A-95173, OCTOBER 22, 1938, 18 COMP. GEN. 365

A-95173: Oct 22, 1938

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WERE PERFORMED BY THE CARRIER. THERE IS NEITHER SEPARATE CHARGE ASSESSABLE AGAINST THE SHIPPER OR CONSIGNEE FOR THE SAID SERVICES. IS UNAUTHORIZED. CHARGES WERE CLAIMED IN YOUR BILL 65472 IN THE NET AMOUNT OF $33.86 FOR SAID SHIPMENT ON THE BASIS OF DIVIDING THE COMMERCIAL CHARGE OF $46.69 OVER ATCHISON. IS SHOWN ON THE BILL AS "RR PICK-UP 5 CENTS" AND LIKEWISE THE DEDUCTION OF $1.80 WEST OF ATCHISON. IS SHOWN AS "R.R. INDICATES THAT NEITHER THE PICK-UP SERVICE AT ORIGIN NOR THE DELIVERY SERVICE AT DESTINATION WAS PERFORMED BY THE GOVERNMENT. YOUR SUPPLEMENTAL BILL IS FOR THE DIFFERENCE OF $1.02 BETWEEN THE CHARGES SO CLAIMED ORIGINALLY AND THE CHARGES SO PAID BY THE DISBURSING OFFICER.

A-95173, OCTOBER 22, 1938, 18 COMP. GEN. 365

TRANSPORTATION - LAND-GRANT DEDUCTIONS - PICK-UP AND DELIVERY SERVICE INCLUDED IN THROUGH RATES WHERE, IN CONNECTION WITH A GOVERNMENT SHIPMENT, THE PICK-UP SERVICE AT ORIGIN, AND THE DELIVERY SERVICE AT DESTINATION, WERE PERFORMED BY THE CARRIER, MAKING INAPPLICABLE THE TARIFF PROVISION FOR AN ALLOWANCE TO THE CONSIGNOR OR CONSIGNEE FOR THEIR PERFORMANCE OF SUCH SERVICE, AND THERE IS NEITHER SEPARATE CHARGE ASSESSABLE AGAINST THE SHIPPER OR CONSIGNEE FOR THE SAID SERVICES--- BUT, ON THE CONTRARY, THE THROUGH RATE INCLUDES THE SAID SERVICES--- NOR ANY TARIFF OR PROPER DIVISIONAL AUTHORITY FOR THE SEGREGATION OF AN AMOUNT AT ORIGIN AND AT DESTINATION AS ACCRUING OUT OF SAID RATE FOR THE PERFORMANCE OF THE SAID SERVICES BY THE CARRIER OR BY A CONTRACT DRAYMAN AS ITS AGENT, DEDUCTION OF ANY AMOUNT, AS FOR THE PERFORMANCE OF THE SAID SERVICES, FROM THE CHARGES COMPUTED ON THE BASIS OF THE THROUGH RATE, BEFORE DETERMINING THE APPLICABLE LAND-GRANT SAVINGS, IS UNAUTHORIZED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, OCTOBER 22, 1938:

THERE HAS BEEN CONSIDERED THE MATTER OF YOUR SUPPLEMENTAL BILL NO. 65472 FOR $1.02 AS A BALANCE CLAIMED TO BE DUE FOR TRANSPORTATION OF A SHIPMENT OF 1 BOX OF TOOLS, 85 POUNDS, AND 14 BOXES OF IRON NUTS, 3,517 POUNDS, TOTAL 3,602 POUNDS, FROM ROCK ISLAND, ILLINOIS, TO DENVER, COLORADO, UNDER BILL OF LADING WQ-1780430, DECEMBER 23, 1937.

