B-129316, DECEMBER 17, 1956, 36 COMP. GEN. 466

B-129316, DECEMBER 17, 1956, 36 COMP. GEN. 466

TRANSPORTATION - TRANSIT PRIVILEGES - APPLICATION REQUIREMENT THE GOVERNMENT AS A SHIPPER, IN ORDER TO BE ENTITLED TO STORAGE IN TRANSIT PRIVILEGES UNDER A TARIFF, WHICH REQUIRES WRITTEN NOTICE OF THE SHIPPER'S INTENTION TO USE THE TRANSIT PRIVILEGE BUT DID NOT SPECIFY THE MANNER OR FORM IN WHICH THE APPLICATION IS TO BE MADE, HAS SATISFIED THE TARIFF REQUIREMENT BY SHIPPING UNDER A GOVERNMENT BILL OF LADING WHICH IS MARKED AND ENDORSED "STORAGE IN TRANSIT" AND "RECORDED FOR TRANSIT.'

TO SOUTHERN PACIFIC COMPANY, DECEMBER 17, 1956:

REFERENCE IS MADE TO YOUR FILE YG-85-577157, UNDER WHICH YOU REQUESTED REVIEW OF OUR SETTLEMENT CERTIFICATE IN CLAIM NO. TK-278039, DATED JULY 22, 1954, WHICH DISALLOWED YOUR CLAIM, PER SUPPLEMENTAL BILL D-577157, FOR $105.55 ADDITIONAL CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF A CARLOAD OF GRADERS AND TRACTORS COMBINED, FROM LATHROP, CALIFORNIA, TO RICHMOND, CALIFORNIA, ON GOVERNMENT BILL OF LADING WW-6161367, DATED MARCH 16, 1945.

FOR THE TRANSPORTATION SERVICES INVOLVED YOU ORIGINALLY CLAIMED FREIGHT CHARGES ON THE BASIS OF A THROUGH TARIFF RATE OF $1.17 PER 100 POUNDS, PLUS 3-1/2 CENTS TRANSIT CHARGE, LESS CHARGES PAID INBOUND TO THE TRANSIT POINT AND LESS 3 CENTS PER 100 POUNDS PORT ALLOWANCE, AS AUTHORIZED IN A.A.R. SECTION 22 QUOTATION NO. 16-E AND A.R.R. SECTION 22 QUOTATION NO. 265-A. SUBSEQUENTLY, YOU SUBMITTED SUPPLEMENTAL BILL D-577157 FOR $125.43 ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE BECAUSE OF AN ERROR IN DESCRIPTION OF THE PROPERTY SHIPPED, BASED ON WESTERN PACIFIC RAILROAD'S WAYBILL CORRECTION NOTICE NO. 4, DATED FEBRUARY 24, 1949. FREIGHT CHARGES ON THE SUPPLEMENTAL BILL WERE COMPUTED ON THE BASIS OF A THROUGH EXPORT TARIFF RATE OF $1.35 PER 100 POUNDS, WITH TRANSIT BEING ALLOWED UNDER THE PROVISIONS OF A.A.R. SECTION 22 QUOTATION NO. 16-E. IT WAS CONCEDED THAT THE CHANGE IN DESCRIPTION OF THE COMMODITY WAS PROPER; HOWEVER, IN THE SETTLEMENT OF THE CLAIM, OUR TRANSPORTATION DIVISION DISALLOWED THE ENTIRE AMOUNT BY REASON OF APPLICATION OF THE TRANSIT PRIVILEGE AUTHORIZED UNDER ITEM 1775 OF PACIFIC FREIGHT TARIFF BUREAU TARIFF NO. 264-D, AGENT J. P. HAYNES' I.C.C. NO. 1455, SINCE A THROUGH DOMESTIC RATE OF $1.87 PER 100 POUNDS PER ITEM 5000 OF TRANS-1CONTINENTAL FREIGHT BUREAU TARIFF NO. 1 Y, AGENT L. E. KIPP'S I.C.C. NO. 1507, LESS APPLICABLE LAND-GRANT DEDUCTIONS, RESULTING IN A NET THROUGH RATE OF $1.19591 PER 100 POUNDS, WAS FOUND TO BE PROPER.

BY LETTER DATED OCTOBER 29, 1953, YOU PROTESTED THE BASIS USED BY OUR OFFICE IN THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL, CLAIMING THAT IN APPLYING THE RATE IN ITEM 5000 OF TARIFF NO. 1-Y, AND IN DEDUCTING LAND GRANT, IT IS NECESSARY TO FIND AUTHORITY FOR THE TRANSIT PRIVILEGE AT LATHROP, CALIFORNIA, IN TARIFF NO. 264-D. YOU THEN FILED SUPPLEMENTAL BILL D-577157 FOR $105.55, BASED ON A LOCAL RATE BEYOND THE TRANSIT POINT, ASSERTING THAT TRANSIT WAS NOT AUTHORIZED AT LATHROP, CALIFORNIA, UNDER THE TERMS OF THE TARIFF NO. 264-D. YOUR CLAIM ON THAT BILL WAS DISALLOWED IN OUR SETTLEMENT DATED JULY 22, 1954, SINCE THE INBOUND BILL OF LADING WT -3530522, DATED NOVEMBER 22, 1944, FROM BERWICK, PENNSYLVANIA, WAS NOTED TO SHOW THAT THE SHIPMENT WAS BEING MADE FOR " STORAGE IN TRANSIT," AND WAS ENDORSED BY A REPRESENTATIVE OF THE GOVERNMENT AS BEING " RECORDED FOR NSIT," THEREBY NOTIFYING YOU IN WRITING OF THE GOVERNMENT'S INTENTION TO AVAIL ITSELF OF THE TRANSIT PRIVILEGE AUTHORIZED UNDER THE APPLICABLE TARIFF, IN THIS CASE ITEM 420 OF TARIFF NO. 264-D. OUR SETTLEMENT DIRECTED ATTENTION TO THE FACT THAT THE SHIPMENT FULFILLED ALL REQUIREMENTS OF A.A.R. SECTION 22 QUOTATION NO. 152-C.

