B-151850, JUL. 22, 1963

B-151850, JUL. 22, 1963

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 21, 1963, FILE 5 GB-26278, WHICH, IS IN EFFECT, A REQUEST FOR REVIEW OF SETTLEMENT CERTIFICATE OF MAY 26, 1961, WHICH DISALLOWED YOUR CLAIM ON SUPPLEMENTAL BILL 26278 FOR ADDITIONAL TRANSPORTATION CHARGES OF $100. THE AMOUNT CLAIMED REPRESENTS AN ADDITIONAL AMOUNT ALLEGED TO BE DUE FOR THE TRANSPORTATION FURNISHED THE ATOMIC ENERGY COMMISSION OF A SHIPMENT WHICH MOVED UNDER GOVERNMENT BILL OF LADING AT-149899, DATED AUGUST 31, 1957.

FOR THIS SERVICE YOUR ORIGINALLY CLAIMED AND WERE PAID CHARGES OF $1,425 COMPUTED ON A COMBINATION OF RATES OF $28.50 PER 100 POUNDS ON 5,000 POUNDS. IN OUR AUDIT OF THE PAYMENT VOUCHER IT WAS DETERMINED THAT THE APPLICABLE CHARGE FOR THE SERVICE SHOULD BE $972.50 COMPUTED ON THE BASIS OF A COMBINATION OF RATES OF $19.45PER 100 POUNDS ON 5,000 POUNDS. THE APPLICATION OF THIS BASIS RESULTED IN AN OVERCHARGE OF $452.50, WHICH AMOUNT WAS COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOUR COMPANY. YOU RECLAIMED $100 OF THE AMOUNT DEDUCTED BY SUPPLEMENTAL BILL 26278 URGING THAT CERTAIN OF THE RATES USED IN THE COMBINED RATE OF $19.45 PER 100 POUNDS WERE INAPPLICABLE SINCE THERE IS NO ROUTING IN THE TARIFF PRESCRIBING SUCH RATES THAT PERMITS SHIPMENT OVER THE ROUTE BY WAY OF WHICH THE SHIPMENT ACTUALLY MOVED IN PASSENGER TRAIN SERVICE. YOUR SUPPLEMENTAL BILL WAS DISALLOWED ON THE BASIS OF THE AGREEMENT OF JULY 1, 1951, BETWEEN ALL PASSENGER ASSOCIATIONS AND THE ATOMIC ENERGY COMMISSION AND JOINT MILITARY PASSENGER AGREEMENT NO. 29, SECTION 25, PARAGRAPHS D AND E. YOU NOW REQUEST REVIEW OF THIS DISALLOWANCE AND CONSIDERATION OF YOUR CLAIM.

"IN THE LIGHT OF THE TRUE MEANING OF WORDS AND THE INTENT OF AGREEMENT EFFECTIVE JULY 1, 1951 AND SECTION 25, PARAGRAPH (A) THROUGH (H) OF JOINT MILITARY PASSENGER AGREEMENT NO. 29.'

THE RECORD SHOWS THAT THE BILL OF LADING AT-149899 WAS ISSUED TO COVER THE TRANSPORTATION OF "1 C/L TRAINING MATERIAL," WEIGHING 5,000 POUNDS, FROM SANDIA BASE, ALBUQUERQUE, NEW MEXICO, TO ROCKY, COLORADO (WITH CONSIGNEES AT ROCKY, COLORADO; EDGOTEN, KENTUCKY; PRIEST, TEXAS; KILLEEN, TEXAS AND ROCKY, COLORADO). THE MATERIAL MOVED IN CAR USAX G 25 IN PASSENGER CAR SERVICE, AND THE FACE OF THE BILL OF LADING BEARS THE FOLLOWING ANNOTATIONS:

"THIS CAR TO MOVE IN PASSENGER SERVICE.'

"AUTH: JOINT MILITARY PASSENGER AGREEMENT SEC. 25"

"ROUTE: ATSF--- DENVER, D AND RGW--- ROCKY FLATS (STOPOVER); D AND RGW--- DENVER, ATSF--- KANSAS CITY, MP--- ST. LOUIS, L AND N--- NASHVILLE, TC--- EDGOTEN (STOPOVER), TC--- NASHVILLE, L AND N--- ST. LOUIS, MKT--- SAN ANTONIO, TNO--- PRIEST (STOPOVER) TNO--- SAN ANTONIO, MKT--- TEMPLE, ATSF- -- KANSAS CITY, SPUR KILLEEN, TEX (STOPOVER) ATSF- - AMARILLO, FWD-CS--- DENVER, D AND RGW--- ROCKY FLATS (STOPOVER)"

"ISSUED IN CONNECTION WITH GB/L AT-149898.'

BILL OF LADING AT-149898 COVERS PAYMENT FOR THE FARES FOR THE GOVERNMENT PERSONNEL OR ARMED COURIERS ACCOMPANYING THE SHIPMENT AND TRAVELING IN CAR USAX G-25.