CHARGES WERE CLAIMED IN YOUR BILL 65472 IN THE NET AMOUNT OF $33.86 FOR SAID SHIPMENT ON THE BASIS OF DIVIDING THE COMMERCIAL CHARGE OF $46.69 OVER ATCHISON, KANS., AND DEDUCTING $1.80 FROM THE EARNINGS EAST OF THAT POINT, AND A LIKE AMOUNT FROM THE EARNINGS WEST, BEFORE TAKING OUT FOR LAND GRANT. THE DEDUCTION OF $1.80 EAST OF ATCHISON, THUS TREATED IN YOUR BILL AS NOT BEING SUBJECT TO DEDUCTION FOR LAND GRANT, IS SHOWN ON THE BILL AS "RR PICK-UP 5 CENTS" AND LIKEWISE THE DEDUCTION OF $1.80 WEST OF ATCHISON, SIMILARLY TREATED, IS SHOWN AS "R.R. DELY 5 CENTS.' IN OTHER WORDS, YOUR BILL FOR THE SERVICE IN QUESTION EXCLUDED FROM THE GROSS CHARGES FOR THE SHIPMENT FIVE CENTS PER CWT. ON THE TOTAL WEIGHT AS FOR PICK-UP SERVICE AT ORIGIN AND A LIKE AMOUNT AS FOR DELIVERY SERVICE AT DESTINATION, BEFORE MAKING DEDUCTION FOR LAND GRANT, AND ADDED BACK THE PICK-UP AND DELIVERY CHARGES TO THE NET LAND-GRANT CHARGES DERIVED FROM THE BALANCE. THE BILL OF LADING SHOWS THE SHIPMENT AS HAVING BEEN RECEIVED BY THE CARRIER FROM THE QUARTERMASTER, ROCK ISLAND ARSENAL, ILLINOIS, AND AS HAVING BEEN DELIVERED BY THE CARRIER TO THE U.S. FOREST SERVICE AT DENVER, COLO., AND INDICATES THAT NEITHER THE PICK-UP SERVICE AT ORIGIN NOR THE DELIVERY SERVICE AT DESTINATION WAS PERFORMED BY THE GOVERNMENT.

THE WAR DEPARTMENT DISBURSING OFFICER MADE PAYMENT OF THE CHARGES IN THE NET AMOUNT OF $32.84, DERIVED THROUGH DEDUCTION FOR LAND GRANT FROM THE GROSS CHARGES EAST AND WEST OF ATCHISON, SUCH GROSS CHARGES NOT BEING FIRST DIMINISHED BY DEDUCTION OF ANY AMOUNT AS FOR THE PICK UP AND DELIVERY CHARGES. YOUR SUPPLEMENTAL BILL IS FOR THE DIFFERENCE OF $1.02 BETWEEN THE CHARGES SO CLAIMED ORIGINALLY AND THE CHARGES SO PAID BY THE DISBURSING OFFICER.

IT IS NOTED YOU STATE:

THE PICK-UP AND/OR DELIVERY SERVICE AS AUTHORIZED IN W.T. TL.-336 HAS THE EFFECT OF EXTENDING THE SCOPE OF THE RATE BEYOND THE PLATFORMS OR DEPOTS AT ORIGIN OR DESTINATION. ITEM 40 SPECIFIES THE AREA IN WHICH THE PICK-UP AND/OR DELIVERY SERVICE WILL BE ACCORDED. ITEMS 100 AND 110 PROVIDE THAT CARRIERS WILL PERFORM THIS SERVICE WHEN CONSIGNOR OR CONSIGNEE NOTIFIES THEM THAT THE SERVICE IS DESIRED. ITEM 220, PARAGRAPH H SPECIFIES THAT THE SERVICE WILL BE BY HIGHWAY VEHICLE ONLY. ITEM 220 MAKES OTHER VARIOUS PROVISIONS, ONE OF WHICH IS THAT WHEN THE CONSIGNOR OR CONSIGNEE PERFORMS THE SERVICE, THEY WILL BE ALLOWED 5 CENTS PER CWT.

YOUR FILE A-82869 OF JAN. 26, 1937 IN CONNECTION WITH L AND N R.R. BILL 19174-70; STATES, THAT WHERE THE SERVICE IS PERFORMED BY THE CONSIGNOR OR THE CONSIGNEE ON A GOVERNMENT SHIPMENT THIS 5 CENTS MUST BE DEDUCTED AND LAND GRANT APPLIED ON THE BALANCE. THIS DECISION RECOGNIZES THE FACT THAT LAND GRANT DOES NOT APPLY BEYOND THE RAIL TERMINI OF THE CARRIER. YOU FURTHER STATE THAT WHERE THE CONTRACT DRAYMAN OF THE CARRIER PERFORMS THE SERVICE, THEN THE LAND GRANT SHOULD BE APPLIED ON THE GROSS. YOUR STATEMENTS ARE IN CONFLICT. IF THE LAND GRANT DOES NOT APPLY BEYOND THE RAIL TERMINI OF THE ROAD HAUL CARRIER ON SHIPMENTS PICKED UP AND/OR DELIVERED BY THE UNITED STATES GOVERNMENT, THEN IT DOES NOT APPLY BEYOND THE TERMINI OF THE CARRIER ON SHIPMENTS PICKED UP AND/OR DELIVERED BY CONTRACT DRAYMAN.

