
    437 F. 2d 1365
    CONTAINER TRANSPORT INTERNATIONAL, INC. v. THE UNITED STATES
    [No. 195-67.
    Decided February 19, 1971]
    
      
      Alan F. Wohlstetter, attorney of record, for plaintiff. Den-ning da WohlsteMer and Sidney /. Goldman, of counsel.
    
      John Charles Ramney, with, whom was Assistant Attorney General L. Patrick Gray, III, for defendant.
    Before Cowen, Chief Judge, Laramore, Dureee, Davis, Collins, Skelton, and Nichols, Judges.
    
   Per Curiam:

This case was referred to Trial Commissioner Boald A. Hogenson with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Buie 134(h). The commissioner has done so in an opinion and report filed on February 12,1970. Exceptions to the commissioner’s opinion, findings and recommended conclusion of law were filed by plaintiff. Defendant urged that the court adopt the said report as its basis for decision in the case, although the report recommended dismissal of defendant’s counterclaims, as well as plaintiff’s petition, to which extent it is adverse to defendant. The case has been submitted to the court on oral argument of counsel and the briefs of the parties.

Since the court agrees with the trial commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby 'adopts the same as the basis for its judgment in this case. Therefore, neither plaintiff nor defendant is entitled to recover and plaintiff’s petition and defendant’s first and second counterclaims are dismissed.

OPINION OE COMMISSIONER

Hogenson, Commissioner: Plaintiff was one of 15 carriers which participated in a mass movement of household goods of individual members of the Air Force from Evreux-Fauville Air Base, France, to Lockboume Air Force Báse, Ohio.

In accordance with defendant’s established program with respect to movement of household goods, plaintiff and the other carriers provided to defendant door-to-door container service, which involved the prepacking and loading of the household goods of an individual member of the Air Force into specially designed containers at the origin residence of the member, transportation of the loaded containers to the port of departure, arrangement for movement via ocean vessels, transportation of the loaded containers beyond the port of discharge to the destination residence of the member, and placing the household goods in the new residence.

The mass movement from Evreux-Fauville occurred in the period from March 10 through June 30, 1964. During that period, defendant’s transportation officer at Evreux tendered separately to plaintiff 35 shipments, each involving the household goods of one Air Force member, and issued separately to plaintiff a bill of lading on each shipment.

After plaintiff had accomplished the delivery of the shipments, plaintiff billed, and defendant paid in accordance with its administrative practice, the total sum of $95,200, billed and paid on the basis of a special volume rate of $34 per cwt., with a minimum weight of 8,000 pounds per shipment.

The actual weights of the 35 shipments, as shown by the individual bills of lading, varied from 466 to 6,837 pounds. Plaintiff was paid $2,720 on each shipment. For example, one shipment involved 4,080 pounds, but plaintiff billed and was paid for 8,000 pounds thereon.

The rate of $34 per cwt., with a minimum weight of 8,000 pounds, was the volume rate which plaintiff and the other participating carriers had filed with defendant on the pertinent mass movement of household goods, as hereinafter related.

Under the appropriate heading on each of the bills of lading, Tariff or Special Kate Authorities, defendant’s transportation officer at Evreux caused each bill of lading to carry the annotation that the shipment was moving pursuant to the volume rate of $34 per cwt. Such annotations were made pursuant to a directive from the Defense Traffic Management Service (DTMS) of the Department of Defense. DIMS was defendant’s agency which obtained the filing of the volume rate by plaintiff and other carriers.

■Subsequently, in the performance of its audit function, the General Accounting Office issued to plaintiff notices of overcharges on the 35 shipments in the total sum of $46,959.57. GAO applied plaintiff’s previously filed rate, covering the same origin and destination points, of $35.30 per cwt., with a minimum weight of 500 pounds per shipment. For example, adverting to the above-mentioned shipment of 4,080 pounds, GAO applied the rate of $35.30 per cwt. to 4,080 pounds, thus computing the transportation charges on that shipment at $1,440.24. On the only shipment involving less than 500 pounds, i.e., 466 pounds, GAO applied the same rate to 500 pounds for a charge of $176.50 on that bill of lading.

In this maimer, GAO reduced the total ¡amount of transportation charges on the 35 shipments from the $95,200 previously billed and paid to $48,240.43, a reduction of $46,-959.57. Defendant recouped the latter sum by withholding amounts otherwise payable by defendant on subsequent undisputed transportation services rendered by plaintiff. Plaintiff seeks judgment in that sum.

