B-130579, APR. 3, 1957

B-130579: Apr 3, 1957

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YOU CLAIMED AND WERE PAID FOR THIS SERVICE $992.09. IN THE AUDIT OF THE PAYMENT VOUCHER IN OUR TRANSPORTATION DIVISION THE ALLOWABLE CHARGES WERE COMPUTED ON THE BASIS OF A CLASS-2 CARLOAD RATE OF $2.92 PER 100 POUNDS (MINIMUM WEIGHT 12. YOU WERE CALLED UPON TO REFUND THE AMOUNT OF $571.25. - "* * * SHIPMENT WAS PICKED UP BY CONTRACT DRAYMEN AND THEY WERE PAID 13 CENTS PER CWT. FOR THE PICK UP SERVICE AND THE TARIFFS ARE VERY SPECIFIC THAT WHERE REFUND HAS BEEN MADE TO THE SHIPPER OR CONSIGNEE FOR PICK UP DELIVERY SERVICE THE L.C.L. THIS CLAIM WAS DISALLOWED FOR THE REASON THAT THERE WAS NO EVIDENCE SHOWING THAT THIS SHIPMENT WEIGHING 2. WAS A LESS-THAN-CARLOAD SHIPMENT. IN YOUR REQUEST FOR REVIEW YOU AGAIN ALLEGE THAT THIS SHIPMENT WAS ACCORDED PICK-UP SERVICE AND THAT THE SHIPPER WAS ALLOWED A REFUND FOR PICK-UP SERVICE AND THAT 13 CENTS PER 100 POUNDS WAS PAID THE CONTRACT DRAYMEN FOR SUCH SERVICE.

B-130579, APR. 3, 1957

TO ILLINOIS CENTRAL RAILROAD COMPANY:

CONSIDERATION HAS BEEN GIVEN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT CERTIFICATE (CLAIM NO. TK-531432) DATED SEPTEMBER 1, 1955, WHICH DISALLOWED YOUR CLAIM, PER BILL NO. WQ-6337-A, FOR $571.25 AS A PART OF THE CHARGES ALLEGED TO BE DUE FOR TRANSPORTING A SHIPMENT OF 14,462 POUNDS OF "CAPS NOT MILLINERY NOT FLAT FOLDED FLAT OR NESTED SOLID," FROM CONSHOHOCKEN, PENNSYLVANIA TO MEMPHIS, TENNESSEE, UNDER BILL OF LADING NO. WW-1361013, DATED JULY 1, 1948.

YOU CLAIMED AND WERE PAID FOR THIS SERVICE $992.09, COMPUTED ON THE BASIS OF A COMMERCIAL RATE OF $6.86 PER 100 POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER IN OUR TRANSPORTATION DIVISION THE ALLOWABLE CHARGES WERE COMPUTED ON THE BASIS OF A CLASS-2 CARLOAD RATE OF $2.92 PER 100 POUNDS (MINIMUM WEIGHT 12,000 POUNDS), AT THE ACTUAL WEIGHT OF 14,462 POUNDS, AS PUBLISHED IN AGENT CURLETT'S TARIFF NO. 44-I, I.C.C. NO. A-800, PLUS APPLICABLE INCREASES, AND YOU WERE CALLED UPON TO REFUND THE AMOUNT OF $571.25. HOWEVER, YOU FAILED TO REFUND THE AMOUNT REQUESTED, NECESSITATING THE DEDUCTION OF A LIKE AMOUNT FROM MONEYS OTHERWISE DUE YOU, AS AUTHORIZED BY THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C. 66. THEREAFTER, YOU CLAIMED $571.25 ALLEGED TO BE DUE, URGING THAT---

"* * * SHIPMENT WAS PICKED UP BY CONTRACT DRAYMEN AND THEY WERE PAID 13 CENTS PER CWT. FOR THE PICK UP SERVICE AND THE TARIFFS ARE VERY SPECIFIC THAT WHERE REFUND HAS BEEN MADE TO THE SHIPPER OR CONSIGNEE FOR PICK UP DELIVERY SERVICE THE L.C.L. RATE SHOULD APPLY * * *.'