THE SITUATION APPEARS TO BE THAT UNDER RATES PUBLISHED AS APPLYING FROM ROCK ISLAND, ILL., TO DENVER, COLO., THE PERTINENT TARIFF PROVIDES FOR THE PERFORMANCE, BY THE CARRIER, OF PICK-UP SERVICE FROM POINTS WITHIN SPECIFIED LIMITS FROM ITS FREIGHT DEPOT AT ORIGIN AND FOR DELIVERY SERVICE BY THE CARRIER TO POINTS WITHIN SPECIFIED LIMITS FROM ITS FREIGHT DEPOT AT DESTINATION, SUCH SERVICE TO AND FROM THE CARRIER'S DEPOTS TO BE PERFORMED WITHOUT ADDITIONAL CHARGES. THE TARIFF FURTHER PROVIDES THAT IF THE CONSIGNOR OR CONSIGNEE ELECTS TO PERFORM THE PICK-UP OR DELIVERY SERVICE AN ALLOWANCE OF FIVE CENTS PER HUNDREDWEIGHT WILL BE MADE TO THE PARTY PERFORMING SUCH SERVICE. AS NOTED HEREINABOVE THE RECORD IN THE PRESENT MATTER INDICATES THAT BOTH THE PICK-UP SERVICE AT ORIGIN AND THE DELIVERY SERVICE AT DESTINATION WERE PERFORMED BY THE CARRIER SO THAT THE PROVISION FOR FIVE CENTS PER HUNDREDWEIGHT AS AN ALLOWANCE TO THE CONSIGNOR OR CONSIGNEE FOR SUCH SERVICE WOULD HAVE NO APPLICATION. THE PUBLISHED THROUGH RATE THEREFORE APPLIED FROM THE POINT OF PICK-UP TO THE POINT OF DELIVERY AND THERE IS NO TARIFF OR PROPER DIVISIONAL AUTHORITY FOR THE SEGREGATION OF FIVE CENTS AT ORIGIN AND FIVE CENTS AT DESTINATION AS ACCRUING OUT OF SAID THROUGH RATE FOR THE PICK-UP SERVICE OR THE DELIVERY SERVICE PERFORMED BY THE CARRIER OR BY A CONTRACT DRAYMAN AS ITS AGENT.

THE QUESTION PRESENTED IN THE INSTANT MATTER IS SIMILAR TO THAT CONSIDERED BY A FORMER COMPTROLLER OF THE TREASURY IN 18 COMP. DEC. 238, 240, WHERE IT WAS SAID:

WHERE A BRIDGE, TRANSFER, OR TERMINAL SERVICE IS RENDERED BY A COMPANY FOR WHICH A SEPARATE AND DISTINCT CHARGE IS MADE, WHICH IS ADDED TO AND INCLUDED IN THE THROUGH RATE AND TO WHICH SAID COMPANY IS ENTITLED IN THE DIVISION OF THE THROUGH RATE AS SEPARATE AND DISTINCT FROM THE CHARGES FOR THE REMAINDER OF THE THROUGH SERVICE, BEING ADDITIONAL TO THE AMOUNT OTHERWISE CHARGEABLE FOR THE TRANSPORTATION, SAID CHARGE IS TO BE CONSIDERED AS A SEPARATE AND DISTINCT ITEM IN THE DIVISION OF THE RATE BY WHICH LAND-GRANT AND OTHER DEDUCTIONS ARE TO BE DETERMINED. BUT WHEN NO SUCH SEPARATE CHARGE IS MADE FOR SAID SERVICE, BUT THE EXPENSES THEREOF ARE BORNE BY THE TRANSPORTATION COMPANY AS A PART OF ITS OPERATING EXPENSES, SAID CHARGE CAN NOT BE CONSIDERED AS SEPARATE AND DISTINCT FROM THE CHARGES OF THE TRANSPORTATION COMPANY FOR ITS SERVICES, BUT MUST BE REGARDED AS INCLUDED IN AND AS A PART OF THE SAID SERVICES TREATED AS AN ENTIRETY, AND FOR WHICH THE TRANSPORTATION CHARGE IS ALLOWED.

