B-127554, JUN. 19, 1956

B-127554, JUN. 19, 1956

TO UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR FILE GP 22745, REQUESTING REVIEW OF OUR SETTLEMENT IN CLAIM TK-575302, DATED FEBRUARY 17, 1955, WHICH DISALLOWED YOUR CLAIM FOR $167 ADDITIONAL TO THE AMOUNT PREVIOUSLY PAID FOR COACH TRANSPORTATION FURNISHED 50 MEMBERS OF THE ARMY FROM SEATTLE, WASHINGTON, TO SALT LAKE CITY, UTAH, UNDER TRANSPORTATION REQUEST WQ 26,151,128 IN SEPTEMBER 1945.

FOR THIS SERVICE YOU CLAIMED, PER BILL P-22745, $1,027.50 BASED ON A NET PER CAPITA FARE OF $20.55 DERIVED FROM A GROSS FARE OF $24.42 BY THE DEDUCTION OF LAND GRANT AND THE MILITARY ALLOWANCE OF 3 PERCENT, APPARENTLY COMPUTED VIA THE NORTHERN PACIFIC RAILWAY TO SPOKANE, WASHINGTON, THENCE THE UNION PACIFIC RAILROAD TO DESTINATION. PAYMENT IN THE CLAIMED AMOUNT WAS MADE BY AN ARMY DISBURSING OFFICER. IN THE AUDIT OF THE PAYMENT VOUCHER HERE IT WAS DETERMINED THAT THE ALLOWABLE CHARGES WERE $860.50, BASED ON A NET PER CAPITA FARE OF $17.21 DERIVED FROM A GROSS FARE OF $24.40 BY THE DEDUCTION OF LAND GRANT AND THE MILITARY ALLOWANCE OF 3 PERCENT, CONSTRUCTED $14.84, PER NORTHERN PACIFIC RAILWAY COMPANY TERMINAL TARIFF NO. 6, I.C.C. NO. 5317, TO BUTTE, MONTANA, PLUS $9.56, PER NORTHERN PACIFIC RAILWAY COMPANY JUNCTION POINT TARIFF NO. 12, I.C.C. NO. 5321, FROM BUTTE TO SALT LAKE CITY. THE INDICATED OVERPAYMENT OF $167 WAS ADJUSTED BY DEDUCTION IN THE PAYMENT ON ANOTHER BILL. YOU RECLAIMED THE DEDUCTED AMOUNT OF $167 AND THIS CLAIM WAS DISALLOWED IN SETTLEMENT IN CLAIM TK 575302.

IN YOUR REQUEST FOR REVIEW YOU MAKE FURTHER CLAIM FOR THE AMOUNT OF $167 URGING, IN SUBSTANCE, THAT THE FARE CONSTRUCTED VIA BUTTE, BY USE OF THE NORTHERN PACIFIC RAILWAY TARIFFS APPLIED IN THE SETTLEMENT, IS NOT AN AUTHORIZED FARE UNDER THE TERMS OF JOINT MILITARY PASSENGER EQUALIZATION AGREEMENT NO. 22, IN EFFECT ON THE DATE OF THE SERVICE, AND THAT THE ROUTE VIA BUTTE IS NOT A ROUTE VIA A GATEWAY RECOGNIZED BY THE CARRIERS AS A POINT OF INTERCHANGE IN ACCORDANCE WITH THEIR ESTABLISHED PRACTICES ON COMMERCIAL TRAFFIC WITHIN THE MEANING OF AGREEMENT NO. 22.

YOUR POSITION APPEARS TO BE BASED ON THE FACT THAT AT THE TIME OF THE SERVICE THERE WAS IN EFFECT A THROUGH JOINT FARE OF $24.40 FROM SEATTLE TO SALT LAKE CITY NAMED IN NORTHWEST JOINT PASSENGER TARIFF W NO. 5, AGENT H. W. SIDDALL'S I.C.C. NO. 4642, WHICH APPLIED VIA THE ROUTE OVER WHICH YOU COMPUTED THE NET FARE BUT DID NOT APPLY OVER THE ROUTE VIA BUTTE, AS USED IN OUR SETTLEMENT. IT IS TO BE OBSERVED, HOWEVER, THAT THE COMMERCIAL FARE OF $24.40 VIA BUTTE WAS DULY AUTHORIZED BY THE ABOVE-MENTIONED NORTHERN PACIFIC JUNCTION POINT TARIFF NO. 12, IN CONJUNCTION WITH NORTHERN PACIFIC TERMINAL TARIFF NO. 6. SECTION 5, PARAGRAPH (E) OF TARIFF NO. 12, PROVIDED AS FOLLOWS:

"BASING FARES FROM JUNCTION POINTS TO DESTINATIONS ARE SHOWN IN SECTIONS 16 AND 17 AND ARE FOR USE IN THE CONSTRUCTION OF THROUGH FARES VIA SUCH JUNCTION POINTS FROM STATIONS ON THE NORTHERN PACIFIC RAILWAY COMPANY FROM WHICH JOINT FARES VIA SAME ROUTE ARE NOT PUBLISHED IN OTHER RIFFS.'