Defendant’s basic position is that the $34 volume rate is applicable to the actual weight of each shipment. In the alternative, and if the volume rate is not applicable under defendant’s theory, due to defendant’s failure to offer at least 8,000 pounds of household goods at the time of each tender to plaintiff of a shipment, defendant’s contention is that plaintiff’s previously filed rate of $35.30 per cwt., with a minimum weight of 500 pounds, remained in effect throughout the pertinent mass movement, and that defendant is entitled to application of that rate as the more favorable rate available.

Plaintiff contends that the $35.30 rate was cancelled by the filing of the $34 volume rate, and that plaintiff is entitled to application of the volume rate to 8,000 pounds per shipment, because of the failure of defendant to make a tender of 8,000 pounds at the time of each proffered shipment.

Defendant has withdrawn its second counterclaim, and its theory with respect thereto is not mentioned in this opinion.

On the basis that the applicable rate is $34 per cwt., applied to 8,000 pounds for each of the individual shipments, the amount of plaintiff’s recovery would be $46,959.57.

On the basis that the applicable rate is $34 per cwt., applied to the actual weight of each individual shipment, the amount of defendant’s recovery on its first counterclaim would be $1,815.75.

On the basis that the applicable rate is $35.30 per cwt., applied to the actual weight of each of the 34 shipments which exceeded 500 pounds, but to 500 pounds on the one shipment which weighed less than that amount, the correct transportation charges for the services furnished to defendant in this case have been fully paid in accordance with the computation by the General Accounting Office.

It is my opinion that neither plaintiff nor defendant is entitled to recover, and that plaintiff’s petition and defendant’s first and second counterclaims should be dismissed.

By letter dated February 7,1964, DTMS wrote to all household carriers who were authorized to provide service for the Department of Defense from France to the Continental United States (including plaintiff), concerning the mass movement in this case. DTMS requested confirmation by February 17, 1964, of a rate on such movement of $34 per cwt., with a minimum weight of 8,000 pounds, with an additional charge of $5 applicable for each delivery stop after tire first one. With respect to its proposed volume rate, DTMS further stated:

* * * This is an exception to the minimum weight published in your basic tender. [Underscoring in original document.] * * *

Plaintiff’s existing rate on file with DTMS was $35.30 per cwt., with a minimum weight of 500 pounds, on the origin and destination points involved in this case.

DTMS requested filing of an EAM card rate tender as soon as possible after confirmation by a carrier of the proposed volume rate, and stated that “Type Change Code 4” was to be used on such card rate tender.

By letter dated February 10, 1964, plaintiff quoted to DTMS a rate of $34 per cwt., with a minimum weight of 8,000 pounds, with an additional charge of $5 applicable for each delivery stop after the first delivery. Plaintiff stated that the quoted rate was “an exception to the minimum weight published” by plaintiff in its existing rate tender. Plaintiff supplied the requested card rate tender, describing it as the “EAM card rate tender showing Type Change Code 4.”

At the time of the DTMS request for and plaintiff’s filing of the volume rate, both plaintiff and DTMS knew that each of the pertinent shipments of household goods of an individual member of the Air Force would weigh substantially less than 8,000 pounds. In fact, DTMS intended that in the application of the volume rate, two or more shipments, aggregating 8,000 pounds or more, would be tendered to a qualified carrier (such as plaintiff) at a single time for defendant to receive the benefit of the lower volume rate. This intention was not communicated to defendant’s transportation officer at Evreux, and he believed that the $34 volume rate would be applicable if a qualified carrier received at least 8,000 pounds of household goods in the overall mass movement, irrespective of the weights of the individual shipments. He conceded, and it is found, that it would have been possible for him to offer each carrier at least 8,000 pounds of household goods at one time before offering any to the next qualified carrier.

The above-mentioned letter of DTMS advised the carriers that the volume movement would amount to 2,540,000 pounds of uncrated household goods, with the movement to occur from April 1 to June 30, 1964, later advanced to March 10, 1964, with the written concurrence of plaintiff.

