B-125988, AUG. 9, 1956

B-125988: Aug 9, 1956

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IS NOT INTERMEDIATE TO BALTIMORE. TO ANY POINT OF DESTINATION TO WHICH A COMMODITY RATE ON TWO OR MORE GIVEN ARTICLES FROM A GIVEN POINT OF ORIGIN AND VIA A GIVEN ROUTE IS NOT NAMED IN THIS TARIFF. WHICH POINT IS INTERMEDIATE TO A POINT TO WHICH A COMMODITY RATE ON THOSE ARTICLES IS PUBLISHED IN THIS TARIFF VIA A ROUTE THROUGH THE INTERMEDIATE POINT OVER WHICH SUCH COMMODITY RATE APPLIES FROM THE SAME POINT OF ORIGIN. APPLY TO SUCH INTERMEDIATE POINT FROM SUCH POINT OF ORIGIN AND VIA SUCH ROUTE THE COMMODITY RATE IN THIS TARIFF ON THOSE ARTICLES TO THE NEXT POINT BEYOND TO WHICH A COMMODITY RATE IS PUBLISHED HEREIN ON THOSE ARTICLES FROM THE SAME POINT OF ORIGIN VIA THE SAME ROUTE. - WHEN BY REASON OF BRANCH OR DIVERGING LINES THERE ARE TWO OR MORE "NEXT BEYOND" POINTS.

B-125988, AUG. 9, 1956

TO THE PENNSYLVANIA RAILROAD COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT (CLAIM NO. TK-249697) WHICH DISALLOWED YOUR CLAIM, PER BILL 7/1/178571-A, FOR $766.66, AS A PART OF THE CHARGES ALLEGED TO BE DUE FOR TRANSPORTING NINE MIXED CARLOAD SHIPMENTS FROM THE NAVY CLOTHING DEPOT, BROOKLYN, NEW YORK TO THE NAVAL TRAINING CENTER, BAINBRIDGE, COLORA, MARYLAND, UNDER BILLS OF LADING NOS. N-9954859, N-9955276, N 9955318, N-9955372, N- 9955402, N-9955484, N-9955489, N-9955544 AND N 9955591, DURING MAY, JUNE AND JULY, 1946.

THE SETTLEMENT SUSTAINED THE DEDUCTION OF AN OVERPAYMENT COMPUTED ON THE BASIS OF A COMBINATION OF RATES APPLYING TO AND BEYOND GREENVILLE PIERS, NEW JERSEY. YOUR OBJECTION TO THE SETTLEMENT RELATES TO THE USE OF A RATE APPLICABLE ON "ALL COMMODITIES" FROM GREENVILLE PIERS, NEW JERSEY, TO BALTIMORE, MARYLAND, PUBLISHED IN YOUR TARIFF NO. 1622-L, I.C.C. 2763, AND APPLIED AS MAXIMUM TO COLORA, MARYLAND, UNDER THE INTERMEDIATE APPLICATION OF THIS TARIFF.

IN YOUR REQUEST FOR REVIEW YOU URGE THAT ON SHIPMENTS FROM GREENVILLE PIERS, NEW JERSEY, COLORA, MARYLAND, IS NOT INTERMEDIATE TO BALTIMORE, MARYLAND, EITHER VIA THE SHORT LINE ROUTE OR VIA THE ROUTE OF OPERATION.

ITEM 20 OF TARIFF 1622-L COVERS THE INTERMEDIATE APPLICATION OF RATES AND PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SUBJECT TO THE PROVISIONS OF NOTES A, B AND C BELOW, TO ANY POINT OF DESTINATION TO WHICH A COMMODITY RATE ON TWO OR MORE GIVEN ARTICLES FROM A GIVEN POINT OF ORIGIN AND VIA A GIVEN ROUTE IS NOT NAMED IN THIS TARIFF, WHICH POINT IS INTERMEDIATE TO A POINT TO WHICH A COMMODITY RATE ON THOSE ARTICLES IS PUBLISHED IN THIS TARIFF VIA A ROUTE THROUGH THE INTERMEDIATE POINT OVER WHICH SUCH COMMODITY RATE APPLIES FROM THE SAME POINT OF ORIGIN, APPLY TO SUCH INTERMEDIATE POINT FROM SUCH POINT OF ORIGIN AND VIA SUCH ROUTE THE COMMODITY RATE IN THIS TARIFF ON THOSE ARTICLES TO THE NEXT POINT BEYOND TO WHICH A COMMODITY RATE IS PUBLISHED HEREIN ON THOSE ARTICLES FROM THE SAME POINT OF ORIGIN VIA THE SAME ROUTE.

