (IN GRT 1-U). PARAGRAPH (I), ADDED IN SUPPLEMENT 3 TO GRT 1 U, PERTAINS TO DEFINITION OF WEIGHTS, AND STATES IN PERTINENT PART:

ALL RATES AND CHARGES HEREIN ARE BASED ON THE NET WEIGHT (SOMETIMES REFERRED TO AS ACTUAL WEIGHT) OF THE SHIPMENT SUBJECT TO MINIMUM WEIGHT AS PROVIDED HEREIN. NET WEIGHT INCLUDES THE WEIGHT OF THE GOODS PLUS CARTONS, BARRELS, FIBER DRUMS, WARDROBES, CRATES (MIRROR, MARBLE, ETC.)

THERE IS A DISPUTE AS TO THE SCOPE OF THE PHRASE, "AS PROVIDED HEREIN."

ITEM 15 IS NOT CLEAR AS TO WHETHER "HEREIN" RELATES ONLY TO THAT ITEM; HOWEVER, IF IT IS BROAD ENOUGH TO INCLUDE THE GRT GENERALLY, THE LOGICAL PROVISION TO WHICH IT WOULD RELATE IS ITEM 12 OF THE UNIFORM TENDER OF RATES FORM IN THE GRT, WHICH PROVIDES A MINIMUM WEIGHT PER SHIPMENT OF 500 POUNDS. YOU BELIEVE "HEREIN" COVERS PARAGRAPH (E) OF THE GRT, AND CONCLUDE THAT WHEN THE GOVERNMENT REQUESTS SPECIFIC VEHICLE SERVICE, SUCH AS SPACE RESERVATION FOR A PORTION OF A VEHICLE, THE TRANSPORTATION CHARGES ARE TO BE COMPUTED ON ACTUAL WEIGHT SUBJECT TO A MINIMUM WEIGHT BASED ON SEVEN POUNDS PER CUBIC FOOT OF THE SPACE ORDERED. YOU STATE THAT "TRANSPORTATION CHARGES" INCLUDE SHIPMENT CHARGE AND LINE-HAUL CHARGE, AMONG OTHERS.

WHILE YOUR POSITION APPEARS TO HAVE SOME VALIDITY, WE BELIEVE THAT A MORE REASONABLE VIEW OF PARAGRAPH (E) WOULD BE THAT IT IS LIMITED TO USE FOR DETERMINING LINE-HAUL SERVICES; OTHER TENDER PROVISIONS WHICH ARE INTENDED TO BE MADE SUBJECT TO THE MINIMUM WEIGHT BASIS THERE AUTHORIZED SHOULD INCLUDE LANGUAGE SPECIFICALLY INDICATING THAT INTENT. WE ARE ADVISED THAT GENERALLY OTHER MOTOR CARRIERS SUBJECT TO THE SAME TENDER TERMS BILL AND ACCEPT SHIPMENT CHARGE PAYMENTS ON THE BASIS OF THE ACTUAL, RATHER THAN CONSTRUCTIVE, WEIGHT.

PARAGRAPH (E) DOES NOT STATE THAT THE TERM "TRANSPORTATION CHARGES" INCLUDES A SHIPMENT CHARGE, NOR DOES THE MINIMUM WEIGHT RELATE TO THE CONSTRUCTIVE WEIGHT FORMULA IN YOUR INDIVIDUAL TENDER, WHICH YOU SEEM TO ASSUME. THE TERM "TRANSPORTATION CHARGES" GENERALLY REFERS TO LINE HAUL OR INTER-CITY CHARGES FOR TRANSPORTATION SERVICES. 40 COMP. GEN. 199, 201(1960). TRANSPORTATION SERVICES INVOLVE PHYSICAL SERVICES BY THE CARRIER, AND NOTE 2 OF ITEM 15 OF THE GRT PROVIDES THAT THE SHIPMENT CHARGE "IS NOT RELATED TO PHYSICAL SERVICES PERFORMED BY OR FOR THE CARRIER." WE VIEW THIS STATEMENT AS JUSTIFYING THE APPLICATION OF THE SHIPMENT CHARGE TO THE ACTUAL WEIGHT, AND NOT THE CONSTRUCTIVE MINIMUM WEIGHT, OF THE SHIPMENT INVOLVED.

