B-125321, SEP. 13, 1956

B-125321, SEP. 13, 1956

TO SOUTHERN PACIFIC COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST, PER FILE YG 85-8729, FOR REVIEW OF THE SETTLEMENT DATED OCTOBER 27, 1953 (CLAIM NO. TK-480836), WHICH DISALLOWED YOUR CLAIM FOR AN ADDITIONAL ALLOWANCE OF $65.01 FOR TRANSPORTING A CARLOAD OF LUMBER OR TIMBERS, ROUGH OR DRESSED, WEIGHING 81,260 POUNDS, FROM MCNEIL ISLAND, WASHINGTON, TO STOCKTON, CALIFORNIA, UNDER BILL OF LADING NO. WV-2969573, DATED JANUARY 12, 1951.

THE RECORD SHOWS THAT THE SHIPMENT ORIGINALLY WAS CONSIGNED TO LATHROP, CALIFORNIA, AND WAS TENDERED TO THE PUGET SOUND FREIGHT LINES ON JANUARY 12, 1951. THE SHIPMENT WAS ROUTED ,PSFL-NP-SP" AND MOVED TO LATHROP, AND YOUR BILL NO. F-8729-A SHOWS THAT AT THAT POINT IT WAS DIVERTED TO STOCKTON, CALIFORNIA. FOR THIS TRANSPORTATION YOU ORIGINALLY CLAIMED FREIGHT CHARGES OF $593.20 ON YOUR BILL NO. F-8729, COMPUTED ON THE BASIS OF A COMBINATION OF RATES CONSTRUCTED 65 CENTS AND 8 CENTS PER 100 POUNDS TO AND BEYOND LATHROP, AS PUBLISHED IN ITEM NO. 3010-A OF SUPPLEMENT NO. 145 TO PACIFIC SOUTH COAST FREIGHT BUREAU TARIFF NO. 80-H AND IN PACIFIC SOUTH COAST FREIGHT BUREAU TARIFF NO. 255-E, AGENT J. P. HAYNES' I.C.C. NOS. 1407 AND 1513, RESPECTIVELY. THE CHARGES WERE PAID AS CLAIMED ON VOUCHER NO. 203881 OF THE MARCH 1951 ACCOUNT OF S. E. SIGNAL. THEREAFTER, YOU CLAIMED ADDITIONAL FREIGHT CHARGES OF $65.01 IN YOUR SUPPLEMENTAL BILL NO. F-8729-A, COMPUTED ON THE BASIS OF A COMBINATION OF RATES MADE UP OF A LOCAL RATE OF 8 CENTS PER 100 POUNDS FROM MCNEIL ISLAND TO OLYMPIA, WASHINGTON, A 65-CENT RATE FROM OLYMPIA TO LATHROP, AND AN 8-CENT RATE BEYOND.

BY THE SETTLEMENT OF OCTOBER 27, 1953, YOUR SUPPLEMENTAL CLAIM WAS DISALLOWED BECAUSE THE 65-CENT RATE FROM OLYMPIA TO LATHROP WAS APPLICABLE VIA THE PUGET SOUND FREIGHT LINES FROM OLYMPIA TO TACOMA, WASHINGTON, THROUGH MCNEIL ISLAND, AN INTERMEDIATE POINT, AND ITEM 70 B OF SUPPLEMENT 119 TO THE CITED TARIFF NO. 80-H AUTHORIZED THE APPLICATION OF THE OLYMPIA RATE FROM AN INTERMEDIATE POINT.

IN REQUESTING REVIEW OF THE SETTLEMENT YOU URGE THAT MCNEIL ISLAND IS NOT CONSIDERED INTERMEDIATE BETWEEN OLYMPIA AND TACOMA, WASHINGTON, AND THAT THE PUGET SOUND FREIGHT LINES, WHICH OPERATES WATER SERVICE BETWEEN SEATTLE, TACOMA, AND VARIOUS OTHER PUGET SOUND POINTS, MAINTAINS NO DIRECT SERVICE WHEREBY MCNEIL ISLAND IS CONSIDERED BY THEM AS AN INTERMEDIATE POINT.

