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B-129821, DEC. 3, 1957

B-129821 Dec 03, 1957
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TO ILLINOIS CENTRAL RAILROAD: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14. FOR THIS SHIPMENT A 36-FOOT FLAT CAR WAS ORDERED AND ALTHOUGH THE BILL OF LADING SHOWS THAT A 53-FOOT 6-INCH FLAT CAR WAS FURNISHED. THE RAILWAY EQUIPMENT REGISTER SHOWS THAT CAR SP 140141 WAS ACTUALLY A 40-FOOT 10-INCH FLAT CAR. FOR THIS SERVICE YOU CLAIMED AND WERE PAID $910.80. IT WAS DETERMINED THAT AN AGGREGATE OF INTERMEDIATE RATES MADE OVER LOUISVILLE. WHICH IS THE CARLOAD MINIMUM WEIGHT FOR THE SIZE OF THE CAR ORDERED AND THE SIZE OF THE CAR ACTUALLY FURNISHED. YOU ARE DUE NOTHING ADDITIONAL ON BILL OF LADING NO. AS THE RECORD DOES NOT SHOW THAT A 53-FOOT 6 INCH CAR WAS FURNISHED FOR THIS SHIPMENT. WE HAVE CONCLUDED THAT THE CHARGES FOR THIS SERVICE ARE PROPERLY GOVERNED BY THE INTERSTATE COMMERCE COMMISSION DOCKET 28300 CLASS RATES.

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B-129821, DEC. 3, 1957

TO ILLINOIS CENTRAL RAILROAD:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14, 1956, FILE G-APR 23911-A -R, ENCLOSING YOUR SUPPLEMENTAL BILL NO. APR-23911-A FOR $222.87, AND REQUESTING REVIEW OF THE SETTLEMENT WHICH DETERMINED THAT YOU HAD BEEN OVERPAID $125.12 ON GOVERNMENT BILL OF LADING NO. WY 731096 AND $95.75 ON GOVERNMENT BILL OF LADING NO. WI-1169162, INCLUDED IN YOUR BILL NO. APR- 23911 OF OCTOBER 1952.

BILL OF LADING NO. WY-731096, DATED AUGUST 27, 1952, COVERED THE TRANSPORTATION OF ONE FREIGHT AUTOMOBILE WITH TOOLS, WEIGHING 10,805POUNDS, FROM WEST CARTERET, NEW JERSEY, TO NEW ORLEANS, LOUISIANA. FOR THIS SHIPMENT A 36-FOOT FLAT CAR WAS ORDERED AND ALTHOUGH THE BILL OF LADING SHOWS THAT A 53-FOOT 6-INCH FLAT CAR WAS FURNISHED, THE RAILWAY EQUIPMENT REGISTER SHOWS THAT CAR SP 140141 WAS ACTUALLY A 40-FOOT 10-INCH FLAT CAR. FOR THIS SERVICE YOU CLAIMED AND WERE PAID $910.80, COMPUTED AT A MINIMUM WEIGHT OF 20,000 POUNDS, PRESUMABLY ON THE BASIS OF A ONE-FACTOR THROUGH SECOND-CLASS RATE OF $3.96 A 100 POUNDS, PUBLISHED IN TRUNK LINE TERRITORY TARIFF BUREAU TARIFF NO. 44-I, PLUS A 15 PERCENT INCREASE. OUR AUDIT, IT WAS DETERMINED THAT AN AGGREGATE OF INTERMEDIATE RATES MADE OVER LOUISVILLE, KENTUCKY, PRODUCED A LOWER THROUGH RATE OF $2.72 A 100 POUNDS, PLUS A 15 PERCENT INCREASE, WHICH YIELDED A CHARGE OF $563.04 BASED UPON A MINIMUM WEIGHT OF 18,000 POUNDS, WHICH IS THE CARLOAD MINIMUM WEIGHT FOR THE SIZE OF THE CAR ORDERED AND THE SIZE OF THE CAR ACTUALLY FURNISHED. THEREFORE, YOU ARE DUE NOTHING ADDITIONAL ON BILL OF LADING NO. WY-731096, AS THE RECORD DOES NOT SHOW THAT A 53-FOOT 6 INCH CAR WAS FURNISHED FOR THIS SHIPMENT.