The pertinent EAM card submitted by plaintiff to defendant was an electronic punch-card prescribed by DTMS for use in its computerized accounting, obtainable from any IBM supply facility. Such card was appropriately punched to show plaintiff’s submission of the pertinent $34 per cwt. rate, with a minimum weight of 8,000 pounds. Such card contained on its face the following printed provision: “ (This cancels all previous filing for this installation.) ”

The reverse side of such card contained several printed standard provisions, the last of which was the following:

23. Alternation: Volume of Traffic — This tender will not apply where charges accruing hereunder exceed charges otherwise applicable for the same service. Receipt of this tender shall not be construed as a guarantee by the government of any particular volume of the traffic hereunder described.

Plaintiff 'had appropriately punched the EAM card (in column 46 thereof) to show the above-mentioned Type Change Code 4.

The Type Change Code 4 was an “in-house” determination, i.en within the Personal Property Directorate of DTMS, to differentiate any EAM card rate filing on volume movement from any other filing previously authorized for the same origin and destination points of shipment.

At all times relevant in this case, DTMS had outstanding written instructions to all DTMS approved household goods carriers, concerning procedures for submission by carriers of EAM card rate tenders on shipments of household goods, to conform with the method established by DTMS for computer analysis of household goods tenders.

A copy of such instructions had been supplied to plaintiff by DTMS.

The DTMS instructions pertained only to rates based on a 500-pound minimum weight, as shown by the following language contained therein:

The minimum weight will be standardized at 500 pounds. All rates will be based on a 500-pound minimum and there will be no allowance for any other minimum weights. This will prevent the use of minimum weights as a gimmick.

No mention of volume movement rate tenders was contained in such instructions.

With respect to EAM card rate submissions on the basis of a 500-pound minimum weight, the instructions stated:

Each rate tender submitted will cancel the preceding rate tender on file between the same two (2) points (origin installation and destination area). In other words, there will be only one rate tender on file for each carrier to and from any pair of points. So each submission will be cancelled by any subsequent submission, but if you want to withdraw or cancel any rate and have no rate on file, you may do this by the procedure outlined in the succeeding paragraphs.

In addition to other fields of information to be supplied by punching of the EAM tender card at different locations in various columns thereof, the DTMS instructions provided for punching of column 46 in three different manners, or codes, to show rate changes to be accomplished by the filing of an EAM tender card. Such changes, relating only to 500-pound minimum weights, were defined as follows:

Type Change. There will be only three types of changes accepted by DTMS. These changes are Gains, Losses, and Changes. A gain represents at [sic] initial filing at a specific area, i.e., all filings in the first five working days in December will all be gains. Losses represent withdrawals or cancellations when no other rate replaces the one on file. The changes represent all other filings. The codes are as follows:
Code: Type change
1_ Loss.
2_ Gain.
3_ Rate Change.

No mention was made in the DTMS instructions concerning a Type Change Code 4, nor was any explanation in writing ever issued by DTMS. Eepeated oral inquiries were made by various carriers, and oral explanation furnished by DTMS concerning the same.

Plaintiff neither inquired of DTMS concerning, nor was it furnished an explanation of the meaning of a Type Change Code 4.

To comply with the provisions of the DTMS instructions, any carrier which had a 500-pound rate on file, which it desired to cancel in connection with its submission of the volume rate involved in this case, would have filed an EAM card in accordance with the provisions of the DTMS volume movement proposal, and to cancel its 500-pound existing rate, would have punched a Type Change Code 1, with appropriate punching in the rate column of the card, as provided in the DTMS instructions. This plaintiff did not do.

A carrier could not otherwise accomplish a change in his existing 500-pound rate by the filing of an EAM card, insofar as the provisions of the DTMS instructions were concerned, because the required date for its submission of the volume rate (February) did not correspond witli the scheduled filing period (December) for changing a regular 500-pound rate on file.

Had plaintiff made inquiry of DTMS as to the meaning of a Type Change Code 4, plaintiff would have been informed by DTMS that such code change would not cancel plaintiff’s existing 500-pound rate, but that such prior rate would remain in effect and available to DTMS on the pertinent shipments.

The position of DTMS is fully consistent with the statements in the DTMS letter request for submission of the pertinent volume rate, and in plaintiff’s letter quotation of such rate, that the volume rate was to be “an exception to the minimum weight” published in plaintiff’s existing 500-pound rate. Such language is reasonably to be interpreted as contemplating that the existing rate was to remain in effect, with the volume rate to be an exception thereto.