THE ISSUE AS TO THIS SHIPMENT IS WHETHER THE GOVERNMENT IS ENTITLED TO TRANSIT PRIVILEGES UNDER A COMMERCIAL TRANSIT TARIFF REQUIRING WRITTEN NOTICE BY THE SHIPPER FOR A TRANSIT PRIVILEGE AS A CONDITION TO THE AVAILABILITY OF SUCH PRIVILEGE. THE PROVISIONS OF TARIFF NO. 264-D AND A.A.R. SECTION 22 QUOTATION NO. 152-C ARE FOR CONSIDERATION, SINCE WE CONTEND THAT THE PROVISIONS OF THE AFORESAID TARIFF HAVE BEEN COMPLIED WITH OR HAVE BEEN MODIFIED BY THE PROVISIONS OF A.A.R. SECTION 22 QUOTATION NO. 152-C, WHEREAS, YOU CONTEND THAT THE GOVERNMENT DID NOT COMPLY WITH THE TERMS OF ITEM 420 OF THE TARIFF AND THAT IT WAS NOT RELIEVED FROM ITS TECHNICAL REQUIREMENTS BY THAT QUOTATION.

THE PERTINENT PROVISIONS OF PACIFIC FREIGHT TARIFF BUREAU TARIFF NO. 264- D ARE CONTAINED IN ITEM 420, SECTION 1, RELATING TO TRANSIT PRIVILEGE REQUIREMENTS. THE SAID ITEM PROVIDES, AMONG OTHER THINGS, THAT TRANSIT PRIVILEGES WILL BE ACCORDED ONLY TO SHIPPERS WHO WILL " NOTIFY THE CARRIER OR ITS REPRESENTATIVE IN WRITING OF THEIR INTENTION TO AVAIL THEMSELVES OF THE TRANSIT PRIVILEGE.' IT IS ALSO PROVIDED THAT " A SHIPPER WHO FAILS OR REFUSES TO COMPLY WITH THESE RULES WILL BE DENIED TRANSIT PRIVILEGES, AND SHIPMENTS TENDERED BY SUCH SHIPPER WILL BE HANDLED AS A LOCAL SHIPMENT ORIGINATING AT THE TRANSIT STATION.' IN THIS CONNECTION, IT IS NOTED THAT QUOTATION NO. 152-C PROVIDES THAT---

THE TRAFFIC COVERED BY AND SUBJECT TO THIS QUOTATION IS PROPERTY OF THE UNITED STATES, SHIPPED BY OR FOR ACCOUNT OF THE WAR DEPARTMENT AND/OR THE NAVY DEPARTMENT, HEREINAFTER REFERRED TO AS ,THE GOVERNMENT," WHICH IS ACCORDED TRANSIT UNDER THE TERMS AND CONDITIONS OF APPLICABLE TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION OR ANY STATE REGULATORY AUTHORITY. ( ITALICS SUPPLIED.)

NOTWITHSTANDING THE PROVISIONS OF SAID TARIFFS:

(A) SURRENDER OF ORIGINAL PAID FREIGHT BILL WHERE NOW REQUIRED BY TARIFF IS WAIVED.

IT WOULD APPEAR THAT ITEM 420 OF TARIFF NO. 264-D PROVIDES ONLY THAT THE CARRIER BE NOTIFIED IN WRITING OF THE SHIPPER'S INTENTION TO AVAIL HIMSELF OF THE TRANSIT PRIVILEGE. IT SPECIFIES NEITHER THE MANNER OR FORM IN WHICH SUCH APPLICATION MUST BE MADE NOR THAT APPLICATION MUST BE MADE FOR STORAGE IN TRANSIT OF EACH SHIPMENT. WHILE THIS RECORD DOES NOT DISCLOSE THAT A SPECIFIC APPLICATION FOR THE STORAGE-IN TRANSIT PRIVILEGE WAS MADE WITH EXPRESS REFERENCE TO THE TERMS OF TARIFF NO. 264-D, IT SEEMS SUFFICIENT TO SATISFY THE REQUIREMENTS OF THE TARIFF THAT THE BILL OF LADING COVERING THE INBOUND SHIPMENT FROM BERWICK TO LATHROP, WAS MARKED " STORAGE IN TRANSIT" AND THAT IS WAS ENDORSED " RECORDED FOR TRANSIT.' ALSO, WAR DEPARTMENT A.G.O. FORM " RECORD OF TRANSIT FREIGHT BILLS AND TONNAGE CREDITS" WAS PREPARED AT THE TRANSIT POINT, LATHROP, INDICATING THAT THE SUBJECT MATERIAL WAS RECORDED FOR TRANSIT WITH THE WESTERN WEIGHING AND INSPECTION BUREAU UNDER BUREAU NO. MS-2356.

ACCORDINGLY, OUR SETTLEMENT OF JULY 22, 1954, WHICH IS CONSISTENT WITH THE FOREGOING AND IS NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE, IS SUSTAINED.