UPON FURTHER EXAMINATION OF THE MATTER OF THE ALLOWABLE CHARGES ON THIS SHIPMENT, WE HAVE CONCLUDED THAT THE CHARGES FOR THIS SERVICE ARE PROPERLY GOVERNED BY THE INTERSTATE COMMERCE COMMISSION DOCKET 28300 CLASS RATES. ITEM NO. 46510 OF TRUNK LINE TARIFF BUREAU FREIGHT TARIFF NO. 141-B ESTABLISHES EXCEPTIONS TO THE CLASSIFICATION BASIS OF MINIMUM WEIGHTS ON FREIGHT AUTOMOBILES, BUT DOES NOT SHOW ANY CLASSIFICATION RATINGS THEREFOR. THIS TARIFF PROVIDES IN RULE 2 THAT IF NO RATING FOR AN ARTICLE IS SHOWN IN THE EXCEPTIONS, THE RATING IN THE SOUTHERN CLASSIFICATION WILL APPLY. BEFORE MAY 30, 1952, SECTION 1 OF TRUNK LINE TERRITORY TARIFF BUREAU TARIFF NO. 44-I PROVIDED THAT THE NAMED RATE BASE NUMBERS WOULD ALSO APPLY WHERE THE APPLICABLE RATING IS PUBLISHED IN THE SOUTHERN CLASSIFICATION AND THE APPLICABLE CARLOAD MINIMUM WEIGHT IS PUBLISHED IN THE EXCEPTIONS TO THE SOUTHERN CLASSIFICATIONS. HOWEVER, WITH THE ADVENT OF THE UNIFORM CLASSIFICATION AND THE DOCKET 28300 SCALE OF RATES IN MAY 1952, THIS PROVISION WAS OMITTED IN SUPPLEMENT NO. 179 OF THE TARIFF. SECTION 1, AS AMENDED, PROVIDED THAT THE RATE BASE NUMBERS APPLIED:

"WHERE APPLICABLE RATING IS PUBLISHED IN EXCEPTIONS TO SOUTHERN CLASSIFICATION, TO THE EXTENT PROVIDED FOR IN ITEM NO. 5 OF TARIFF, SUBJECT TO APPLICABLE RULES AND OTHER PROVISIONS IN EXCEPTIONS TO SOUTHERN CLASSIFICATION AND TO APPLICABLE RULES AND OTHER PROVISIONS, EXCEPT RATINGS, IN SOUTHERN CLASSIFICATION.'

SINCE NO RATING IS PUBLISHED FOR FREIGHT AUTOMOBILES IN ITEM NO. 46510 OF THE EXCEPTIONS TO THE SOUTHERN CLASSIFICATIONS FREIGHT TARIFF NO. 141-B, THE RATE BASE NUMBERS NAMED IN TARIFF NO. 44-I CANNOT BE USED TO COMPUTE THE APPLICABLE CHARGES. THE CHARGES WILL BE COMPUTED ON THE BASIS OF THE DOCKET 28300 CLASS RATES NAMED IN TRUNK LINE TERRITORY TARIFF BUREAU FREIGHT TARIFF NO. E/S 1008, AND AN AMENDED NOTICE OF OVERPAYMENT REFLECTING IN DETAIL THIS NEW BASIS WILL BE SENT TO YOU.