WE ALSO NOTE THAT THE MINIMUM WEIGHT IN PARAGRAPH (E) REFERS TO THE MINIMUM WEIGHT PROVIDED FOR IN "CARRIER'S APPLICABLE PUBLISHED TARIFF ON FILE WITH THE INTERSTATE COMMERCE COMMISSION." SINCE YOUR INDIVIDUAL TENDER IS NOT A TARIFF, THERE IS A TECHNICAL QUESTION AS TO WHETHER PARAGRAPH (E) WOULD RELATE TO THE CONSTRUCTIVE WEIGHT FORMULA AND MINIMUM WEIGHT IN TENDER 50, SUPPLEMENT 9.

YOU STATE THAT SINCE IN THE TABLE OF CONTENTS OF GRT 1-V, THE TERM "SHIPMENT CHARGE" PRECEDES THE TERM "TRANSPORTATION RATES," THE SHIPMENT CHARGE IS A TRANSPORTATION CHARGE FOUNDED ON SUCH TARIFF PROVISIONS APPLICABLE TO ALL TRANSPORTATION CHARGES. WE DO NOT UNDERSTAND THAT ANY PARTICULAR SIGNIFICANCE MAY BE ATTRIBUTED TO THE TERM IN QUESTION MERELY BECAUSE OF ITS LISTING IN THE MANNER INDICATED. AS WE INDICATED ABOVE, NOTE 2 OF ITEM 15 SEEMS TO LIMIT CONSIDERATION OF THE SHIPMENT CHARGE AS ONE INDEPENDENT OF THE FORMULA USED FOR THE COMPUTATION OF THE TRANSPORTATION CHARGES.

THE SHIPMENT CHARGE IS BASED ON NET WEIGHT AS DEFINED IN PARAGRAPH (I), SUBJECT TO A 500-POUND MINIMUM WEIGHT. SINCE THE ACTUAL WEIGHT IS 1,725 POUNDS, THE MINIMUM WEIGHT IS IRRELEVANT, AND THE $6.35 ALLOWED BY OUR SETTLEMENT CERTIFICATE IS CORRECT BECAUSE THIS IS THE CHARGE SPECIFIED IN ITEM 15 "WHEN SHIPMENT WEIGHTS" 1,000 TO 1,999 POUNDS.

YOU WERE PREVIOUSLY ADVISED THAT THERE WOULD BE JUSTIFICATION FOR APPLYING ITEM 15 IF THE ITEM CONTAINED A PROVISION SIMILAR TO THE ONE IN ITEM 190, NOTE 1, PERTAINING TO FERRY, BRIDGE AND SERVICE CHARGES, AND IN ITEM 200, NOTE 3, PERTAINING TO ADDITIONAL TRANSPORTATION CHARGE. WITH EXCEPTIONS NOT HERE PERTINENT EACH ITEM PROVIDES THAT THE CHARGES "WILL BE ASSESSED ON WEIGHT AT WHICH TRANSPORTATION RATE IS BASED." ALSO SEE ITEM 190 AND COMPARE ITEMS 20 AND 120.

SINCE WE BELIEVE THAT THE CHARGE BASIS APPLIED IN THE PERTINENT SETTLEMENT CERTIFICATE IS CORRECT, THE DISALLOWANCE OF YOUR CLAIM FOR $18.50 IS SUSTAINED. OUR TRANSPORTATION AND CLAIMS DIVISION WILL CONTINUE COLLECTION ACTION ON SIMILAR TRANSACTIONS INVOLVING THE SHIPMENT CHARGE ISSUE.