B-149821, OCT. 2, 1963

B-149821, OCT. 2, 1963

TO THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1963, FILE 5GB 27639, ACKNOWLEDGED ON AUGUST 29, 1963, URGING RECONSIDERATION OF THE INFORMATION SET FORTH IN YOUR LETTER OF APRIL 30, 1963, IN SUPPORT OF YOUR CLAIM FOR ADDITIONAL CHARGES ON THE TRAINING MATERIAL TRANSPORTED FROM ALBUQUERQUE, NEW MEXICO, TO ROCKY, COLORADO, UNDER BILL OF LADING AT- 151617, DATED OCTOBER 23, 1959. IN OUR LETTER OF AUGUST 5, 1963, B 149821, IN REPLY TO YOUR LETTER OF APRIL 30, 1963, WE REAFFIRMED OUR DECISION OF MARCH 29, 1963, WHICH AUTHORIZED THE ISSUANCE OF A REVISED SETTLEMENT ALLOWING PART OF YOUR CLAIM BASED ON THE RATES APPLYING TO AND FROM KILLEEN, TEXAS, BUT DISALLOWED THE AMOUNT CLAIMED FOR THE MOVEMENT FROM DENVER, COLORADO, TO ROCKY, COLORADO, SINCE NATIONAL RATE BASES TARIFF 1-A, I.C.C. 4211, PROVIDES FOR THE APPLICATION OF THE DENVER RATE ON SHIPMENTS TO ROCKY, COLORADO, FROM KILLEEN, TEXAS. PURSUANT TO THE SAID DECISIONS OUR TRANSPORTATION DIVISION BY CERTIFICATE OF SETTLEMENT DATED AUGUST 15, 1963, ALLOWED YOU $190.23 OF THE SUM OF $214.10 CLAIMED AND DISALLOWED $23.87. YOUR LETTER OF AUGUST 15, 1963, THUS, IN EFFECT, RELATES ONLY TO THE SUM OF $23.07 WHICH WAS DISALLOWED.

IN YOUR REQUEST FOR FURTHER CONSIDERATION AND PAYMENT OF THE ADDITIONAL AMOUNT, YOU INQUIRE AS TO:

(1) "WHY RATES AND ROUTES AS PROVIDED UNDER APPLICABLE TARIFFS, AND REQUIRED UNDER THE RULES AND REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION, SHOULD NOT BE CONSIDERED?

(2)"WHY THE D AND RGW IS NOT ENTITLED TO THE RATE DENVER TO ROCKY WHEN THE D AND RGW DOES NOT RECEIVE THE ROUTING FROM PUEBLO TO ROCKY UNDER APPLICABLE TARIFFS?

THUS IT SEEMS TO BE YOUR CONTENTIONS THAT THE CHARGES FROM KILLEEN, TEXAS, TO ROCKY, COLORADO, SHOULD BE COMPUTED VIA THE ACTUAL ROUTE OF MOVEMENT AND SINCE YOUR COMPANY DID NOT RECEIVE THE TRAINING MATERIAL AT PUEBLO, COLORADO, THAT YOU ARE ENTITLED TO A COMBINATION RATE OVER DENVER, COLORADO.

THE RECORDS HERE SHOW THAT THE 3,510 POUNDS OF TRAINING MATERIAL SHIPPED UNDER BILL OF LADING AT-151617 WERE TRANSPORTED IN GOVERNMENT CAR USAX G- 28 WHICH CAR MOVED IN PASSENGER TRAIN SERVICE UNDER BILL OF LADING AT- 151616. IN YOUR LETTER OF APRIL 30, 1963, YOU STATED THAT UNDER THE AGREEMENT OF JULY 1, 1951, WITH THE ATOMIC ENERGY COMMISSION, SHIPMENTS OF TRAINING MATERIAL MOVING IN PASSENGER TRAIN SERVICE WERE SUBJECT TO THE SAME RATES AS THOSE APPLYING ON MOVEMENTS OF MILITARY IMPEDIMENTA. YOU FURTHER STATED THAT SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT 29, PARAGRAPHS (A) THROUGH (H) APPLIED FOR THE TRANSPORTATION OF MILITARY IMPEDIMENTA AND THAT THE CLASS 100 RATE APPLIED ON LESS THAN CARLOAD QUANTITIES. YOU CONTENDED, HOWEVER, THAT UNDER SECTION 25, PARAGRAPH (E) THE CHARGES MUST BE COMPUTED VIA THE ROUTE OF MOVEMENT IN PASSENGER TRAIN SERVICE.

SINCE THE TRAINING MATERIAL MOVED IN PASSENGER TRAIN SERVICE, THE SECTIONS UNDER THE HEADING PASSENGER TRAIN SERVICE OF JOINT MILITARY PASSENGER AGREEMENT 29 ARE APPLICABLE TO THE COMPUTATION OF THE CHARGES PROPERLY PAYABLE. SECTION 25, PARAGRAPH (E) OF THAT AGREEMENT, UNDER SUCH HEADING, PROVIDES THAT WHEN MILITARY IMPEDIMENTA IS TRANSPORTED IN PASSENGER TRAIN SERVICE THE CHARGES THEREFOR WILL BE THE SAME AMOUNT AS WOULD APPLY IF THE SHIPMENT WERE MADE IN REGULAR FREIGHT TRAIN SERVICE UNDER CURRENT TARIFFS AND AGREEMENTS. IT IS OUR VIEW, THEREFORE, THAT THE CHARGES SHALL FIRST BE ASCERTAINED BY THE USE OF A RATE AND ROUTE PROVIDED FOR FREIGHT SERVICE AND THAT THE CHARGES THUS COMPUTED ARE THEN APPLICABLE TO THE TRAINING MATERIAL TRANSPORTED IN PASSENGER TRAIN SERVICE. THIS INTERPRETATION SEEMS SUPPORTED BY SECTION 25, PARAGRAPH (H) OF JOINT MILITARY PASSENGER AGREEMENT 29 WHICH PROVIDES THAT THE ARRANGEMENT AND BASIS FOR CHARGES SET FORTH FOR PASSENGER TRAIN SERVICE APPLIES OVER ALL LINES AND ROUTES VIA WHICH THE MILITARY IMPEDIMENTA MOVES IN PASSENGER TRAIN SERVICE. PARAGRAPH (H) WOULD SEEM UNNECESSARY AND WITHOUT MEANING UNDER THE INTERPRETATION URGED BY YOU SINCE THE CHARGES WOULD ALWAYS BE COMPUTED OVER THE ACTUAL PASSENGER ROUTING.

THUS AFTER RECONSIDERATION OF THE SEVERAL FACTORS ADVANCED IN YOUR LETTER OF APRIL 30, 1963, IN CONJUNCTION WITH THE PROVISIONS OF THE AGREEMENT OF JULY 1, 1951, AND SECTION 25 OF JOINT MILITARY PASSENGER AGREEMENT 29, WE STILL ARE UNABLE TO AGREE WITH YOUR CONTENTION THAT AN ADDITIONAL AMOUNT IS DUE FOR THE TRANSPORTATION OF THE TRAINING MATERIAL. ACCORDINGLY, OUR PREVIOUS DECISION SUSTAINING THE PARTIAL DISALLOWANCE OF YOUR CLAIM APPEARS PROPER AND IS AFFIRMED.