BILL OF LADING NO. WY-1169162, DATED AUGUST 25, 1952, COVERED A SHIPMENT OF ONE AMBULANCE, WEIGHING 5,920 POUNDS, FROM TERRA HAUTE, INDIANA, TO NEW ORLEANS, LOUISIANA. THE BILL OF LADING SHOWS THAT ALTHOUGH A 40-FOOT CAR WAS ORDERED FOR THE SHIPMENT OF THE AMBULANCE, THE ORIGIN CARRIER, THE NEW YORK CENTRAL SYSTEM, FURNISHED A 42-FOOT CAR.

FOR THE SERVICES PERFORMED YOU CLAIMED AND WERE PAID $316.25, COMPUTED ON THE BASIS OF A RATE OF $2.20 A 100 POUNDS, PLUS A 15 PERCENT INCREASE, APPLIED TO A 12,500-POUND MINIMUM WEIGHT FOR THE 42 FOOT CAR FURNISHED. IN OUR AUDIT, THE ALLOWABLE CHARGES WERE DETERMINED TO BE $218.50, COMPUTED ON THE BASIS OF AN EXCEPTION RATING OF CLASS 75, FOR SET-UP PASSENGER AUTOMOBILES, NAMED IN ITEM NO. 1085 E OF SUPPLEMENT NO. 78 TO SOUTHERN PORTS FOREIGN FREIGHT COMMITTEE FREIGHT TARIFF NO. 1030-C. THE CLASS 75 RATE OF $1.90 A 100 POUNDS, SUBJECT TO A 15 PERCENT INCREASE WAS APPLIED TO A 10,000-POUND MINIMUM WEIGHT, APPLICABLE TO THE 40-FOOT CAR ORDERED. THE EXCEPTION RATING NAMED IN ITEM NO. 1085-3 IS SUBJECT TO THE CONDITION THAT THE MINIMUM WEIGHT SHALL BE THAT PROVIDED FOR THE CAR USED IN EVERY CASE. THE OVERPAYMENT OF $97.75 WAS RECOVERED BY DEDUCTION, AND YOU CONTEND THAT THE EXCEPTION RATING NAMED IN ITEM NO. 1085-E DOES NOT INCLUDE AMBULANCES, AND THAT IF IT HAD MEANT TO INCLUDE THEM, THE ITEM WOULD HAVE SO STATED. THIS CONTENTION IS SIMILAR TO THAT OF THE DEFENDANT CARRIER IN DIAMOND T MOTOR CAR CO. V. HAWKEYE MOTOR EXP., INC., 48 N.C.C. 123, WHERE THE INTERSTATE COMMERCE COMMISSION HELD THAT THE TERM "AUTOMOBILE" IS A GENERIC TERM DESIGNATING ANY VEHICLE DESIGNED FOR ROAD TRAVEL AND CONTAINING ITS SOURCE OF POWER WITHIN ITSELF. THIS CLEARLY INCLUDED AMBULANCES AND, IN THE ABSENCE OF A CLEAR LIMITATION IN THE PERTINENT TARIFF ITEM, THE RATE PROVIDED FOR PASSENGER AUTOMOBILES APPLIES TO THE SUBJECT AMBULANCE.

WITH REGARD TO THE PROPRIETY OF ASSESSING FREIGHT CHARGES BASED UPON THE SIZE OF THE CAR FURNISHED AT THE CARRIER'S CONVENIENCE, RATHER THAN UPON THE SIZE OF THE CAR ORDERED BY THE SHIPPER, THIS QUESTION IS ONE OF THE ISSUES BEFORE THE COURT OF CLAIMS IN BALTIMORE AND OHIO RAILROAD COMPANY V. UNITED STATES, C.CLS. NO. 275-55, WHICH HAS BEEN PRESENTED TO THE INTERSTATE COMMERCE COMMISSION UNDER AN ORDER OF THE COURT DATED FEBRUARY 6, 1957, FOR A DETERMINATION OF THE PROPER CHARGES TO BE APPLIED TO THE SHIPMENTS THERE INVOLVED. THEREFORE, WE CANNOT NOW GIVE CONSIDERATION TO THIS ASPECT OF YOUR CLAIM.

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