"NOTE A:--- WHEN BY REASON OF BRANCH OR DIVERGING LINES THERE ARE TWO OR MORE "NEXT BEYOND" POINTS, APPLY THE RATE TO THE NEXT POINT (IN THIS TARIFF) WHICH ON THOSE ARTICLES FROM THE SAME POINT OF ORIGIN VIA THE SAME ROUTE RESULTS IN THE LOWEST CHARGE.'

THIS TARIFF PROVIDES NO INTERNAL ROUTING OVER YOUR LINE.

THE PENNSYLVANIA RAILROAD COMPANY MAINTAINS TWO ALMOST PARALLEL LINES FROM GREENVILLE PIERS, NEW JERSEY, TO BALTIMORE, MARYLAND, ONE VIA PHILADELPHIA, NEWARK AND PERRYVILLE, AND THE OTHER VIA PHILADELPHIA, COLORA AND PERRYVILLE. THE DIFFERENCE IN MILEAGE VIA THESE TWO ROUTES IS LESS THAN TEN MILES. THE TARIFF DOES NOT RESTRICT THE APPLICATION OF THE RATE FROM GREENVILLE PIERS TO BALTIMORE TO EITHER OF THESE TWO ROUTES AND A SHIPPER IS NOT REQUIRED TO HAVE KNOWLEDGE OF THE LOCAL OPERATING PRACTICES OF A CARRIER. SEE, IN THIS CONNECTION, CLEAN GLASS CO. V. PENNSYLVANIA RAILROAD CO., 213 I.C.C. 299; LUSTBERG NAST AND CO., INC., V. NEW YORK, NEW HAVEN AND HARTFORT RAILROAD CO., 229 I.C.C. 684 AND A. G. CHANCE CO., V. CENTRAL OF GEORGIA RAILWAY CO., 28 I.C.C. 293-295. ACCORDINGLY, IT SEEMS THAT THE RATE FROM GREENVILLE PIERS TO BALTIMORE IS PROPERLY FOR APPLICATION VIA THE ROUTE THROUGH COLORA.

HOWEVER, THERE IS PROVIDED IN THIS TARIFF A RATE OF 24 CENTS PER 100 POUNDS, CARLOAD MINIMUM WEIGHT 20,000 POUNDS, SUBJECT TO RULE 34 OF THE CONSOLIDATED FREIGHT CLASSIFICATION, WHICH APPLIES FROM GREENVILLE PIERS, NEW JERSEY, TO HARRISBURG, PENNSYLVANIA, VIA THE PENNSYLVANIA RAILROAD. THE ROUTING SHOWN IN CONNECTION WITH THIS RATE IS VIA THE PENNSYLVANIA RAILROAD DIRECT AND THERE APPEARS TO BE NO PROVISION IN THE TARIFF GOVERNING THE INTERNAL ROUTING OVER THE LINES OF THE PENNSYLVANIA RAILROAD. THUS, IT APPEARS THAT TARIFF 1622-L CONTAINS NOTHING WHICH WOULD PREVENT THE APPLICATION OF THE RATE TO HARRISBURG, PENNSYLVANIA, VIA THE ROUTE THROUGH COLORA, MARYLAND. THEREFORE, IN ACCORDANCE WITH THE PROVISIONS OF NOTE A OF ITEM 20 OF THIS TARIFF,"THE LOWEST CHARGE" RESULTS FROM THE USE OF THE HARRISBURG RATE. THE DISTANCE FROM GREENVILLE PIERS, NEW JERSEY, TO HARRISBURG, PENNSYLVANIA, VIA THE SHORT LINE OF THE PENNSYLVANIA RAILROAD IS 180 MILES, AND VIA THE ROUTE OF THE PENNSYLVANIA, THROUGH COLORA 220 MILES, WHICH RESULTS IN A MILEAGE CIRCUITY OF 22.2 PERCENT VIA THE LONGER ROUTE. IN THE ABSENCE OF TARIFF RESTRICTIONS, THE APPLICATION OF A RATE IS NOT LIMITED TO USUAL ROUTES OR TO ROUTES WHICH DO NOT INVOLVE OUT-OF-LINE HAULS. SWIFT AND CO. V. ALABAMA GREAT SOUTHERN RAILROAD CO., 263 I.C.C. 630-633. FURTHER, THE INTERSTATE COMMERCE COMMISSION STATED WITH RESPECT TO A SIMILAR SITUATION IN CITIZENS GAS AND COKE UTILITY V. ALTON AND SOUTHERN RAILROAD, 281 I.C.C. 705, 707 AND 708- 709, THAT IT "HAS MANY TIMES HAD OCCASION TO CONSTRUE THE PROVISIONS OF INTERMEDIATE-POINTRULES * * * AND IN THE ABSENCE OF SO CALLED INTERNAL ROUTING INSTRUCTIONS, WE HAVE GENERALLY NOT DISTINGUISHED BETWEEN A SITUATION WHERE THE CIRCUITY RESULTS FROM MOVEMENT OVER A SINGLE LINE AND ONE WHERE THE CIRCUITOUS ROUTE IS MADE UP OF MORE THAN ONE CARRIER.' FURTHER "THAT NO FIXED RULE CAN BE LAID DOWN FOR DETERMINING WHAT CONSTITUTES REASONABLE CIRCUITY IN INSTANCES WHERE ROUTING IS NOT CLEARLY INDICATED IN A TARIFF. WE ARE OF THE OPINION, HOWEVER, THAT, IN GENERAL, IN SITUATIONS OF THIS KIND WHERE THE ESTABLISHED RULE APPLIES ONLY OVER A SINGLE CARRIER OR SYSTEM, THE APPLICATION OF THE RATE OVER AN ALTERNATIVE ROUTE OR ROUTES WHICH REFLECT NO GREATER CIRCUITY THAN THAT USUALLY APPROVED BY US" IN SOUTHERN LIVESTOCK RATES, 272 I.C.C. 175-189,"WOULD NOT RESULT IN UNREASONABLY CIRCUITOUS ROUTING.' IN THIS INSTANCE THE CIRCUITY VIA COLORA IS ONLY 22.2 PERCENT. THIS IS CONSIDERABLY LESS THAN THE 50 PERCENT CIRCUITY GRANTED IN THE SOUTHERN LIVESTOCK CASE. SEE ALSO SINCLAIR REFINING CO. V. PENNSYLVANIA RAILROAD CO., 280 I.C.C. 75-78 AND ROBERTSON DISTRIBUTING CO., V. ST. LOUIS, SAN FRANCISCO RAILWAY CO., 286 I.C.C. 227-229.

