B-123979, DEC. 2, 1955

B-123979, DEC. 2, 1955

TO MR. A. M. DRYER, AUDITOR OF PASSENGER ACCOUNTS, CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, PER YOUR FILE C-352--- MILK AND CREAM SHIPMENTS--- INTERLINE-ST. L.-S.F. RY., FOR AN ALLOWANCE OF ADDITIONAL CHARGES OF $790.30 CLAIMED AS OUT-OF-POCKET EXPENSE IN CONNECTION WITH THE HANDLING OF 14 SHIPMENTS OF FLUID MILK IN QUART FIBRE CONTAINERS IN INTRA- TERMINAL SERVICE AT CHICAGO, THE SHIPMENTS BEING DESTINED TO PENSACOLA, FLORIDA.

THESE SHIPMENTS MOVED IN JUNE AND JULY 1943 UNDER BILLS OF LADING, WHICH SHOW THE SHIPMENTS AS ORIGINATING AT HEALY STATION, CHICAGO, ILLINOIS, ON THE CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD, AND THAT PASSENGER TRAIN SERVICE WAS REQUESTED. PAYMENT, MADE IN JANUARY 1944, TO THE TRUSTEES OF THE ST. LOUIS-SAN FRANCISCO COMPANY, WHO AS DELIVERING CARRIER BILLED THE CHARGES FOR THIS SERVICE, WAS AUDITED BY US IN 1946 AND AN OVERPAYMENT DETERMINED BECAUSE OF THE CARRIER'S FAILURE TO MAKE DEDUCTION FOR LAND GRANT. THEREAFTER THE CARRIER SOUGHT A FURTHER ALLOWANCE ON THE BASIS THAT THE LAND-GRANT DEDUCTION WAS EXCESSIVE AND ITS CLAIM ON THAT PREMISE WAS DISALLOWED IN SETTLEMENT TK-162058, DECEMBER 19, 1949. CONNECTION WITH THE CONSIDERATION OF THAT CLAIM A FURTHER OVERPAYMENT WAS DETERMINED, COLLECTION OF WHICH HAS BEEN EFFECTED.

THE RECORD REFLECTS THAT IN YOUR CONFERENCES WITH OUR TRANSPORTATION DIVISION IT WAS INDICATED THAT UNDER THE NORMAL PROCEDURE, ANY FURTHER CLAIM IN CONNECTION WITH THIS SERVICE SHOULD BE PRESENTED BY OR THROUGH THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY. IT IS UNDERSTOOD THAT YOUR PRESENT SUBMISSION DIRECTLY TO US IS INTENDED TO SOLICIT OUR VIEWS AS TO THE SUFFICIENCY OF THE BASIS YOU PROPOSE AND AS A PRELIMINARY TO THE FILING OF BILLS LATER THROUGH THE NORMAL PROCEDURE IN EVENT THE PROPOSED BASIS IS CONSIDERED ADEQUATE FOR YOUR PURPOSES. IN THE CIRCUMSTANCES, FURTHER OBJECTION TO THE CONSIDERATION OF YOUR SUBMISSION WILL NOT BE TAKEN IN THIS INSTANCE.

YOU STATE THAT THE CHARGES FOR THE LINE-HAUL TRANSPORTATION INVOLVED IS NOT IN DISPUTE BUT YOU SEEK A FURTHER ALLOWANCE ON THE BASIS THESE SHIPMENTS WERE ACCORDED "SPECIAL INTRA-TERMINAL SERVICE FROM THE PLANT OF THE BORDEN-WIELAND MILK COMPANY, HEALY, ILLINOIS, TO CENTRAL STATION (12TH ST.) CHICAGO, ILLINOIS, BY THE CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, TO MEET THE EXPEDITED AND CAREFULLY SUPERVISED DAILY SERVICE SCHEDULES DESIGNATED BY THE OFFICE OF THE QUARTERMASTER GENERAL, CHICAGO, ILLINOIS," IN LETTERS TO YOUR COMPANY DATED MAY 15, 1943, AND MAY 27, 1943. YOU CONCLUDE THAT IN THOSE CIRCUMSTANCES THE "ESTABLISHED FREIGHT SWITCHING DIVISIONS DO NOT APPLY FROM THE INDUSTRY SIDING TO THE RAILROAD PASSENGER STATION.'