THE COMBINATION OF RATES OF $19.45 PER 100 POUNDS DEEMED APPLICABLE ON THE SUBJECT SHIPMENT IS CONSTRUCTED AS FOLLOWS:

$3.09 ALBUQUERQUE TO ROCKY

5.36 ROCKY TO EDGOTEN

4.75 EDGOTEN TO PRIEST

1.81 PRIEST TO KAYS SPUR KILLEEN

4.44 KAYS SPUR KILLEEN TO ROCKY FLATS

THE AUTHORITY FOR THIS COMBINATION IS PROVIDED IN THE LETTER OF JULY 1, 1951, JOINT MILITARY PASSENGER AGREEMENT NO. 29, AND THE FREIGHT TARIFFS SPECIFIED IN OUR NOTICE OF OVERCHARGE (FORM NO. 1003) OF JUNE 30, 1959. YOU STATE THAT YOU AGREE THAT THE LETTER OF JULY 1, 1951 AND AGREEMENT NO. 29 GOVERN THE SHIPMENT, SO IT IS ONLY THE USE OF RATES IN CERTAIN OF THE FREIGHT TARIFFS SHOWN IN THE NOTICE OF OVERCHARGE TO WHICH YOU OBJECT. SPECIFICALLY, YOU OBJECT TO RATES USED IN THE FIRST AND LAST SEGMENTS OF THE COMBINATION RATE CONSTRUCTED BY THIS OFFICE, THAT IS, THE RATE OF $3.09 FROM ALBUQUERQUE TO ROCKY FLATS AND $4.44 FROM KILLEEN TO ROCKY FLATS CONTENDING THAT THERE IS NO ROUTING IN THE TARIFF NAMING THOSE RATES THAT WILL APPLY OVER THE ROUTE VIA WHICH THE SHIPMENT ACTUALLY MOVED IN PASSENGER TRAIN SERVICE. YOU, IN EFFECT, URGE THAT THE BASIS FOR THE FREIGHT CHARGES PROVIDED BY THE REFERRED-TO AGREEMENTS IS APPLICABLE HERE ONLY TO THE EXTENT THAT SUCH CHARGES ARE AN AGGREGATE OF LOCAL FREIGHT RATES CONSTRUCTED OVER THE JUNCTION POINTS OF THE LINES VIA WHICH THE SHIPMENT MOVED IN PASSENGER TRAIN SERVICE.

IT SHOULD BE NOTED THAT THE COMBINATION OF RATES USED IN OUR BASIS OF CHARGES IS CONSTRUCTED OVER THE STOP-OVER POINTS SHOWN ON THE BILL OF LADING ROUTING, WHICH ARE THE SAME POINTS AS ARE SHOWN FOR THE FIVE CONSIGNEES. THE COMBINATION IS MADE USING THE FREIGHT TARIFFS AND FREIGHT ROUTES APPLICABLE BETWEEN THE STOP-OVER POINTS WITHOUT REGARD TO THE ACTUAL PASSENGER ROUTE OF MOVEMENT. MOREOVER, THE SUBJECT SHIPMENT MOVED IN PASSENGER SERVICE AND IT WOULD APPEAR THAT THE PROVISIONS IN SECTION 25 OF AGREEMENT NO. 29 APPEARING UNDER HEADING "PASSENGER TRAIN SERVICE (PARAGRAPHS D, E, F, G AND H)" ARE APPLICABLE AND NOT THOSE URGED BY YOU WHICH APPEAR UNDER THE HEADING "FREIGHT SERVICE OR MIXED PASSENGER-FREIGHT SERVICE.'

JOINT MILITARY PASSENGER AGREEMENT NO. 29 IS A QUOTATION UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT AND IS ALSO IN THE NATURE OF A SPECIAL TARIFF COVERING SPECIFIED TRANSPORTATION SERVICES FOR THE GOVERNMENT. PROVIDES FOR SHIPMENT OF MILITARY IMPEDIMENTA IN EITHER REGULAR FREIGHT SERVICE, MIXED PASSENGER-FREIGHT SERVICE, OR IN REGULAR PASSENGER TRAIN SERVICE. PARAGRAPHS (E) OF SECTION 25 UNDER "PASSENGER TRAIN SERVICE" OF THE AGREEMENT PROVIDES THAT THE CHARGES FOR THE MOVEMENT IN PASSENGER TRAIN SERVICE

"WILL BE THE SAME AMOUNT IN DOLLARS AND CENTS AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS WITH MILITARY AUTHORITIES.'

SECTION 25 (G) PROVIDES:

"THE ARRANGEMENT AND BASIS FOR CHARGES SET FORTH HEREIN FOR MOVEMENT OF MILITARY IMPEDIMENTA IN PASSENGER TRAIN SERVICE APPLIES OVER ALL LINES AND ROUTES VIA WHICH THE MILITARY IMPEDIMENTA MOVES IN PASSENGER TRAIN SERVICE.'

THIS PROVISION THUS COVERS SITUATIONS IN WHICH THE MOVEMENT IN PASSENGER TRAIN SERVICE DIFFERS FROM THE FREIGHT ROUTING REQUIRED BY TARIFF PROVISION OR CARRIER AGREEMENTS AND TO DETERMINE THE DOLLARS AND CENTS CHARGE FOR REGULAR FREIGHT TRAIN SERVICE WOULD REQUIRE THE USE OF REIGHT ROUTES BETWEEN THE JUNCTION POINTS WHICH YOU HAVE BEEN ALLOWED IN OUR ADJUSTMENT OF THE FREIGHT CHARGES.

ACCORDINGLY, AND IN VIEW OF THE REASONING AND AUTHORITIES CITED IN OUR DECISION TO YOU OF MARCH 29, 1963, WITH WHICH WAS ENCLOSEDA DECISION TO ANOTHER CARRIER INVOLVING A SOMEWHAT SIMILAR SITUATION THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.