B-130473, MAY 2, 1957

B-130473, MAY 2, 1957

TO THE BALTIMORE AND OHIO RAILROAD COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST, FILE NO. USG BILL 0202619-CRS, FOR REVIEW OF THE DISALLOWANCE BY OUR TRANSPORTATION DIVISION OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES OF $77.83 ALLEGED TO BE DUE ON A SHIPMENT FROM BROOKLYN, NEW YORK, TO CLEVELAND, OHIO, ON GOVERNMENT BILL OF LADING NO. CC-005187, DATED JANUARY 31, 1952, AND $169.94 ALLEGED TO BE DUE ON A SHIPMENT FROM GLENDALE, CALIFORNIA, TO SHELBY, OHIO, ON GOVERNMENT BILL OF LADING NO. AF 946251, DATED SEPTEMBER 4, 1951.

YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES IS BASED UPON THE HIGHER MINIMUM CARLOAD WEIGHT SPECIFIED IN RULE 34 OF THE CONSOLIDATED FREIGHT CLASSIFICATION NO. 20 FOR THE LARGER THAN STANDARD SIZE BOXCARS FURNISHED BY THE INITIAL CARRIERS AND USED BY THE SHIPPERS. THE BILLS OF LADING FAIL TO SHOW THAT A SPECIFIC ORDER WAS GIVEN FOR CARS OF ANY PARTICULAR SIZE. THEREFORE, IN SUPPORT OF YOUR CLAIM YOU CITE SECTIONS 4 AND 7 OF RULE 34, WHICH PROVIDE THAT THE MINIMUM CARLOAD WEIGHT FOR A CAR OF THE SIZE USED WILL BE APPLIED IN THE ABSENCE OF AN ORDER BY THE SHIPPER FOR A CAR OF A PARTICULAR SIZE.

ON GOVERNMENT SHIPMENTS, HOWEVER, THE PRACTICE IS WELL ESTABLISHED THAT AN ORDER PLACED FOR A CAR WITHOUT DESIGNATION AS TO SIZE INDICATES THAT A CAR OF STANDARD SIZE IS DESIRED AND, IF A LARGER CAR IS FURNISHED, IT MUST BE REGARDED AS FURNISHED FOR THE CONVENIENCE OF THE CARRIER UNLESS REQUIRED FOR THE SHIPMENT. SEE 19 COMP. GEN. 730; 24 COMP. DEC. 48. WITH RESPECT TO THE PUBLISHING OF GRADUATED MINIMUM WEIGHTS FOR CARS OF VARYING DIMENSIONS, THE INTERSTATE COMMERCE COMMISSION SAID IN RULE 66/A) OF ITS TARIFF CIRCULAR NO. 20 THAT:

"* * * IT IS NOT EQUITABLE OR PROPER TO REQUIRE THE WOULD BE SHIPPER TO PAY ADDITIONAL TRANSPORTATION CHARGES FOR THE PRIVILEGE OF USING A CAR OF DIFFERENT DIMENSIONS OR CAPACITY FROM THAT WHICH WOULD SUIT HIS SHIPMENTS OR FOREGO ENTIRELY HIS DESIRE TO SHIP.'

SEE ALSO BORDEN BRICK AND TILE CO. V. ATLANTIC COAST LINE R. CO., 198 I.C.C. 232. THE COMMISSION HAS REPEATEDLY HELD THAT THE ASSESSMENT OF CHARGES ON THE BASIS OF THE MINIMUM WEIGHT FOR A LARGER CAR THAN ORDERED BY THE SHIPPER IS UNREASONABLE, WHEN THE LARGER CAR IS FURNISHED FOR THE CONVENIENCE OF THE CARRIER AND THE COMMODITIES SHIPPED COULD HAVE BEEN LOADED ON THE SMALLER CAR ORDERED. SEE BLATZ BREWING CO. V. UNION PACIFIC R. CO., 248 I.C.C. 528; KENTUCKY ROCK ASPHALT CO. V. LOUISVILLE AND NASHVILLE R. CO., 234 I.C.C. 449.

THERE IS NO INDICATION IN THE RECORD OF THE TWO SHIPMENTS INVOLVED IN THIS CASE THAT THE COMMODITIES SHIPPED COULD NOT HAVE BEEN LOADED IN BOXCARS OF STANDARD SIZE. THE BURDEN IS ON THE CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO NECESSARY TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES. SEE 18 COMP. GEN. 980; 17ID. 831. THE RECORD IN THIS CASE IS INSUFFICIENT TO PROVE THE LIABILITY OF THE UNITED STATES FOR THE ADDITIONAL FREIGHT CHARGES CLAIMED.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE BY OUR TRANSPORTATION DIVISION OF YOUR CLAIM FOR ADDITIONAL FREIGHT CHARGES APPEARS TO BE CORRECT, AND IS SUSTAINED.