A-69850, JANUARY 11, 1936, 15 COMP. GEN. 599

A-69850: Jan 11, 1936

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TRANSPORTATION - FREIGHT CHARGES BASED ON MARKED CAR CAPACITY WHERE A GOVERNMENT BILL OF LADING RECITES THE NEED FOR A CAR OF A SPECIFIED CAPACITY BUT A CAR OF GREATER CAPACITY WAS FURNISHED FOR THE CONVENIENCE OF THE CARRIER. TRANSPORTATION CHARGES ARE FOR COMPUTATION ON THE BASIS OF THE ACTUAL WEIGHT SHIPPED. NOTWITHSTANDING TARIFF PROVISION THAT CARS NOT LOADED TO FULL VISIBLE CARRYING CAPACITY WILL BE CHARGED FOR AT MARKED CAPACITY AS MINIMUM. THE BILL OF LADING RECITED THAT A 40-TON CAR WAS ORDERED FOR THE SHIPMENT AND IN THE SETTLEMENT OF THIS OFFICE. CHARGES WERE COMPUTED FOR ALLOWANCE ON THE BASIS OF THE ACTUAL WEIGHT OF THE SHIPMENT. THE MINIMUM WEIGHT APPLICABLE IS THE MARKED WEIGHT CAPACITY OF THE CAR.

A-69850, JANUARY 11, 1936, 15 COMP. GEN. 599

TRANSPORTATION - FREIGHT CHARGES BASED ON MARKED CAR CAPACITY WHERE A GOVERNMENT BILL OF LADING RECITES THE NEED FOR A CAR OF A SPECIFIED CAPACITY BUT A CAR OF GREATER CAPACITY WAS FURNISHED FOR THE CONVENIENCE OF THE CARRIER, TRANSPORTATION CHARGES ARE FOR COMPUTATION ON THE BASIS OF THE ACTUAL WEIGHT SHIPPED, THAT WEIGHT BEING GREATER THAN THE MAXIMUM FOR THE CAR REQUESTED BUT LESS THAN THE CAPACITY OF THE CAR FURNISHED, THE SHIPMENT THE CAR REQUESTED, NOTWITHSTANDING TARIFF PROVISION THAT CARS NOT LOADED TO FULL VISIBLE CARRYING CAPACITY WILL BE CHARGED FOR AT MARKED CAPACITY AS MINIMUM.

DECISION BY ASSISTANT COMPTROLLER GENERAL ELLIOTT, JANUARY 11, 1936:

THE SEABOARD AIR LINE RAILWAY HAS REQUESTED REVIEW OF SETTLEMENT T 94430, DATED JULY 27, 1934, WHICH DISALLOWED $32.47 ON ITS BILL TD-34 4 FOR CHARGES FOR THE TRANSPORTATION OF A CARLOAD OF LUMP COAL FROM BLOCTON, ALA., TO GAINESVILLE, FLA., UNDER BILL OF LADING T-245724, AUGUST 25, 1933.

THE CARRIER CLAIMED CHARGES ON THE BASIS OF THE APPLICABLE COMMERCIAL RATE OF $4.12 PER NET TON, PLUS 6 CENTS PER NET TON EMERGENCY CHARGE, REDUCED BECAUSE OF LAND GRANT AND APPLIED TO A MINIMUM WEIGHT OF 100,000 POUNDS, THE MARKED CAPACITY OF THE CAR FURNISHED FOR THE SHIPMENT. THE BILL OF LADING RECITED THAT A 40-TON CAR WAS ORDERED FOR THE SHIPMENT AND IN THE SETTLEMENT OF THIS OFFICE, CHARGES WERE COMPUTED FOR ALLOWANCE ON THE BASIS OF THE ACTUAL WEIGHT OF THE SHIPMENT, 85,200 POUNDS. THE CARRIER URGES, HOWEVER, THAT ON THE BASIS OF THE PROVISION OF THE APPLICABLE TARIFF, SPEIDEN'S I.C.C. A 724, THE MINIMUM WEIGHT APPLICABLE IS THE MARKED WEIGHT CAPACITY OF THE CAR, AND THAT, ACCORDINGLY, THE CHARGES ARE FOR COMPUTATION ON THE BASIS OF THE MINIMUM WEIGHT OF 100,000 POUNDS INSTEAD OF THE ACTUAL WEIGHT OF 85,200 POUNDS.

THE CITED TARIFF PROVIDES, IN ITEM 10-C, SUPPLEMENT 30:

MINIMUM WEIGHT * * * COAL.

(APPLICABLE IN CONNECTION WITH RATES FROM GROUPS 1 (WHICH INCLUDES BLOCTON, ALA.) THRO 16 OF TARIFF, AS AMENDED.)

ON SHIPMENTS IN OPEN CARS, VIZ, GONDOLA AND HOPPER.

(A) CARS MUST BE LOADED TO THEIR FULL VISIBLE CARRYING CAPACITY (SUBJECT TO MAXIMUM OF TEN PERCENT (10 PERCENT) IN EXCESS OF MARKED CAPACITY OF CAR), AND, WHEN SO LOADED, TRACK SCALE WEIGHTS AT POINT OF SHIPMENT OR FIRST WEIGHING POINT EN ROUTE WILL BE CHARGED FOR.

(B) CARS NOT LOADED TO FULL VISIBLE CARRYING CAPACITY WILL BE CHARGED FOR AT MARKED CAPACITY OF CAR AS MINIMUM.

(C) IN THE ABSENCE OF SCALE WEIGHTS, FREIGHT CHARGES WILL BE ASSESSED ON BASIS OF MARKED CAPACITY OF CAR.