IN THE LETTER OF MAY 15, 1943, FROM THE OFFICE OF THE QUARTER-MASTER GENERAL IN CHICAGO, YOUR COMPANY WAS INFORMED OF THE DESIRE TO EXPLORE THE POSSIBILITY OF HANDLING SHIPMENTS OF MILK, DESTINED TO SOUTHERN AND SOUTHEASTERN MILITARY INSTALLATIONS, DIRECTLY FROM THE BORDEN COMPANY PLANT, LOCATED IN THE HEALY SWITCHING DISTRICT. IT WAS INDICATED THAT SUCH SHIPMENTS FORMERLY HAD BEEN TRUCKED TO VARIOUS LOADING PLATFORMS OF OUTBOUND CARRIERS IN CHICAGO AND MOVED UNDER THE RATE BASIS COVERED BY CPA -M AND C TARIFF NO. 3, AND THAT THE EXPLORATION AS TO HANDLING IN CARS DIRECTLY FROM THE BORDEN PLANT AT HEALY WAS DUE TO THE BELIEF THAT SUCH HANDLING UNDER THE CITED TARIFF WOULD INVOLVE CONSIDERABLE SPECIAL SWITCHING EXPENSE. IT WAS STATED THAT THE VENDOR COULD ARRANGE TO RELEASE THE CARS BY 10 A.M. OF EACH DAY IF PLACED ON THEIR SIDING FOR EARLY MORNING LOADING. THIS APPARENTLY WAS CHANGED TO 11 A.M. ADVICE WAS REQUESTED AS TO WHETHER DELIVERY OF SUCH SHIPMENTS, SO LOADED AND RELEASED BY THE SHIPPER, COULD BE MADE TO OTHER DESIGNATED ROADS IN TIME TO ENABLE MOVEMENT FROM CHICAGO OVER THOSE ROADS IN SPECIFIED TRAINS SCHEDULED TO DEPART AT VARIOUS TIMES FROM 1:45 P.M. TO 11:30 P.M. THE LETTER OF MAY 27, 1943, RECITED THAT TELEPHONE ASSURANCE HAD BEEN GIVEN BY THE CARRIER THAT NECESSARY SERVICE WOULD BE PLACED IN EFFECT TO ASSURE EARLY EVENING DEPARTURES, INCLUDING SUNDAYS, VIA PENNSYLVANIA RAILROAD TRAIN NO. 236, SCHEDULED TO LEAVE CHICAGO AT 9:20 P.M., AND VIA ILLINOIS CENTRAL TRAINS NO. MS-1 SCHEDULED TO DEPART AT :30 P.M. WEEKDAYS, AND NO. 29 AT 5:30 P.M. ON SUNDAYS. BOTH THE PENNSYLVANIA RAILROAD AND THE ILLINOIS CENTRAL WERE REPRESENTED AS REQUIRING RECEIPT OF THE SHIPMENT AT LEAST ONE HOUR PRIOR TO SCHEDULED TRAIN DEPARTURE. THUS, THE ARRANGEMENTS CONSUMMATED SEEM TO HAVE CONTEMPLATED THAT THE CARS TO BE MOVED WOULD BE RELEASED FOR YOUR HANDLING NOT LATER THAN 11:00 A.M. AND WERE NOT REQUIRED TO BE DELIVERED TO THE ILLINOIS CENTRAL UNTIL 6:30 P.M. WEEKDAYS AND 4:30 P.M. SUNDAYS OR TO THE PENNSYLVANIA RAILROAD UNTIL 8:20 P.M.

CONCERNING THE "CONSIDERABLE SPECIAL SWITCHING EXPENSE" CONSIDERED BY THE OFFICE OF THE QUARTERMASTER GENERAL AS INVOLVED IF THE SHIPMENTS WERE TO BE HANDLED BY YOU UNDER CPA-M AND C TARIFF NO. 3 DIRECTLY FROM THE BORDEN PLANT AT HEALY, IT IS OBSERVED THAT CENTRAL PASSENGER ASSOCIATION JOINT TARIFF M AND C NO. 4, PUBLISHING RATES, RULES, AND REGULATIONS GOVERNING TRANSPORTATION OF DAIRY PRODUCTS IN CARLOAD LOTS, WAS EFFECTIVE FOR THE PERIOD FROM MAY 15 TO DECEMBER 31, 1943, IN LIEU OF THE RATES, RULES, AND REGULATIONS PUBLISHED IN TARIFF M AND C NO. 3, I.C.C. NO. 1274. TARIFF M AND C NO. 4 PROVIDED IN SECTION 5, RULE 1, THAT THE RATES NAMED THEREIN WOULD APPLY NOT ONLY FROM AND TO THE TRACKS, STATIONS, AND DELIVERING POINTS ON LINES OF THE CARRIERS PARTIES TO THAT TARIFF BUT ALSO FROM OR TO "LOADING OR DELIVERING TRACKS AND SIDINGS, OR OTHER RECEIVING AND DELIVERING POINTS ON THE LINES OF CONNECTING CARRIERS NOT PARTIES TO THIS TARIFF AS PUBLISHED IN TARIFFS ISSUED BY CARRIERS PARTIES TO THIS TARIFF AND LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.' THE CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD DOES NOT APPEAR TO BE A PARTY TO M AND C TARIFF NO. 4 BUT BOTH THE PENNSYLVANIA RAILROAD COMPANY AND ILLINOIS CENTRAL RAILROAD COMPANY ARE SHOWN AS PARTIES TO THAT TARIFF AND CHICAGO SWITCHING COMMITTEE TARIFF NO. 20-W, I.C.C. NO. 442. THE LATTER TARIFF NAMED LOCAL AND JOINT TERMINAL CHARGES, RULES, AND REGULATIONS APPLICABLE ON FREIGHT TRAFFIC FROM POINTS IN THE CHICAGO SWITCHING DISTRICT AND PROVIDED IN SECTION 10 THAT FROM POINTS WITHIN THE CHICAGO SWITCHING DISTRICT, TAKING RATE BASIS 1, TO POINTS OUTSIDE THE DISTRICT VIA JUNCTIONS WITHIN THE DISTRICT, CHICAGO, ILLINOIS, RATES WOULD BE APPLIED. IN SECTION 2 HEALY, ON THE CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD, WAS NAMED AS A STATION WITHIN THE CHICAGO SWITCHING DISTRICT. THE ADJUSTMENT OF THE CHARGES AS EFFECTED IN THE AUDIT BY US GAVE EFFECT TO THE AUTHORIZATION SO PUBLISHED.

