B-149821, DEC. 16, 1963

B-149821, DEC. 16, 1963

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

YOUR LETTER OF NOVEMBER 19, 1963, FILE 5 GB-27639, ASKS THAT WE AGAIN RECONSIDER YOUR CLAIM FOR ADDITIONAL CHARGES FOR THE TRANSPORTATION OF CERTAIN TRAINING MATERIAL FOR THE ATOMIC ENERGY COMMISSION UNDER BILL OF LADING AT-151617 DATED OCTOBER 23, 1959. THAT CLAIM IN THE ORIGINAL AMOUNT OF $214.10 WAS ALLOWED, PURSUANT TO OUR DECISION OF MARCH 29, 1963, B-149821, TO YOU, IN THE AMOUNT OF $190.23, LEAVING ONLY A DIFFERENCE OF $23.87 TO WHICH YOUR LETTER RELATES.

ALSO, YOUR PRIOR REQUESTS FOR RECONSIDERATION AND ALLOWANCE IN FULL OF YOUR CLAIM WERE CONSIDERED IN OUR DECISIONS OF AUGUST 5, OCTOBER 2, AND OCTOBER 29, 1963. IN THOSE DECISIONS WE DISCUSSED YOUR CONTENTIONS AS TO THE APPLICABLE CHARGES AND INFORMED YOU IN DETAIL OF THE REASONS FOR OUR VIEW THAT THE SUM OF $23.87 WAS NOT PROPERLY FOR ALLOWANCE, ADHERING TO OUR DECISION OF MARCH 29, 1963.

AS YOU KNOW, THE SHIPMENT INVOLVED THE MOVEMENT OF CERTAIN TRAINING MATERIAL FOR THE ATOMIC ENERGY COMMISSION IN CAR USAX G-28 FROM ALBUQUERQUE, NEW MEXICO, TO ROCKY, COLORADO, VIA KAYS SPUR, KILLEEN, TEXAS, WITH A STOPOVER AT KILLEEN TO PERMIT UNLOADING AND FURTHER LOADING OF THE TRAINING MATERIAL. OUR SETTLEMENT, BECAUSE OF SUCH STOPOVER, ALLOWED A COMBINATION RATE VIA KILLEEN, TEXAS, AND THE DIFFERENCE BETWEEN THE CHARGES YOU CLAIM AND THOSE ALLOWED INVOLVE THE MOVEMENT FROM KILLEEN TO ROCKY. THE RATES FOR SUCH MOVEMENT ARE FOR DETERMINATION UNDER AN AGREEMENT EFFECTIVE JULY 1, 1951, BETWEEN NUMEROUS CARRIERS INCLUDING YOUR RAILROAD AND THE ATOMIC ENERGY COMMISSION WHICH STATES THAT IT IS MADE "UNDER THE PROVISIONS OF SECTION 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED" AND PROVIDES THAT THE TRAINING MATERIAL WILL BE TRANSPORTED IN PASSENGER TRAIN SERVICE "UNDER THE SAME CONDITIONS AND AT THE SAME RATES AS APPLY FOR TRANSPORTATION OF MILITARY IMPEDIMENTS.'

THE RATES AND CONDITIONS UNDER WHICH MILITARY IMPEDIMENTA ARE CARRIED IN PASSENGER TRAIN SERVICE ARE SET OUT IN SECTION 25 (D) THROUGH (H) OF JOINT MILITARY PASSENGER AGREEMENT NO. 29 DATED JULY 11, 1952. EXCERPTS FROM THE PERTINENT PROVISIONS OF SUCH AGREEMENT CONTROLLING THE RATES PAYABLE AND OUR VIEW AS TO THE MANNER OF THEIR PROPER APPLICATION ARE SET OUT IN OUR DECISION OF AUGUST 5, 1963, AND WILL NOT BE REPEATED HEREIN. IT IS OUR VIEW THAT SUCH PROVISIONS REQUIRE THE PAYMENT FOR THE MOVEMENT OF THE TRAINING MATERIAL IN PASSENGER TRANSPORTATION OF THE SAME CHARGES AS IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE. HAD THE SHIPMENT FROM KILLEEN TO ROCKY BEEN MADE IN REGULAR FREIGHT TRAIN SERVICE AND, IF, AS YOU INDICATE THE FREIGHT CHARGES WOULD BE HIGHER IF THE MATERIAL WAS DELIVERED TO YOUR RAILROAD AT DENVER RATHER THAN AT PUEBLO, WE CAN ONLY ASSUME THAT THE FREIGHT SHIPMENT WOULD HAVE BEEN SO ROUTED OR INTERLINED AS TO PRODUCE THE LOWER CHARGES.

YOU STATE IN THE SECOND PARAGRAPH, FIRST PAGE OF YOUR LETTER:

"FOR YOUR INFORMATION, IT IS STILL OUR CONTENTION THAT WE ARE NOT REQUIRED TO PROTECT THE DENVER RATE AT ROCKY, OR THE ROCKY RATE AT DENVER, UNDER APPLICABLE TARIFFS, UNLESS WE DO RECEIVE ROUTING PUEBLO TO ROCKY. ANYONE FAMILIAR WITH RATES AND ROUTES UNDER APPLICABLE TARIFFS SHOULD KNOW THAT THE CARRIERS ARE REQUIRED TO COLLECT THE PROPER TARIFF RATE VIA ROUTES AS PUBLISHED UNDER SUCH TARIFFS, AND SAME IS REQUIRED UNDER RULES AND REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION.'

