B-129835, DEC. 10, 1956

B-129835, DEC. 10, 1956

TO AUDITOR OF FREIGHT TRAFFIC:

REFERENCE IS MADE TO YOUR FILE 149-8/148677 UNDER WHICH YOU REQUESTED REVIEW OF THE ACTION OF OUR TRANSPORTATION DIVISION IN DISALLOWING YOUR CLAIM, PER BILL NO. 8/14877-A, FOR $643.05 ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF FOUR SHIPMENTS OF AIR FORCE EQUIPMENT AND SUPPLIES WHICH WERE RETURNED FROM OVERSEAS AND TENDERED TO YOUR COMPANY AT PORT OF NEWARK, NEWARK, NEW JERSEY, IN AUGUST 1944, FOR TRANSPORTING TO OLMSTED FIELD, MIDDLETOWN, PENNSYLVANIA.

THE RECORD SHOWS THAT IN CONNECTION WITH THREE OF THESE SHIPMENTS, DESCRIBED IN BILLS OF LADING NOS. WT-9156466, WT-9156432, AND WT 9156431 AS METAL AIRPLANE PARTS, YOU CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF 1 1/4 TIMES THE FIRST-CLASS RATE, PRESUMABLY UNDER THE RATINGS PROVIDED IN THE CONSOLIDATED FREIGHT CLASSIFICATION FOR AIRPLANE PARTS, NOIBN, SUBJECT TO A MINIMUM WEIGHT OF 10,000 POUNDS AND RULE 34 OF THE CLASSIFICATION. ALSO, IN CONNECTION WITH THE SHIPMENT DESCRIBED IN BILL OF LADING WT-9156294 AS MILITARY IMPEDIMENTS, YOU CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF THE THIRD-CLASS RATE, PRESUMABLY IN ACCORDANCE WITH THE PROVISIONS OF THE CONSOLIDATED FREIGHT CLASSIFICATION PERTAINING TO SHIPMENTS OF THAT CHARACTER. IN THE AUDIT OF YOUR BILL IN OUR TRANSPORTATION DIVISION IT WAS DETERMINED THAT THE CHARGES ON THESE SHIPMENTS SHOULD HAVE BEEN COMPUTED IN ACCORDANCE WITH A.A.R. QUOTATION NO. 487, AT A RATE OF 30 CENTS PERHUNDRED POUNDS, BASED ON THE USE OF THE CLASS 37 1/2 RATE AT A MINIMUM WEIGHT OF 40,000 POUNDS, ON CARLOAD SHIPMENTS OF UNCLASSIFIED AND UNSEGREGATED SALVAGED AND SURPLUS EQUIPMENT AND SUPPLIES RETURNED FROM OVERSEAS.

IN RESPONSE TO THE NOTICE OF OVERPAYMENT, FORM 1003 DATED SEPTEMBER 24, 1949, YOU MADE A PARTIAL REFUND OF $13.70 ON AN ITEM NOT RELATED TO THE SUBJECT MATTER. HOWEVER, CONCERNING THE SUBJECT ITEMS, YOU DECLINED TO MAKE THE REQUESTED REFUND ON THE GROUNDS THAT THE ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 487 APPLIED ONLY ON UNCLASSIFIED AND UNSEGREGATED EQUIPMENT IN MIXED CARLOADS, AND NOT ON ARTICLES SPECIFICALLY NAMED IN THE CLASSIFICATION; ALSO, THAT THE SAID QUOTATION DID NOT BECOME EFFECTIVE UNTIL JANUARY 1, 1945. THE REMAINDER OF THE AMOUNT STATED AS AN OVERPAYMENT WAS THEREAFTER DEDUCTED FROM AN OPEN BILL OF YOUR COMPANY.

A.A.R. QUOTATION NO. 487 WAS ISSUED ON JANUARY 30, 1945, BEARING AN EFFECTIVE DATE OF JANUARY 1, 1945, AND PROVIDED FOR RATES ON UNCLASSIFIED AND UNSEGREGATED SALVAGED AND SURPLUS EQUIPMENT AND SUPPLIES (EXCEPT AMMUNITION AND EXPLOSIVES) RETURNED FROM OVERSEAS, AND SHIPPED ON GOVERNMENT BILLS OF LADING, IN MIXED CARLOADS, FROM NORTH ATLANTIC PORTS, AND OTHER PORTS NOT PERTINENT HERE. BY AMENDMENT NO. 1, ISSUED FEBRUARY 3, 1945, THE EFFECTIVE DATE WAS AMENDED TO READ JANUARY 1, 1944. THEREAFTER, BY LETTER OF MAY 2, 1945, HEADQUARTERS, AIR TECHNICAL SERVICE COMMAND, WRIGHT FIELD, DAYTON, OHIO, INITIATED ACTION TO OBTAIN A LIST OF THE BILL OF LADING AND VOUCHER NUMBERS WHICH COVERED SHIPMENTS OF THE CHARACTER CONTEMPLATED BY THE QUOTATION WHICH HAD BEEN MADE SINCE THE AMENDED EFFECTIVE DATE OF JANUARY 1, 1944. THE ADMINISTRATIVE INFORMATION THAT THE CONCERNED SHIPMENTS WERE COVERED BY THE PROVISIONS OF THE SAID QUOTATION WAS TRANSMITTED TO THIS OFFICE BY 1ST INDORSEMENT DATED JULY 3, 1945, FROM ARMY AIR FORCES--- MATERIEL AND SERVICES, FILE SPFKF 554.4 T.D. F-1, WASHINGTON 25, D. C., AND THIS INFORMATION IS SHOWN TO HAVE BEEN FURNISHED BY OLMSTED FIELD, MIDDLETOWN, PENNSYLVANIA, UNDER DATE OF MARCH 8, 1945. THEREFORE, THE CONTENTIONS IN YOUR LETTER OF JANUARY 24, 1955, THAT THE QUOTATION WAS NOT APPLICABLE TO THE INVOLVED SHIPMENTS BECAUSE THEY WERE CLASSIFIED AND SEGREGATED, AND DID NOT MOVE IN MIXED CARLOADS, CANNOT BE SUSTAINED.

IN INSTANCES IN WHICH THERE IS A CONFLICT BETWEEN THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE AND THOSE STATED BY A CLAIMANT, IT HAS LONG BEEN THE ESTABLISHED RULE OF THIS OFFICE TO REPLY ON THE REPORT OF FACTS SUBMITTED BY THE ADMINISTRATIVE OFFICE, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. 16 COMP. GEN. 25; 19 ID. 88.

SINCE THE ADMINISTRATIVE OFFICE REPORTS THAT THE SHIPMENTS IN QUESTION ACTUALLY CONSISTED OF MIXED CARLOADS OF UNCLASSIFIED AND UNSEGREGATED SALVAGED AND SURPLUS EQUIPMENT AND SUPPLIES RETURNED FROM OVERSEAS, THE BASIS FOR THE COMPUTATION OF CHARGES PROVIDED BY A.A.R. QUOTATION NO. 487 APPEARS TO BE PROPER FOR USE IN THIS INSTANCE. ACCORDINGLY, THERE APPEARING TO BE NO REASON FOR MODIFICATION OF THE PRIOR ACTION OF THIS OFFICE, THE SETTLEMENT OF APRIL 30, 1954, MUST BE AND IS SUSTAINED.