YOUR PRESENT SUBMISSION IS BASED UPON THE VIEW THAT THESE SHIPMENTS WERE ACCORDED SPECIAL HANDLING IN INTRA-TERMINAL SERVICE AND YOUR CLAIM IS PREDICATED UPON THE FACT THAT THE COST OF ACCOMPLISHING THAT SERVICE EXCEEDED THE DIVISIONS OF EARNINGS ACCORDED YOUR LINE UNDER THE ESTABLISHED FREIGHT SWITCHING DIVISION APPLICABLE TO MOVEMENTS FROM THE BORDEN PLANT AT THE HEALY STATION ON YOUR LINE IN THE SWITCHING DISTRICT OF CHICAGO. YOUR CLAIM IS FOR REIMBURSEMENT FOR THE COST OF OPERATION IN EFFECTING THE SERVICE RENDERED, WHICH YOU INDICATE TO HAVE TOTALED $790.30 FOR THE 14 CARS HERE IN QUESTION.

WHERE, HOWEVER, TARIFFS PROVIDE CHARGES FOR A GIVEN SERVICE, THE CHARGES SO PRESCRIBED ARE THE MAXIMUM THAT MAY BE ALLOWED FOR SUCH SERVICE. KNOW OF NO AUTHORITY FOR ADOPTING OPERATION COSTS AS THE MEASURE OF ALLOWABLE CHARGES IN SUCH A SITUATION. MOREOVER, WHILE THE RECORD REFLECTS THE DESIRE OF THE OFFICE OF THE QUARTERMASTER GENERAL TO HAVE THIS SERVICE PERFORMED PROMPTLY IN ORDER TO ASSURE DAILY SERVICE FROM CHICAGO, IT IS NOT APPARENT WHY THE INTERVAL BETWEEN THE TIME THE CARS WERE TO BE RELEASED FOR YOUR SERVICE AND THE TIME OF THE SCHEDULED DEPARTURES OF THE TRAINS FROM CHICAGO SHOULD NOT HAVE BEEN SUFFICIENT FOR THE REQUIRED HANDLING UNDER AVAILABLE OPERATING CONDITIONS. IN CONNECTION WITH A PRIOR CONSIDERATION OF THIS MATTER IT WAS INDICATED THAT THE CARS WERE TO BE HANDLED ON WEEKDAYS FROM THE BORDEN PLANT TO PACIFIC JUNCTION ON THE "HEALY SWITCH RUN" ABOUT NOON AND FROM PACIFIC JUNCTION TO THE WESTERN AVENUE COACH YARDS ABOUT 1:00 P.M., BY FOREMAN BELYEA ON HIS RETURN FROM DIVISION STREET, MAKING THE CARS AVAILABLE FOR MOVEMENT FROM THE COACH YARDS TO CONNECTING LINES' TRAIN FOR TRANSPORTATION TO THE SOUTHERN AND SOUTHEASTERN DESTINATIONS. ON SUNDAY THE CARS WERE TO BE HANDLED FROM HEALY TO THE UNION STATION ON THE REAR OF TRAIN NO. 144.

ACCORDINGLY, THERE DOES NOT APPEAR TO BE ANY SUFFICIENT BASIS FOR ALLOWANCE OF THE ADDITIONAL CHARGES CLAIMED.