Considering the provisions of the outstanding DTMS instructions, with which plaintiff must have been thoroughly familiar as an experienced carrier of household goods for defendant, one cannot reasonably ascribe unequivocal meaning, as plaintiff contends, to the printed provision on the face of the pertinent EAM card: “(This cancels all previous filing for this installation.)” Obviously this card provision was intended for change of a 500-pound rate at the time provided in the instructions.

Moreover, in accordance with axiomatic rules of contract construction to the effect that all provisions of a contract are to be considered in determining meaning to be ascribed to one provision thereof, and that meaning should be given to one provision which will give reasonable force and effect to all provisions of the contract, the above-quoted provisions of the alternation clause on the EAM card stood as a warning to plaintiff that the volume rate was only “an exception” to the existing 500-pound rate, leaving the latter available to defendant in the pertinent mass movement of household goods.

Taking all of these factors into consideration, along with the use by both DTMS and plaintiff of the unexplained term “Type Change Code 4,” it is reasonably to be concluded that there was at least a patent ambiguity in the agreement between the parties for the transportation of the pertinent household goods, with respect to the continued availability of the 500-pound rate. Plaintiff had the duty to inquire of DIMS as to the meaning of a Type Change Code 4, in relationship to the alternation clause and with respect to the statement that the volume rate was “an exception” to plaintiff’s published rate. Since it failed to do so, its interpretation of the cancellation clause on the face of the EAM card cannot be sustained. J. A. Jones Constr. Co. v. United States, 184 Ct. Cl. 1, 12; 395 F. 2d 783, 789 (1968).

It is held that plaintiff’s previously existing rate of $35.30 per cwt., with a minimum weight of 500 pounds remained in force and effect throughout the pertinent mass movement. If the 500-pound rate was the lowest available rate, it follows that the General Accounting Office correctly computed the pertinent transportation charges on that basis. Great Northern Ry. Co. v. United States, 178 Ct. Cl. 226, 241 (1967).

An even lower rate would be available, however, if defendant were correct in its contention that the $34 volume rate was applicable to the actual weight of each shipment, as this would result in a further reduction of the pertinent transportation charges by $1,815.75.

An essential element in the application of a volume rate is the requirement that a shipper tender the specified minimum weight of the commodity to the carrier at one time to be shipped from one origin to one destination. Baggett Transportation Co. v. United States, 162 Ct. Cl. 570, 584-586, 319 F. 2d 864 (1963); Hughes Transportation, Inc. v. United States, 169 Ct. Cl. 63, 68 (1965). Defendant failed to tender the pertinent minimum of 8,000 pounds of household goods at any one time in the pertinent mass movement. Thus, since each shipment tendered in this case weighed less than the volume minimum weight of 8,000 pounds, and if plaintiff’s prior existing rate was cancelled, plaintiff would have been entitled to transportation charges on the basis of application of the volume rate of $34 per cwt. to the minimum weight of 8,000 pounds per shipment, and not on the basis of application of such rate to the actual weight of the shipment, Baggett Transportation Co. v. United States, supra, 162 Ct. Cl. at 585.

This rule cannot reasonably be abrogated by the circumstances that in spite of the failure of defendant’s transportation officer at Evreux to tender 8,000 pounds, or more, at one time, plaintiff was able to consolidate shipments at Le Havre, France, for transportation on ocean bills of lading, and the plaintiff was probably able to consolidate shipments at New York, Baltimore, or Toledo, for land transportation to Lockbourne Air Force Base. Any advantages which plaintiff was able to obtain by its own devices, in spite of the failure of defendant to tender the required volume of shipments at the origin base, as intended by DTMS, furnishes no reasonable ground for establishment of a valid counterclaim against plaintiff in accordance with defendant’s theory.

With respect to defendant’s contention that the volume rate was applicable to the actual weight of each shipment, full consideration is given to the fact that it was well known by plaintiff that its pertinent volume rate was submitted on a mass movement from the base in France to the base in Ohio, but it is of major significance in this case that plaintiff was not the sole carrier utilized on the mass movement, but was required to participate with 14 other carriers. On the basis of defendant’s method of distribution of the shipments to all 15 carriers by use of a rotation roster, plaintiff could expect to receive by weight only about %5 of the available shipments, if an equal distribution was accomplished by defendant, as intended.

Findings or Fact

1. Plaintiff is a corporation organized and existing under the laws of the State of New York, with its principal place of business at 17 Battery Place, New York, New York 10004.