THE SHIPMENT HERE CONCERNED WAS TRANSPORTED IN LOUISVILLE AND NASHVILLE CAR NO. 79220, WHICH IS A GONDOLA TYPE CAR OF 100,000 POUNDS CAPACITY, THOUGH IT APPEARS FROM THE OFFICIAL RAILWAY EQUIPMENT REGISTER THAT THE LOUISVILLE AND NASHVILLE RAILROAD AND THE SEABOARD AIR LINE RAILWAY HAVE CARS OF THE GONDOLA TYPE OF 40-TON CAPACITY, WHICH WAS THE SIZE ORDERED FOR THE SHIPMENT. THE TARIFF DID NOT CONTAIN A RULE PROVIDING FOR THE APPLICATION OF THE MINIMUM WEIGHT FOR THE SIZE OF THE CAR ORDERED WHEN A LARGER CAR IS FURNISHED FOR THE CARRIER'S CONVENIENCE.

THE INTERSTATE COMMERCE COMMISSION HAS STATED IN RULE 66 OF ITS TARIFF CIRCULAR NO. 20:

THE COMMISSION BELIEVES THAT WHEN TARIFFS PROVIDE MINIMUM WEIGHTS WHICH VARY WITH THE SIZE OF CAPACITY OF THE CAR, IT IS THE DUTY OF THE CARRIER TO INCORPORATE IN SUCH TARIFFS A RULE TO THE EFFECT THAT WHEN A CAR OF THE DIMENSIONS OR CAPACITY ORDERED BY THE SHIPPER CANNOT BE PROMPTLY FURNISHED, AND WHEN THE CARRIER FOR ITS OWN CONVENIENCE DOES PROVIDE A CAR OF GREATER DIMENSIONS OR CAPACITY THAN THAT ORDERED, SUCH CAR MAY BE USED ON THE BASIS OF THE MINIMUM CARLOAD FIXED IN THE TARIFFS FOR CARS OF THE DIMENSIONS OR CAPACITY ORDERED BY THE SHIPPER, PROVIDED THE SHIPMENT COULD HAVE BEEN LOADED INTO OR UPON CAR OF THE CAPACITY OR SIZE ORDERED; * * *

IN CASE OF CONTROVERSY BETWEEN SHIPPERS AND CARRIERS CAUSED BY THE ABSENCE OF SUCH RULE FROM TARIFFS WHICH PROVIDE GRADUATED MINIMA FOR CARS OF DIFFERENT SIZES THE COMMISSION WILL REGARD SUCH TARIFFS AS PRIMA FACIE UNREASONABLE.

IT IS THE DUTY OF CARRIERS TO PROVIDE REASONABLE FACILITIES FOR TRANSPORTATION, AND IF THEY CANNOT FURNISH EQUIPMENT TO MOVE THE CARLOADS PROVIDED FOR IN THEIR REGULATIONS IT IS CLEARLY THEIR DUTY TO PROVIDE SOME OTHER METHOD OF TRANSPORTING AS ONE SHIPMENT, AND AT THE RATE NAMED THEREFOR, SUCH CARLOAD WEIGHT WHEN TENDERED BY SHIPPER.

THE BASIS THUS STATED HAS BEEN APPLIED BY THE INTERSTATE COMMERCE COMMISSION IN MANY CASES. SEE LOGAN-LONG CO. V. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY CO., ET AL. 206 I.C.C. 217; SANISTONE PRODUCTS CO. V. PENNSYLVANIA RAILROAD CO., ET AL., 192 I.C.C. 565; AND BORDEN BRICK AND TILE CO. V. ATLANTIC COAST LINE RAILROAD CO., ET AL., 198 I.C.C. 232. IN THE CASE LAST CITED, IT WAS SAID:

* * * FURTHERMORE, IT IS NOT EQUITABLE OR PROPER TO REQUIRE A SHIPPER TO PAY ADDITIONAL CHARGES FOR USING A CAR OF DIFFERENT DIMENSIONS OR CAPACITIES FROM THAT WHICH WOULD SUIT HIS SHIPMENT OR FOREGO ENTIRELY HIS DESIRE TO SHIP. * * *

THE CHARGES APPEAR PROPERLY FOR ALLOWANCE ON THE BASIS OF THE ACTUAL WEIGHT OF 85,200 POUNDS RATHER THAN ON THE BASIS OF THE MARKED CAPACITY OF THE CAR OR 100,000 POUNDS. HOWEVER, THE SETTLEMENT MADE DEDUCTION FOR LAND GRANT VIA THE SEABOARD AIR LINE RAILWAY FROM MONTGOMERY, ALA., TO DESTINATION ON THE BASIS OF 29.724 PERCENT; WHEREAS IT APPEARS THE DEDUCTION VIA SAID ROUTE BETWEEN SAID POINTS SHOULD HAVE BEEN ON THE BASIS OF 22.584 PERCENT, WITH A RESULTING NET CHARGE OF $131.30, COMPUTED AS FOLLOWS TO INCLUDE THE NET EMERGENCY CHARGE OF 4.6 CENTS PER NET TON:

TABLE

GROSS LAND GRANT NET

CENTS PER CENTS PER

NET TON PERCENT NET TON

BLOCTON, ALABAMA:

MONTGOMERY, ALA ---------- 98.7 38.172 61.024

GAINESVILLE, FLA --------- 319.3 22.584 247.189

TOTAL ------------------ 418 ------ 308.213 85,200 POUNDS, 42.6 TONS, AT 308.213 CENTS ----------------- $131.30 ALLOWED PER CERTIFICATE NO. 94430 -------------------------- 121.59

BALANCE DUE THE CARRIER ----------------------------- 9.71 ..END :