THE CITED TARIFF ITEM NO. 70-B, BEARING THE TITLE "COMMODITY RATES APPLICABLE FROM INTERMEDIATE POINTS," PROVIDES, IN PERTINENT PART:

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

THERE IS NOTHING IN THIS ITEM RESTRICTING OR QUALIFYING THE INTERMEDIATE APPLICATION OF RATES WHICH PREVENTS SUCH APPLICATION FROM POINTS ON THE PUGET SOUND FREIGHT LINES.

AN INTERMEDIATE PROVISION ESTABLISHES SPECIFIC RATES JUST AS POSITIVELY, PLAINLY AND LEGALLY FROM UNNAMED INTERMEDIATE POINTS AS IF SUCH POINTS WERE SPECIFICALLY NAMED. MILLER AND LUX V. SOUTHERN PACIFIC COMPANY, 102 I.C.C. 137, 139; FRUEN GRAIN COMPANY V. LA CROSSE AND SOUTHEASTERN RAILWAY COMPANY, ET AL., 132 I.C.C. 747, 748; LUSTBURG NAST COMPANY V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, ET AL., 229 I.C.C. 684, 685; FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA V. SOUTHERN PACIFIC COMPANY, ET AL., 243 I.C.C. 157, 159. IF CARRIERS PARTIES TO A TARIFF DEEM A ROUTE UNNATURALLY OR UNDULY CIRCUITOUS, OR FOR ANY REASON DESIRE TO EXCEPT IT FROM THE APPLICATION OF THE GENERAL TERMS OF AN INTERMEDIATE RULE, THEY SHOULD SO PROVIDE BY APT AND CLEAR LANGUAGE. UNION UNDERWEAR COMPANY V. FRANKFORT AND CINCINNATI RAILROAD COMPANY, ET AL., 214 I.C.C. 695, 697; WILBANKS AND PIERCE, INC. V. ATLANTA AND WEST POINT RAILROAD COMPANY, ET AL., 235 I.C.C. 371, 374. CONCERNING THE EFFECT OF TARIFF INTERMEDIATE RULES SEE REVERE COPPER AND BRASS, INC. V. SOUTHERN STEAMSHIP COMPANY, ET AL., 263 I.C.C. 625, 627, WHERE IT WAS STATED--

"* * * TO INTERPRET THE RULE AS DESIRED BY THE DEFENDANT WOULD REQUIRE A MODIFICATION OF THE RULE TO APPLY ONLY TO POINTS OF ORIGIN ON THE RAIL PORTIONS OF THE RAIL-WATER HAULS, A RESTRICTION WHICH HAS NO FOUNDATION IN THE TERMS OF THE RULE OR IN THE PROVISIONS OF THE TARIFF READ AS A WHOLE. IN THE ABSENCE OF SUCH A RESTRICTION, NO SOUND REASON APPEARS WHY AN INTERMEDIATE RULE, PUBLISHED IN CONNECTION WITH A RAIL-AND-WATER RATE DOES NOT ESTABLISH THAT RATE FOR WATER MOVEMENT FROM THE PORT AT WHICH THE TRAFFIC IS INTERCHANGED WITH THE WATER LINE. NOR DOES THE FACT THAT THE DEFENDANT MERELY PARTICIPATED IN THE TARIFF AS A DESTINATION CARRIER CHANGE THE SITUATION, AS CONTENDED BY IT. SHIPPERS ARE NOT CHARGED WITH THE KNOWLEDGE OF RESTRICTIONS CONTAINED IN POWERS OF ATTORNEY ISSUED TO THE PUBLISHING AGENT, WHICH, LIKE CONCURRENCES, ARE NOT POSTED IN THE SAME MANNER AS ARE TARIFFS. HEALY AND TOWLE V. CHICAGO AND N.W. RY. CO., 43 I.C.C. 83. NATIONAL-AMERICAN WHOLESALE LBR. ASSN. V. A.C.L.R. CO., 120 I.C.C. 665.

ON THE PRESENT RECORD, THE SETTLEMENT OF OCTOBER 27, 1953, DISALLOWING YOUR CLAIM, DOES NOT APPEAR TO HAVE BEEN IN ERROR AND, ACCORDINGLY, IT IS SUSTAINED.