AS INDICATED ABOVE, THE APPLICABLE RATES ARE THOSE AGREED UPON UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, WHICH PERMITS CARRIERS BY RAIL TO CARRY PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES, STATE OR MUNICIPAL GOVERNMENTS. THERE IS THUS, AS TO SUCH TRAFFIC, NO REQUIREMENT THAT THE USUAL TARIFF RATES BE CHARGED; AND, THE RULES AND REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION DESIGNED TO PREVENT DISCRIMINATION DO NOT PRECLUDE CARRIAGE OF SUCH TRAFFIC FREE OR AT REDUCED RATES. MOREOVER, AS INDICATED ABOVE, IT IS OUR VIEW THAT YOU HAVE BEEN PAID IN FULL THE CHARGES DUE UNDER THE AGREEMENT. THE DIVISION OF SUCH CHARGES BETWEEN THE PARTICIPATING CARRIERS IS A MATTER FOR ADJUSTMENT BETWEEN SUCH CARRIERS.

IN THE SECOND PARAGRAPH, PAGE TWO OF YOUR LETTER YOU STATE:

"WE ALSO WISH TO CALL YOUR ATTENTION TO YOUR LETTER OF AUGUST 5, 1963, WHEREIN YOU POINT OUT THAT 49-U.S.C. 22 PROVIDES FOR FREE OR REDUCED RATES. IN OUR LETTER OF OCTOBER 11, 1963, WE DID POINT OUT THAT YOU DID NOT REFER TO A SECTION 22 QUOTATION, THAT WOULD ALLOW BASIS OF FREE OR REDUCED RATES AND THAT THERE IS NOTHING UNDER THE AGREEMENTS THAT HAS REFERENCE TO 49-U.S.C. 22, AND THAT SAME HAD NO CONNECTION WITH THE ISSUE AT HAND.'

AS INDICATED ABOVE THE AMOUNT FOR PAYMENT IS FOR DETERMINATION UNDER THE AGREEMENT EFFECTIVE JULY 1, 1951, BETWEEN NUMEROUS CARRIERS INCLUDING YOUR RAILROAD AND THE ATOMIC ENERGY COMMISSION (AND JOINT MILITARY PASSENGER AGREEMENT 29 INCORPORATED THEREIN BY REFERENCE). SUCH AGREEMENT RECITES IT WAS MADE "UNDER THE PROVISIONS OF SECTION 22 OF THE INTERSTATE COMMERCE ACT, AS NDED.' HENCE 49 U.S.C. 22, THE AUTHORITY UNDER WHICH THE RATES WERE AGREED TO AND WHICH PERMITS USE OF RATES OTHER THAN THOSE SET OUT IN TARIFFS APPLICABLE TO THE PUBLIC GENERALLY, APPEARS DEFINITELY TO BE INVOLVED IN THE ISSUE.

IN THE FIFTH PARAGRAPH, PAGE TWO OF YOUR LETTER YOU STATE:

"UNDER YOUR INTERPRETATIONS OF AGREEMENTS, ARE WE TO UNDERSTAND THAT ANY RATE PROVIDED BY YOUR OFFICE, REGARDLESS OF ROUTES, MUST BE CONSIDERED AND THAT RATES AND ROUTES PUBLISHED IN LEGAL TARIFFS AND UNDER RULES AND REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION SHOULD BE DISREGARDED.'

OUR OFFICE IN CARRYING OUT ITS DUTIES UNDER 49 U.S.C. 66 TO AUDIT BILLS FOR TRANSPORTATION AND TO COLLECT OVERCHARGES MUST OF NECESSITY INTERPRET SECTION 22 AGREEMENTS, AND TARIFFS OF CARRIERS. WE, OF COURSE, ISSUE NO RATES, AND WHILE OUR INTERPRETATION OF SUCH AGREEMENTS OR TARIFFS IS CONTROLLING AS TO CLAIMS BEFORE THE OFFICE, OUR DETERMINATIONS HAVE NO BINDING EFFECT IN A JUDICIAL PROCEEDING. SEE UNITED STATES V. NEW YORK, N.H. AND H.R. CO., 355 U.S. 253, 264. CARRIERS THUS MAY HAVE RECOURSE TO THE COURTS TO RECOVER AMOUNTS WHICH THEY CONSIDER DUE ON CLAIMS DISALLOWED HERE AND HAVE THE BURDEN OF PROVING TO A COURT THAT THEY ARE ENTITLED TO RECOVERY.

THE OTHER MATTERS SET FORTH IN YOUR LETTER HAVE RECEIVED CONSIDERATION BUT, IN OUR VIEW, DO NOT WARRANT ANY CHANGE IN THE CONCLUSIONS REACHED IN OUR EARLIER DECISIONS. ALSO, CONSIDERING SUCH MATTER HAS BEEN PREVIOUSLY REVIEWED BY US ON AT LEAST THREE DIFFERENT OCCASIONS, FURTHER CORRESPONDENCE RELATIVE THERETO WOULD APPEAR TO SERVE NO USEFUL PURPOSE.