PARAGRAPH (F) OF SECTION 5 OF TARIFF NO. 12 SPECIFICALLY REFERRED TO NORTHERN PACIFIC TERMINAL TARIFF NO. 6, I.C.C. NO. 5317, AS BEING APPLICABLE FOR USE IN THE CONSTRUCTION OF THROUGH FARES AS AUTHORIZED IN ABOVE PARAGRAPH (E).

UNDER JOINT MILITARY PASSENGER EQUALIZATION AGREEMENT NO. 22 THE THROUGH COMMERCIAL FARE OF $24.40, PUBLISHED IN THE CITED NORTHWEST JOINT PASSENGER TARIFF W NO. 5, FROM SEATTLE TO SALT LAKE CITY VIA SPOKANE, IS CHARACTERIZED AS A J-1 FARE. THE FARE OF $24.40 BETWEEN THE SAME POINTS, OVER THE ROUTE VIA BUTTE, APPLIED IN THE SETTLEMENT AND CONSTRUCTED AS ABOVE INDICATED, MAY BE CHARACTERIZED, UNDER THE TERMS OF THE EQUALIZATION AGREEMENT, AS A J-2 FARE. YOUR OBJECTION TO THE USE OF THE LATTER FARE IS THAT WHEN A J-1 FARE EXISTS BETWEEN TWO POINTS VIA A GIVEN ROUTE, THE AGREEMENT PRECLUDES THE USE, FOR EQUALIZATION PURPOSES, OF A J-2, J-3, J- 4, OR J-5 FARE ESTABLISHED OVER ANOTHER ROUTE BETWEEN THE SAME POINTS. SUPPORT OF THIS CONTENTION YOU REFER TO CERTAIN PARTS OF CONDITION 1 OF THE AGREEMENT. YOU DO NOT MENTION PARAGRAPH (H) OF CONDITION 1, WHICH IS AS FOLLOWS:

"COMMERCIAL FARES VIA ANY OR ALL OF SEVERAL AUTHORIZED ROUTES ESTABLISHED AS PROVIDED FOR IN PARAGRAPHS (J1), (J2), (J3), (J4) OR (J5), IN THE ORDER OF THEIR PRECEDENCE, MAY DIFFER, BUT FARES SO ESTABLISHED ARE THE ONLY FARES AUTHORIZED TO BE USED IN ESTABLISHING NET FARES VIA THE ROUTES VIA WHICH THEY APPLY. THIS, HOWEVER, SHALL NOT AFFECT THE EQUALIZATION OF THE LOWEST NET FARE DERIVED FROM THE COMMERCIAL FARES APPLYING VIA ANY SUCH AUTHORIZED ROUTE VIA ALL OTHER AUTHORIZED ROUTES ESTABLISHED UNDER THE PROVISIONS OF PARAGRAPH (J1), (J2), (J3), (J4) OR (J5) IN THE ORDER OF THEIR PRECEDENCE, AS SUCH EQUALIZATION WILL BE MADE UNDER THE PROVISIONS OF CONDITION 4 HEREOF, PROVIDED THE ROUTE USED TO ESTABLISH THE NET FARE AND THE EQUALIZING ROUTES ARE BOTH USUALLY TRAVELED ROUTES FOR MILITARY TRAFFIC AT TIME OF MOVEMENT AND ARE ROUTES VIA GATEWAYS AND JUNCTIONS WHICH THE CARRIERS RECOGNIZE AS POINTS OF INTERCHANGE IN ACCORDANCE WITH THEIR ESTABLISHED PRACTICES ON COMMERCIAL TRAFFIC FROM POINT OF ORIGIN TO DESTINATION AT TIME OF MOVEMENT.'

IF, AS YOU CONTEND, THE EXISTENCE OF A J-1 FARE VIA A GIVEN ROUTE PRECLUDES THE USE OF A J-2, J-3, J-4, OR J-5 FARE ESTABLISHED VIA OTHER ROUTES, IT IS DIFFICULT TO PERCEIVE HOW THE PROVISIONS OF THE QUOTED PARAGRAPH (H) CAN BE GIVEN EFFECT. IN THIS CONNECTION IT IS NOTED THAT THE LAST SENTENCE OF THAT PART OF CONDITION 1 OF AGREEMENT NO. 22, PERTAINING TO J-1 FARES READS:

"WHEN THROUGH FARES ARE AVAILABLE UNDER THE PROVISIONS OF THIS SECTION, VIA ANY GIVEN LINE OR ROUTE, THEY SHALL INVARIABLY BE USED, AND SHALL TAKE PRECEDENCE OVER FARES CONSTRUCTED VIA SAME ROUTE UNDER THE PROVISIONS OF PARAGRAPHS (J2), (J3), (J4) OR (J5).'