2. The shipments involved in this suit consisted of used household goods transported by plaintiff from overseas points to points in the United States for the Department of Defense in so-called “door-to-door container service.” Basically, “door-to-door container service” covers the movement of household goods between points in the United States, on the one hand, and, on the other, points overseas, and involves the prepaeking and loading of each shipment into specially designed containers at the origin residence, transportation of the loaded containers to the port of departure, arrangement for movement via ocean vessels, or by air, transportation of the loaded containers beyond the port of discharge to the destination residence, and placing the household goods into the new residence.

3. By letter dated February T, 1964, the Defense Traffic Management Service (DTMS) of the Department of Defense wrote to all household goods carriers who were authorized to provide service for the Department of Defense from France to the Continental United States (including plaintiff), concerning a volume movement of household goods from Evreux-Fauville Air Base, France, to Lockboume Air Force Base, Ohio. The letter stated:

1. You are advised of a volume movement of approximately 2,540,000 pounds of uncrated household goods from Evreux-Fauville Air Base, France (FUAN 218) to Lockboume Air Force Base, Ohio (OHIO). The movement will begin approximately 1 April 1964 and will terminate on or about 30 June 1964.
2. The Door-to-Door TGBL rate which will be effective 1 April 1964 is $35.30 based on a 500 pound minimum weight. You are therefore requested to consider a rate of $34.00 per cwt with a minimum weight of 8,000 pounds. An analysis of the rate reveals that the suggested rate is considered reasonable, equitable and advantageous to the Government. This is an exception to the minimum weight published in your basic tender. [Underscoring in original.] In addition, a charge of $5.00 will be applicable for each delivery stop after the first delivery. Released valuation will be '30 cents per pound per article. The government bills of lading will ■be issued by the Transportation Officer at Evreux-Fauville Air Base, France.
3. Your favorable consideration is requested since the above proposal should prove of mutual benefit to the carriers as well as the Government. Request confirmation in band by wire or letter not 'later than 1600 hours 17 February 1964.
4.EAM card rate tenders should follow confirmation as soon as possible. Type change Code 4 will be used on the EAM card rate tenders which will be addressed to this Service, ATTN: 'Chief, Freight Negotiations Division.

4 The intention of DTMS in requesting the lower rate with the 8,000 pound minimum for the volume move as an exception to the prevailing 500-pound minimum rate was that two or more shipments, aggregating 8,000 pounds or more, would be tendered to a qualified carrier (such as plaintiff) at a single time in order for defendant to receive the benefit of the lower volume rate.

At the time of defendant’s request for and plaintiff’s submission of the volume rate of $34 per cwt., with a minimum weight of 8,000 pounds, both plaintiff and defendant knew that each of the pertinent shipments of household goods of individual members of the Air Force would weigh substantially less than 8,000 pounds, and that two or more of such shipments would be required to equal or exceed 8,000 pounds.

5. The purpose of defendant’s request that the carriers file, in addition, a $5 charge for each delivery stop after the first delivery was to inform the carriers that they would be tendered more than one shipment at a single time and that they would be compensated for the extra delivery stops.

6. By letter to DTMS, dated February 10, 1964, plaintiff responded to the DTMS letter of February 7, 1964, as follows:

Reference is made to your letter of 7 February 1964, subject as above.
We wish to quote a rate of $34.00 per cwt. with a minimum weight of 8,000 pounds. This is an exception to the minimum weight published in our MBT No. 1. In addition, a charge of $5.00 will be applicable for each delivery stop after the first delivery. Released valuation will be 30 cents per pound per article.
Enclosed herewith is the EAM card rate tender showing Type Change Code 4.

7. The EAM card submitted by plaintiff to defendant with its letter of February 10,1964, was an electronic punch-card prescribed by DTMS for use in its computerized accounting, obtainable from any IBM supply facility. Such card was appropriately punched to show plaintiff’s submission of the pertinent $34 per cwt. rate, with a minimum weight of 8,000 pounds.

Such card contained on its face the following printed provision: “(This cancels all previous filing for this installation.) ”

The reverse side of such card contained several printed standard provisions, the last of which was the following:

23. Alternation: Volume of Traffic — This tender will not apply where charges accruing hereunder exceed charges otherwise applicable for the same service. Receipt of this tender shall not be construed as a guarantee by the government of any particular volume of the traffic hereunder described.