THIS CLAIM WAS DISALLOWED FOR THE REASON THAT THERE WAS NO EVIDENCE SHOWING THAT THIS SHIPMENT WEIGHING 2,462 POUNDS IN EXCESS OF THE MINIMUM WEIGHT PROVIDED IN ITEM 23845 OF THE CONSOLIDATED FREIGHT CLASSIFICATION, WAS A LESS-THAN-CARLOAD SHIPMENT.

IN YOUR REQUEST FOR REVIEW YOU AGAIN ALLEGE THAT THIS SHIPMENT WAS ACCORDED PICK-UP SERVICE AND THAT THE SHIPPER WAS ALLOWED A REFUND FOR PICK-UP SERVICE AND THAT 13 CENTS PER 100 POUNDS WAS PAID THE CONTRACT DRAYMEN FOR SUCH SERVICE. IN VIEW OF SUCH ALLOWANCE YOU STATE THAT THERE IS NO AUTHORITY FOR APPLYING A CARLOAD RATE ON THIS SHIPMENT.

THE SHIPMENT APPARENTLY IS PROPERLY RATED UNDER ITEM 23845 OF CAPS, NOIBN, NOT MILLINERY: NOT FLAT, FOLDED FLAT NOR NESTED SOLID," THE CARLOAD RATING BEING SUBJECT TO A MINIMUM WEIGHT OF 12,000 POUNDS. RULE 16 OF THE CLASSIFICATION PROVIDES THAT A LESS-THAN-CARLOAD SHIPMENT IS ONE WEIGHING LESS THAN THE MINIMUM WEIGHT PROVIDED FOR CARLOADS. THIS SHIPMENT, WEIGHING AS IT DID, 2,462 POUNDS IN EXCESS OF THE CARLOAD MINIMUM WEIGHT, WAS A CARLOAD SHIPMENT AND THE LESS THAN-CARLOAD RATE IS NOT PROPERLY APPLICABLE. FOSTER BROS. MFG. CO. V. NEW YORK CENTRAL RAILROAD COMPANY, 273 I.C.C. 582. HERE, NO PICK-UP SERVICE WAS PERFORMED BY THE CARRIER OR ITS AGENT AND THE SMALL ALLOWANCE ALLEGEDLY PAID TO THE GOVERNMENT'S CONTRACTOR FOR DELIVERY TO THE CARRIER'S STATION DOES NOT AFFORD ADEQUATE JUSTIFICATION FOR THE PAYMENT OF THE SUBSTANTIAL EXCESS OF THE CHARGES HERE CLAIMED OVER THE CARLOAD BASIS. SEE, IN THIS CONNECTION, CRANE CO. V. ALTON RAILROAD COMPANY, 268 I.C.C. 511; L. A. DARLING CO. V. CHICAGO AND N.W. RY. CO., 292 I.C.C. 508.

WITH RESPECT TO THE STATEMENT IN THE LAST PARAGRAPH OF YOUR LETTER THAT A "SIMILAR" ITEM WAS HANDLED UNDER OUR CLAIM TK-021475, COVERED BY OUR CERTIFICATE NO. T-654668, APRIL 2, 1956, YOU ARE ADVISED THAT AN EXAMINATION OF BILL OF LADING NO. N-550084, DATED OCTOBER 26, 1942, COVERED BY YOUR BILL NO. N-173426-A, SHOWS THAT THE SHIPMENT WEIGHED 7,450 POUNDS AND, THEREFORE, WAS IN FACT A "LESS-THAN-CARLOAD" SHIPMENT AND WAS PURCHASED "F.O.B. WORKS," YPSILANTI REED FURNITURE COMPANY. HENCE, THERE IS NO SIMILARITY BETWEEN THAT SHIPMENT AND THE SHIPMENT HERE INVOLVED WHICH IS IN FACT A "CARLOAD" SHIPMENT, SINCE IT WEIGHS 2,462 POUNDS IN EXCESS OF THE PUBLISHED CARLOAD MINIMUM WEIGHT AND WAS PURCHASED F.O.B. CARS, CONSHOHOCKEN, PENNSYLVANIA. SEE IN THIS CONNECTION RULE 14 OF CONSOLIDATED FREIGHT CLASSIFICATION FOR THE DEFINITION OF CARLOAD FREIGHT.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.