THE INHIBITION CONTAINED IN THIS SENTENCE AGAINST THE USE OF A J-2, J-3, J-4, OR J-5 FARE WHEN THERE IS A J-1 FARE AVAILABLE IS LIMITED ONLY TO THE USE OF SUCH OTHER FARES "CONSTRUCTED VIA SAME ROUTE," AS THAT OVER WHICH THE J-1 FARE IS AVAILABLE. SUCH A QUALIFICATION WOULD NOT SEEM TO PRECLUDE THE USE OF J-2, J-3, J-4, OR J-5 FARES WHERE AVAILABLE VIA OTHER ROUTES, AND IN THAT CIRCUMSTANCE THERE WOULD NOT BE ANY CONFLICT BETWEEN THE PROVISIONS OF PARAGRAPH (H), QUOTED ABOVE, OR WITH PARAGRAPH (G) OF CONDITION 1, WHICH READS AS FOLLOWS:

"WHEN A SPECIFIC FARE IS PUBLISHED VIA A GIVEN ROUTE FROM POINT OF ORIGIN TO DESTINATION AS PROVIDED FOR IN PARAGRAPH (J1) HEREOF, OR WHEN A THROUGH FARE IS CONSTRUCTED VIA A GIVEN ROUTE FROM POINT OF ORIGIN TO DESTINATION UNDER THE PROVISIONS OF PARAGRAPHS (J2), (J3), (J4) OR (J5) HEREOF, IN THE ORDER OF THEIR PRECEDENCE, SUCH FARE IS THE ONLY FARE WHICH MAY BE USED VIA THAT ROUTE TO ESTABLISHNET FARES, AND NO OTHER FARES MAY BE CONSTRUCTED ON ANY OF THE BASES AUTHORIZED HEREIN OR ON ANY OTHER BASIS TO ESTABLISH A DIFFERENT FARE VIA SUCH ROUTE.'

YOU URGE THAT IF IT WAS THE INTENT OF CARRIERS PARTY TO NORTHWEST JOINT PASSENGER TARIFF W NO. 5 TO RECOGNIZE THE ROUTE FROM SEATTLE TO SALT LAKE CITY WITH INTERCHANGE AT BUTTE, IN ACCORDANCE WITH THEIR ESTABLISHED PRACTICE ON COMMERCIAL TRAFFIC FROM POINT OF ORIGIN TO DESTINATION AT TIME OF MOVEMENT, SUCH ROUTE WOULD HAVE BEEN INCLUDED IN THE JOINT TARIFF. HOWEVER, THE REFERRED-TO NORTHERN PACIFIC JUNCTION POINT TARIFF NO. 12, SECTION 5, PARAGRAPH (E), SPECIFICALLY PROVIDED FOR THE CONSTRUCTION OF THROUGH FARES VIA THE JUNCTION POINTS SHOWN IN SECTIONS 16 AND 17 THEREOF, WHICH INCLUDED BUTTE, "FROM STATIONS ON THE NORTHERN PACIFIC RAILWAY COMPANY FROM WHICH JOINT FARES VIA SAME ROUTE (VIA BUTTE) ARE NOT PUBLISHED IN OTHER TARIFFS.' SINCE THERE WAS NO JOINT FARE PUBLISHED FROM SEATTLE TO SALT LAKE CITY VIA BUTTE IN ANOTHER TARIFF, THE BASIS PROVIDED IN JUNCTION POINT TARIFF NO. 12 WAS BY ITS EXPRESS TERMS, APPLICABLE IN THE COMPUTATION OF FARES VIA THE BUTTE ROUTE. IT IS WELL SETTLED THAT TARIFF PROVISIONS MUST BE CONSTRUED STRICTLY, AND THAT THE INTENTIONS OF THE CARRIERS ARE CONTROLLING ONLY INSOFAR AS THEY ARE EXPRESSED IN THE LANGUAGE OF THE TARIFFS. WABASH FIBRE BOX COMPANY V. DENNY MOTOR TRANSFER COMPANY, 18 M.C.C. 291, 293. AS TO THE MATTER OF INTERCHANGE, IT IS NOT PERCEIVED HOW IT PROPERLY CAN BE CONTENDED THAT BUTTE IS NOT A POINT OF INTERCHANGE WITHIN THE MEANING OF AGREEMENT NO. 22, IN VIEW OF THE SPECIFIC TARIFF AUTHORIZATION THEREFOR.

ACCORDINGLY, AS THE SETTLEMENT WAS BASED ON A NET FARE WHICH APPEARS TO BE CONSISTENT WITH THE APPLICABLE TARIFFS AND AGREEMENT, IT IS SUSTAINED.