Also, plaintiff had appropriately punched the EAM card (in column 46 thereon) to show the Type Change Code 4, mentioned in the above-quoted letters of DTMS and plaintiff.

8. On or about March 10,1964, defendant requested plaintiff to advance the effective date of its $34 volume rate quotation from April 1 to March 10,1964, so that defendant could commence with the planned volume move earlier than originally scheduled. By letter to DTMS, dated March 12,1964, plaintiff concurred in this request.

9. During the period March 10 through June 30, 1964, defendant’s transportation officer at Evreux-Fauville Air Base, France, tendered separately to plaintiff 35 shipments destined to Lockbourne Air Force Base, Ohio. Each of the 35 Government bills of lading was prepared by defendant’s transportation officer at Evreux-Fauville Air Base, France.

10. As was conceded by defendant’s pertinent transportation officer in his testimony, it would have been possible for his office to offer each carrier at least 8,000 pounds of household goods at one time before offering any to the next qualified carrier. He had received no instructions to do so, nor had he been advised of the intention of DTMS, as stated in finding 4.

His interpretation of the meaning of the pertinent $34 per cwt. rate, with a minimum weight of 8,000 pounds, was that the volume rate applied against the total tonnage received by a participating carrier throughout the pertinent mass movement, provided such carrier received a minimum of 8,000 pounds in such mass movement.

Accordingly, he tendered each Air Force member’s household goods separately to plaintiff at different times, and none of the individual shipments met the 8,000 pound minimum weight.

11. The transportation officer at Evreux-Fauville Air Base, France, intended that each shipment move under the volume rate quotation as is indicated by the annotation under the heading “Tariff Or Special Rate Authorities” on each of the Government bills of lading. Such annotation was either “Yol $34.00 cwt., dtd 10 March 1964” or “Volume 34.00 cwt.” These annotations were made pursuant to a directive from DTMS.

12. After the 35 shipments were transported by plaintiff to Lockboume Air Force Base, Ohio, and delivered to their proper destinations, plaintiff billed defendant, and was paid in accordance with defendant’s administrative practice, on the basis of the special volume rate of $34 per cwt., applied to the minimum weight of 8,000 pounds per shipment.

For example, on one shipment involving 4,080 pounds of household goods, as shown by the pertinent bill of lading-, plaintiff billed and was paid $2,720, computed by applying $34 per cwt. to 8,000 pounds.

The actual weights on the 35 shipments, as shown by the individual bills of lading, varied from 466 to 6,837 pounds.

13. Subsequently, in the performance of its audit function, the General Accounting Office issued notices of overcharge to plaintiff on the basis of plaintiff’s previously submitted rate of $35.30 per cwt., subject to a minimum weight of 500 pounds per shipment, covering the same origin and destination points involved in this case.

For example, adverting to the same specific shipment mentioned in finding 12, the General Accounting Office applied the $35.30 per cwt. rate to 4,080 pounds, thus computing transportation charges on that shipment at $1,440.24, instead of the $2,720 previously billed and paid.

On the only bill of lading involving less than 500 pounds, i.e., 466 pounds, the General Accounting Office applied the $35.30 per cwt. rate to 500 pounds to arrive at transportation charges on that shipment of $176.50, instead of the $2,720 previously billed and paid.

In this manner, the General Accounting Office reduced the total amount of transportation charges on the 35 shipments from $95,200, the total amount previously billed and paid, to the sum of $48,240.43, or a reduction of $46,959.57.

14. Plaintiff protested the action of the-General Accounting Office, which protest was denied. Subsequently, defendant deducted the sum of $46,959.57 from other bills due plaintiff, which bills are not here in dispute.

The deducted and recovered sum of $46,959.57 is the amount of the judgment which plaintiff seeks in this case.

15. No part of the sum referred to in finding 14 has been received by plaintiff, although duly demanded by it. No action has been taken on this claim or any part thereof by Congress or any other department or agency of the Government other than as set forth herein. Plaintiff is the sole owner of this claim, and no assignment or transfer of said claim or any part thereof has been made.

16. The Type Change Code 4, mentioned in findings 3, 6, and 7, was an “in-house” determination, i.e., within the Personal Property Directorate of DTMS, to differentiate any EAM card rabe filing on volume movement from any other filing previously authorized for the same origin and destination points of shipment.