ACCORDINGLY, THE COMBINATION OF RATES COMPOSED OF THE RATES OF 6 1/2 CENTS PRIOR TO JULY 1, 1956, AND 7.4 CENTS AFTER THAT DATE FROM BROOKLYN, NEW YORK, TO GREENVILLE, NEW JERSEY, AND THE RATES OF 24 CENTS PRIOR TO JULY 1, 1946, AND 26 CENTS PER 100 POUNDS AFTER THAT DATE FROM GREENVILLE PIERS, NEW JERSEY, TO HARRISBURG, PENNSYLVANIA, APPLIED TO COLORA, MARYLAND, UNDER THE INTERMEDIATE APPLICATION OF THE TARIFF, ARE PROPERLY FOR USE IN COMPUTING THE ALLOWABLE CHARGES ON THESE SHIPMENTS. THE CHARGES ON THESE SHIPMENTS AND THE OVERPAYMENTS ON EACH ARE AS SHOWN BELOW:

TABLE

BILL OF CHARGES DUE

LADING WEIGHT RATE S/BE PAID UNITED STATES N-9954859 36,876 30 1/2 CENTS $112.47 $138.29 $25.83 N 9955276 26,189 30 1/2 CENTS 79.88 98.21 18.33 N- 9955318 30,843 30 1/2 CENTS 94.07 115.66 21.59 N-9955372 38,016 30 1/2 CENTS 115.95 142.56 26.61 N-9955402 34,463 30 1/2 CENTS 105.11129.24

24.13 N-9955484 17,716 AS

20,000 33.4 CENTS 66.80 101.76 34.96 N 9955489 57,776 33.4 CENTS

192.97 244.97 52.00 N-9955544 15,116 AS

20,000 33.4 CENTS 66.80 101.76 34.96 N 9955591 45,900 33.4 CENTS

153.31 203.52 50.21

THE OVERPAYMENTS IN THE TOTAL AMOUNT OF $288.11 SHOULD BE REFUNDED PROMPTLY, OTHERWISE THERE WILL BE FOR CONSIDERATION THE DEDUCTION OF A LIKE AMOUNT IN MAKING PAYMENT OF OTHER CHARGES PROPERLY DUE YOUR COMPANY.