B-128003, OCT. 24, 1956

B-128003, OCT. 24, 1956

TO AUDITOR FREIGHT RECEIPTS, MISSOURI PACIFIC RAILROAD COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT DATED DECEMBER 12, 1955, WHICH DISALLOWED YOUR CLAIM, PER BILL NO. 13448A, FOR $88.35, ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF FIVE SHIPMENTS OF FREIGHT AUTOMOBILES FROM ST. LOUIS, MISSOURI, TO FORT CROOK, NEBRASKA, UNDER BILLS OF LADING WQ-13283001, WQ- 13283006, WQ-13283009, WQ-13283010, AND WQ 13283011, IN JANUARY 1943.

FOR THESE SERVICES, YOU CLAIMED INITIALLY AND WERE PAID CHARGES OF $126.15 PER SHIPMENT, COMPUTED AT A GROSS RATE OF 81 CENTS PER 100 POUNDS REDUCED BY APPROPRIATE LAND-GRANT DEDUCTIONS ACCOUNT OF LAND GRANT DISTANCE VIA THE ROUTE OF THE MISSOURI PACIFIC RAILWAY COMPANY BETWEEN ORIGIN AND DESTINATION. IN THE AUDIT HERE, THE ALLOWABLE CHARGES WERE DETERMINED TO BE $108.48 PER SHIPMENT, ON THE BASIS OF A NET RATE APPLYING VIA ANOTHER AND MORE ADVANTAGEOUS LAND-GRANT ROUTE, AND THE RESULTANT OVERPAYMENT OF $88.35 WAS RECOVERED BY APPROPRIATE DEDUCTION FROM AN AMOUNT OTHERWISE DUE YOUR COMPANY FOR OTHER SERVICES.

IT SEEMS TO BE YOUR CONTENTION, IN YOUR REQUEST FOR REVIEW, THAT AS A COMMODITY RATE IS PUBLISHED IN WESTERN TRUCK LINES TARIFF NO. 377 SERIES TO APPLY BETWEEN ORIGIN AND DESTINATION VIA THE MISSOURI PACIFIC DIRECT, AN AGGREGATE OF INTERMEDIATE RATES EQUALING SUCH RATE CANNOT BE USED TO COMPUTE A LOWER NET RATE VIA ANOTHER ROUTE BECAUSE A COMMODITY RATE TAKES PRECEDENCE OVER AN AGGREGATE OF INTERMEDIATE RATES UNLESS SUCH AGGREGATE IS LOWER THAN THE THROUGH RATE. FURTHERMORE, IT SEEMS TO BE YOUR FEELING THAT YOUR LAND-GRANT EQUALIZATION AGREEMENT MERELY PROVIDES THAT THE GOVERNMENT "IS ENTITLED TO LAND GRANT AFTER THE COMMERCIAL OR THE LOWEST THRU RATE PUBLISHED IS PROTECTED.'

AT THE TIME THESE SHIPMENTS MOVED THE LAWFUL RATE BETWEEN ORIGIN AND DESTINATION VIA THE MISSOURI PACIFIC DIRECT WAS THE COMMODITY RATE PUBLISHED IN WESTERN TRUNK LINES TARIFF NO. 377-B, AGENT L. E. KIPP'S I.C.C. NO. A-3344. HOWEVER, THE GOVERNMENT COULD HAVE ROUTED THESE SHIPMENTS VIA THE ILLINOIS CENTRAL RAILROAD TO LA SALLE, ILLINOIS, THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD TO BURLINGTON, IOWA, AND THE CHICAGO, BURLINGTON AND QUINCY RAILROAD BEYOND. THE THROUGH RATE VIA THIS ROUTE IS A CLASS RATE PUBLISHED IN WESTERN TRUNK LINES TARIFF NO. 232-A, AGENT L. E. KIPP'S I.C.C. NO. 2594. BY THE PROVISIONS OF ITEM NO. 60-H, OF SUPPLEMENT NO. 111, OF THE CITED TARIFF, THAT CLASS RATE MAY BE DISPLACED BY A LOWER AGGREGATE OF INTERMEDIATE RATES AND SUCH AGGREGATE BECOMES THE LAWFUL THROUGH RATE FOR APPLICATION VIA THAT ROUTE. AT THE TIME OF THIS MOVEMENT, THERE WERE PUBLISHED IN WESTERN TRUNK LINES TARIFFS NOS. 377-B AND 376-B, RATES OF 48 CENTS AND 33 CENTS PER 100 POUNDS TO AND BEYOND KANSAS CITY, MISSOURI. THE AGGREGATE OF THESE RATES IS LESS THAN THE CLASS RATE PUBLISHED IN WESTERN TRUNK LINES TARIFF NO. 232-A AND, BY VIRTUE OF THE CITED ITEM NO. 60-H, BECAME THE LAWFUL RATE APPLICABLE ON SHIPMENTS OF THE KIND HERE CONCERNED BETWEEN ST. LOUIS AND FORT CROOK VIA THE ILLINOIS CENTRAL TO LA SALLE, THE ROCK ISLAND TO BURLINGTON AND THE BURLINGTON BEYOND. THIS WAS THE RATE, LESS APPROPRIATE LAND-GRANT DEDUCTIONS, WHICH WAS USED IN THE AUDIT HERE TO COMPUTE THE ALLOWABLE CHARGES ON THESE SHIPMENTS AND WAS AVAILABLE FOR USE BECAUSE OF YOUR COMPANY'S FREIGHT LAND-GRANT EQUALIZATION AGREEMENT.

THE AGREEMENT PROVIDES, IN PERTINENT PART, THAT YOUR COMPANY AGREES "TO ACCEPT FOR THE TRANSPORTATION OF PROPERTY SHIPPED FOR ACCOUNT OF THE GOVERNMENT OF THE UNITED STATES AND FOR WHICH THE GOVERNMENT OF THE UNITED STATES IS LAWFULLY ENTITLED TO REDUCED RATES OVER LAND-GRANT ROADS, THE LOWEST NET RATES LAWFULLY AVAILABLE, AS DERIVED THROUGH DEDUCTIONS ACCOUNT OF LAND-GRANT DISTANCE FROM LAWFUL RATES FILED WITH THE INTERSTATE COMMERCE COMMISSION OR THE VARIOUS STATE COMMISSIONS APPLYING FROM POINT OF ORIGIN TO DESTINATION AT TIME OF MOVEMENT.'

AS SHOWN ABOVE, THE NET RATE USED HERE WAS, AT THE TIME OF MOVEMENT, LAWFULLY AVAILABLE TO THE UNITED STATES HAD THE GOVERNMENT CHOSEN TO SHIP VIA THE ILLINOIS CENTRAL, THE ROCK ISLAND AND THE BURLINGTON AND BECAME APPLICABLE TO THESE SHIPMENTS BY VIRTUE OF YOUR COMPANY'S LAND GRANT EQUALIZATION AGREEMENT. ACCORDINGLY, PAYMENT OF YOUR CLAIM IS DECLINED. IN THIS SITUATION IT DOES NOT APPEAR THAT THERE IS ANY BASIS FOR ADOPTION OF THE SO-CALLED T-109 PROCEDURE.