At all times relevant in this case, DTMS had outstanding written instructions to all DTMS approved household goods carriers, concerning procedures for submission by carriers of EAM card rate tenders on shipments of household goods, to conform with the method established by DTMS for computer analysis of household goods tenders.

A copy of such instructions had been supplied to plaintiff by DTMS.

17. The DTMS instructions pertained only to rates based on a 500-pound minimum weight, as shown by the following language contained therein:

The minimum weight will be standardized at 500 pounds. All rates will be based on a 500-pound minimum and there will be no allowance for any other minimum weights. This will prevent the use of minimum weights as a gimmick.

No mention of volume movement rate tenders was contained in such instructions.

With respect to EAM card rate submissions on the basis of a 500-pound minimum weight, the instructions stated:

Each rate tender submitted will cancel the preceding rate tender on file between the same two (2) points (origin installation and destination area). In other words, there will be only one rate tender on file for each carrier to and from any pair of points. So each submission will be cancelled by any subsequent submission, but if you want to withdraw or cancel any rate and have no rate on file, you may do this by the procedure outlined in the succeeding paragraphs.

18. In addition to other fields of information to be supplied by punching of the EAM tender card at different locations in various columns thereof, the DTMS instructions provided for punching of column 46 in three different manners, or codes, to show rate changes to be accomplished by the filing of an EAM tender card. Such changes, relating only to 500-pound minimum weights, as generally provided in the DTMS instructions, were defined as follows:

Type Olumge. There will be only three types of changes accepted by DTMS. These changes are Gains, Losses, and Changes. A gain represents at [sic] initial filing at a specific area, i.e., all filings in the first five working days in December will all be gains. Losses represent withdrawals or cancellations when no other rate replaces the one on file. The changes represent all other filings. The codes are as follows:
Code: Type change
1- Loss.
2- Gain.
3- Rate Change.

No mention was made in the DTMS instructions concerning a Type Change Code 4, nor was any explanation in writing ever issued by DTMS. Eepeated oral inquiries were made by various carriers, and oral explanation furnished by DTMS concerning the same.

Plaintiff neither inquired of DTMS concerning, nor was it furnished an explanation of the meaning of a Type Change Code 4.

19. To comply with the provisions of the DTMS instructions, any carrier which had a 500-pound rate on file, which it desired to cancel in connection with its submission of the volume rate involved in this case, would have filed an EAM card in accordance with the provisions of the DTMS letter, quoted in finding 3, and to cancel its 500-pound existing rate, would have punched a Type Change Code 1, with appropriate punching in the rate column of the card, as provided in the DTMS instructions. This plaintiff did not do. A carrier could not otherwise accomplish a change in its existing 500-pound rate by the filing of an EAM card, insofar as the provisions of the DTMS instructions were concerned, because the required date for its submission of the volume rate (February) did not correspond with the scheduled filing period (December) for changing a regular 500-pound rate on file.

20. Had plaintiff made inquiry of DTMS as to the meaning of a Type Change Code 4, the term used by the parties as pet forth in findings 3, 6, and 7, plaintiff would have been informed by DTMS that the Type Change Code 4 would not cancel plaintiff’s existing 500-pound rate, but that such prior rate would remain in effect and available to DTMS on the pertinent shipments.

21. By letter dated May 26, 1964, to Neptune Thru-Container Corp., one of the other 14 carriers participating in the pertinent mass movement of household goods, defendant’s transportation officer at Evreux-Fauville Air Base, France, acknowledged receipt of Neptune’s letter concerning the volume movement to Lockbourne AFB, Ohio, and otherwise stated as follows:

The volume rate of $34.00 per cwt obtained by DTMS was interpreted by this office and concurred on by TMA Frankfurt, Germany, to apply against the total tonnage received by participating carriers from the effective date until completion of the move, providing the carrier re ceived a minimum of 8,000 lbs.
Eecords of this office indicate that your company has received a total of 33 shipments, with an estimated weight of 113,821 pounds since the beginning of the volume move.

22. By letter to DTMS, dated June 8, 1964, the Executive Secretary, Household Goods Carriers’ Bureau, supplied a copy of the letter quoted in finding 21, and inquired of DTMS, as follows:

Our members are encountering difficulty in billing with respect to volume movement from Evreux-Fauville AFB, France to Lockboume AFB, Ohio. There were instances wherein carriers were tendered less than 8,000 lbs. Our instructions to our members were that under such circumstances, they should compute their charges based on the actual weight transported at their regular rate filed on EAM cards and then the minimum involved in the volume movement, in this case 8,000 lbs., at the special volume rate and whichever produced the lower overall charge was the proper billing for the particular shipment.
On May 26th, the Air Force issued a letter to one of our members, copy of which is enclosed, advising that the volume rate would apply on all shipments irrespective of the tonnage tendered for movement at any one time and that determination of the volume rate was based on the total weight tendered over the entire period during which the volume rate applied.
We would appreciate your advising if the instructions to our member were correct.

