B-127838, JUN. 29, 1956

B-127838, JUN. 29, 1956

TO THE CHESAPEAKE AND OHIO RAILWAY COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST, PER FILE 2-77128 10/52 FOR REVIEW OF THE SETTLEMENT DATED FEBRUARY 21, 1956, IN CLAIM NO. TK 603129, WHICH DISALLOWED YOUR CLAIM FOR $5,649.53 AS ADDITIONAL FREIGHT CHARGES FOR THE TRANSPORTATION SERVICES UNDER GOVERNMENT BILLS OF LADING N- 31640778, DATED AUGUST 15, 1952, AND N-31640814, DATED SEPTEMBER 17, 1952.

FOR THE SERVICES ON BILL OF LADING N-31640778, COVERING FIVE CARLOADS OF SELF-PROPELLING TORPEDOES, SUBMARINE, WITHOUT EXPLOSIVES, WEIGHING A TOTAL OF 270,260 POUNDS (272,760 POUNDS LESS 2,500 POUNDS DUNNAGE), WHICH ORIGINATED AT BREMERTON, WASHINGTON, AND WHICH WERE DELIVERED AT LEE HALL, VIRGINIA, YOU CLAIMED AND WERE PAID TRANSPORTATION CHARGES IN THE AMOUNT OF $27,666.04, COMPUTED BY THE USE OF A RATE OF $8.82 PER 100 POUNDS, PLUS THE EX PARTE NO. 175 INCREASE OF 15 PERCENT. FOR THE SERVICES ON BILL OF LADING N-31640814, COVERING TWO CARLOADS OF THE SIMILAR TORPEDOES, PLUS EIGHT BOXES OF DRY CELL BATTERIES, WEIGHING A NET TOTAL OF 125,240 POUNDS, WHICH ORIGINATED AT BANGER, WASHINGTON, AND WHICH ALSO WERE DELIVERED AT LEE HALL, VIRGINIA, YOU CLAIMED AND WERE PAID TRANSPORTATION CHARGES IN THE AMOUNT OF $12,573.48, COMPUTED BY THE USE OF A RATE OF $8.73 PER 100 POUNDS, PLUS A 15 PERCENT INCREASE.

IN THE AUDIT OF THE PAYMENT VOUCHER COVERING THESE BILLS OF LADING, OUR TRANSPORTATION DIVISION DETERMINED THAT LOWER CHARGES WOULD RESULT FROM THE USE OF A COMBINATION RATE CONSTRUCTED OVER EFFNER, INDIANA, USING AS ONE FACTOR A COMMODITY RATE OF $4.00 ($3.67 INCREASED BY THE APPLICABLE EX PARTE NO. 168 INCREASE) PER 100 POUNDS NAMED IN ITEM 8510 OF EASTBOUND TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 2-R, I.C.C. 1547, AND AS THE OTHER FACTOR, ON THE NON-EXPLOSIVE TORPEDO PORTIONS OF THE SHIPMENTS, A RATE OF $1.90 PER 100POUNDS AUTHORIZED BY ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION 14-A (65 PERCENT OF THE FIRST-CLASS RATE OF $1.63 PER 100 POUNDS PUBLISHED IN CENTRAL TERRITORY RAILROADS TARIFF NO. 490-B, I.C.C. 3642, INCREASED BY THE APPLICABLE EX PARTE NOS. 162, 166, AND 168 INCREASES), PLUS 15 PERCENT ON THE CHARGES, AS PROVIDED BY EX PARTE NO. 175. ON THE 1,000 POUNDS OF BATTERIES INCLUDED IN ONE OF THE SHIPMENTS, THERE WAS APPLIED BEYOND EFFNER A CLASS-40 RATE OF $1.16 PER 100 POUNDS AS AUTHORIZED BY CENTRAL TERRITORY RAILROADS (EXCEPTIONS) TARIFF NO. 130 C, I.C.C. 3926, ITEM 6870, AND BY CENTRAL TERRITORY RAILROADS TARIFF NO. 490-B, I.C.C. 3642, ON A RULE 10 BASIS. THE APPLICATION OF THE ABOVE BASES REFLECTED OVERPAYMENTS TOTALING $13,391.95, FOR WHICH A NOTICE OF OVERPAYMENT (GENERAL ACCOUNTING OFFICE FORM 1003) WAS ISSUED. IN RESPONSE TO THE NOTICE OF OVERPAYMENT, YOU REFUNDED ON THE INVOLVED BILLS OF LADING A TOTAL OF $7,742.42, COMPUTED BY THE USE OF THE ABOVE-MENTIONED RATE OF $4.00 TO EFFNER, INDIANA, AND THE RATE OF $1.16 BEYOND EFFNER ON THE BATTERIES, CONSISTENT WITH THE NOTICE OF OVERPAYMENT, AND A RATE OF $3.15 PER 100 POUNDS ON THE TORPEDOES BEYOND EFFNER TO DESTINATION, IT BEING YOUR CONTENTION THAT ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION 14-A WAS NOT APPLICABLE IN ESTABLISHING A FACTOR OF A THROUGH RATE WHEN USED IN CONJUNCTION WITH A PUBLISHED TARIFF. IN SUPPORT OF THIS CONTENTION, YOU MADE REFERENCE TO OUR DECISION DATED OCTOBER 9, 1951, B-98076.