THERE IS NO SEPARATE CHARGE ASSESSABLE AGAINST THE SHIPPER OR CONSIGNEE FOR THE PICK-UP OR THE DELIVERY SERVICE PERFORMED BY THE CARRIER ON SHIPMENTS MOVING UNDER THE RATES HERE CONCERNED. ON THE CONTRARY THE THROUGH RATE INCLUDES THE PICK-UP AND THE DELIVERY SERVICE WITHOUT ADDITIONAL CHARGE. UNDER SUCH CIRCUMSTANCES THE PRINCIPLE STATED BY A FORMER COMPTROLLER OF THE TREASURY, AS ABOVE, IS FOR APPLICATION AND THERE IS NO AUTHORITY FOR DEDUCTING FROM THE CHARGES COMPUTED ON THE BASIS OF THE THROUGH RATE ANY AMOUNT FOR THE TERMINAL PICK-UP OR DELIVERY SERVICE, THE COST OF WHICH IS BORNE BY THE CARRIER AS AN OPERATING EXPENSE. LAND- GRANT DEDUCTIONS AND EARNINGS ARE TO BE DETERMINED UPON THE BASIS OF LAND- GRANT MILEAGE TO TOTAL MILEAGE FROM THE POINT OF PICK-UP TO THE POINT OF DELIVERY. WHILE THE ACTUAL DISTANCE FROM THE POINT OF PICK-UP TO THE CARRIER'S FREIGHT DEPOT AT ORIGIN AND FROM THE CARRIER'S FREIGHT DEPOT AT DESTINATION TO POINT OF DELIVERY IS NOT SHOWN, IT WOULD SEEM THAT THE ADDITION OF SAID DISTANCE AS NON-LAND-GRANT MILEAGE TO THE DISTANCE FROM THE STATION AT ORIGIN TO THE STATION AT DESTINATION WOULD IN ALL PROBABILITY CHANGE THE PERCENTAGE OF DEDUCTION FOR LAND GRANT SO INFINITESIMALLY AS TO BE FOR ALL PRACTICAL PURPOSES NEGLIGIBLE.

THE SITUATION THAT THUS MAINTAINS WHERE THE CARRIER, OR A DRAYMAN AS ITS AGENT, PERFORMS THE PICK-UP AND DELIVERY SERVICE, IS DIFFERENT FROM THAT IN WHICH THE GOVERNMENT AS CONSIGNOR AND CONSIGNEE PERFORMS BOTH THE PICK- UP AND THE DELIVERY SERVICE. IN THE LATTER SITUATION THE SERVICE PERFORMED BY THE CARRIER BEGINS WITH ACCEPTANCE OF THE SHIPMENT AT THE ORIGIN FREIGHT DEPOT AND TERMINATES WITH THE DELIVERY OF THE SHIPMENT AT THE DESTINATION FREIGHT DEPOT. DECREASING THE COMMERCIAL CHARGES COMPUTED ON THE BASIS OF THE THROUGH RATE BY THE AMOUNT OF THE ALLOWANCES ACCRUING BY REASON OF THE PICK-UP AND DELIVERY SERVICE PERFORMED BY THE GOVERNMENT, LEAVES THE DIFFERENCE AS THE COMPENSATION REMAINING TO THE CARRIER COMMERCIALLY FOR THE DEPOT TO DEPOT TRANSPORTATION SERVICE PERFORMED. THE FACT THAT IN SUCH CIRCUMSTANCES LAND-GRANT DEDUCTION IS COMPUTED ON THE BASIS OF THE DIFFERENCE SO REMAINING AFFORDS NO BASIS FOR DEDUCTING FIVE CENTS PER HUNDREDWEIGHT FROM THE CHARGES COMPUTED ON THE BASIS OF THE THROUGH RATE, BEFORE TAKING OUT LAND GRANT, WHERE NO ALLOWANCES FOR PICK- UP AND DELIVERY SERVICES ARE INVOLVED.

ACCORDINGLY, THE BASIS ON WHICH THE CLAIM FOR $1.02, HERE CONCERNED, IS PREDICATED IS NOT AUTHORIZED AND THE CLAIM THEREFORE MUST BE AND IS DISALLOWED.