Plaintiff was not a member of the Household Goods Carriers’ Bureau, nor was it advised of the correspondence set forth in findings 21, 22, and 23, or the subject matter thereof.

23. By letter dated June 23, 1.964, DTMS responded to the Executive Secretary, Household Goods Carriers’ Bureau, as follows:

This is in response to your letter of 8 June 1964 regarding the difficulty being experienced by your members in billing volume move shipments from Evreux-Fauville Air Base, France to Lockboume Air Force Base, Ohio.
The negotiated rate for this volume movement was predicated on the minimum weight of 8,000_pounds and applied only if this minimum weight requirement was met. Therefore, if the total weight tendered to a carrier at the same time did not aggregate 8,000 pounds or more, the tonnage could not be considered a part of the volume movement.

24. The 35 shipments involved in this case moved via ocean vessels from Le Havre, France, to either New York, Baltimore or Toledo. The 35 shipments moved on 14 ocean bills of lading. In some instances, plaintiff consolidated shipments which weighed in the aggregate in excess of 8,000 pounds and which moved aboard one vessel. Shipments which moved on the same ship were available for delivery at or about the same time to final destination.

25. On most of the ocean bills of lading referred to in finding No. 24, plaintiff also moved shipments of military household goods under Government bills of lading which were not part of the mass move from Evreux-Fauville Air Base, France, to Lockbourne Air Force Base, Ohio.

26. The Traffic Management Section of Evreux-Fauville Air Base, France, under the direction of defendant’s transportation officer, was in charge of allocating and distributing the individual shipments of household goods to local agents of carriers qualified to do business at that base under the provisions of DSAR 4500.1. At the time of the mass move involved in this litigation, there were 15 qualified carriers (including plaintiff) serving Evreux-Fauville Air Base, and all of them participated in the pertinent mass movement.

27. There were three local agents serving the 15 participating carriers at Evreux. The combined capacity of the three local agents was 15 shipments per day. Each local agent represented several carriers. Plaintiff’s local agent was Varillon & Fils on all shipments except one which was handled by local agent, Transport Delisle.

28. Each shipment tendered to the plaintiff was the household goods of a single member of the Air Force.

29. In allocating traffic to the qualified carriers prior to the mass move, the personnel under direction of defendant’s transportation officer tried to give a minimum notice of 10 days to an agent prior to the date of pick-up of a shipment. During the period of the mass move, it was necessary in some instances because of the great number of people moving in a short time to reduce the 10-day notice period. During the period of the mass move, all three local agents were utilized to their full capacity.

30. In allocating individual shipments of the mass movement to the carriers, defendant’s transportation officer used a distribution roster which listed all of the participating carriers. In the event a carrier’s turn came up on the roster, when it could not handle a shipment because the local agent had reached its capacity, that carrier was passed, and the shipment tendered to another agent.

31. In making this allocation, defendant’s transportation officer distributed the traffic among all qualified carriers listed on the rate printout of the mass movement. The printout showed that the minimum weight on which the volume tenders were based was 8,000 pounds.

32. On the basis that the applicable rate is $34 per cwt., applied to 8,000 pounds for each of the individual shipments, irrespective of the lesser weight of each shipment, the amount of plaintiff’s recovery would be $46,959.57.

33. On the basis that the applicable rate is $34 per cwt., applied to the actual weight of each individual shipment, the amount of defendant’s recovery on its first counterclaim would be $1,815.75.

34. On the basis that the applicable rate is $35.30 per cwt., applied to the actual weight of each of the 34 shipments which exceeded 500 pounds, but to 500 pounds on the one shipment which weighed less than that amount, plaintiff has been paid in full for the transportation services furnished to defendant in this case.

Conclusion oe Law

Based upon the foregoing findings of fact and opinion which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that neither plaintiff nor defendant is entitled to recover, and plaintiff’s petition and defendant’s first and second counterclaims are dismissed.  