CONCERNING THE CONSTRUCTION OF A COMBINATION THROUGH RATE, USING AS ONE FACTOR A TARIFF RATE AND AS THE OTHER FACTOR A SECTION 22 QUOTATION RATE, THERE IS FOR CONSIDERATION SECTION 22 QUOTATION NO. 14 A, AMENDMENT NO. 19, WHICH PROVIDES THAT THE CARRIERS PARTICIPATING THEREIN AGREE TO ACCEPT

"WITHIN AND BETWEEN OFFICIAL (INCLUDING I.F.A.), SOUTHERN, SOUTHWESTERN AND WESTERN TRUCK LINE TERRITORIES AND THE NORTHERN SECTION OF MINNESOTA AND THE DAKOTAS:

"ON SHIPMENTS ON AND AFTER JULY 1, 1946, CLASS OR COLUMN 65 (WHERE CLASS OR COLUMN 65 IS NOT PUBLISHED, 65 PERCENT OF FIRST CLASS * * *) IN EFFECT BY TARIFF ON THE DATE OF SHIPMENT FROM POINT OF ORIGIN, SUBJECT TO CARLOAD MINIMUM WEIGHT OF 50,000 POUNDS.'

THUS, IT APPEARS THAT SECTION 22 QUOTATION NO. 14-A PROVIDES FOR THE APPLICATION OF RATES ON CERTAIN SPECIFIED COMMODITIES "WITHIN AND BETWEEN" NAMED TERRITORIES, AND THERE IS NO PROVISION IN THE QUOTATION EXPRESSLY OR IMPLIEDLY PRECLUDING ITS APPLICABILITY FOR THE PURPOSE OF CONSTRUCTING THROUGH RATES.

OUR DECISION OF OCTOBER 9, 1951, PARTLY WAS TO THE EFFECT THAT THE REDUCED RATES NAMED IN CERTAIN SECTION 22 QUOTATIONS WERE INAPPLICABLE IN THE CONSTRUCTION OF COMBINATION THROUGH RATES BECAUSE THE PARTICULAR QUOTATIONS NAMED "SPECIFIC RATES FOR APPLICATION ON DESCRIBED TRAFFIC FROM DEFINITELY NAMED POINTS TO DEFINITELY NAMES POINTS, THE ROUTE OR DISTANCE BETWEEN WHICH CONSTITUTES ONLY A PART OF THE THROUGH ROUTES OR DISTANCES TRAVERSED BY THE SHIPMENTS INVOLVED.' SECTION 22 QUOTATION NO. 14-A NAMES RATES, OR A BASIS FOR RATES, OTHER THAN SUCH SPECIFIC RATES FROM AND TO DEFINITELY NAMED POINTS, AND, IN THE CASE OF THE SUBJECT SHIPMENTS, IT DOES NOT SEEM THAT THERE COULD BE A VALID OBJECTION TO THE APPLICATION OF A TARIFF RATE, OTHERWISE LEGALLY APPLICABLE, AS ONE FACTOR OF A COMBINATION RATE, AND, AS THE OTHER FACTOR, A GENERAL BASIS SECTION 22 QUOTATION RATE SUCH AS THAT INVOLVED IN THIS CASE.

IT APPEARS THAT THE SETTLEMENT WAS CONSISTENT WITH THE FOREGOING AND, ACCORDINGLY, IT IS SUSTAINED.