B-132651, NOV. 12, 1957

B-132651, NOV. 12, 1957

TO GREAT NORTHERN RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, PER FILE G-92692-E, FOR REVIEW OF THE SETTLEMENT (CLAIM NO. TK-310524), WHICH DISALLOWED YOUR CLAIM, PER SUPPLEMENTAL BILL G-92692-E, FOR $267.80 AS A PART OF THE CHARGES ALLEGED TO BE DUE FOR TRANSPORTING A SHIPMENT OF TWO FREIGHT AUTOMOBILES FROM AVONDALE, COLORADO, TO SEATTLE, WASHINGTON, FOR EXPORT, ON BILL OF LADING NO. WV-6932816, IN APRIL 1945.

THE RECORD SHOWS THAT A SHIPMENT WAS TRANSPORTED FROM SAN ANTONIO, TEXAS, TO THE PUEBLO ORDNANCE DEPOT, AVONDALE, COLORADO, UNDER BILL OF LADING WV- 9974536, DATED MARCH 13, 1945. THIS BILL OF LADING COVERED TWO VEHICLES, EACH OF WHICH WEIGHED 7,545 POUNDS AND WAS DESCRIBED AS A ,FREIGHT AUTOMOBILE (1 1/2 TON 4 BY 4 CARGO TRUCK, WO/W).' THE RECORD OF TRANSIT BILLS AND TONNAGE CREDITS SHOWS THAT THIS SHIPMENT WAS RECORDED FOR STORAGE-IN-TRANSIT AT THE PUEBLO ORDNANCE DEPOT, AVONDALE, COLORADO, UNDER BUREAU NO. 1913. AN OUTBOUND SHIPMENT TRANSPORTED FROM THAT DEPOT TO THE SEATTLE PORT OF EMBARKATION, SEATTLE, WASHINGTON, FOR EXPORT, IS DESCRIBED ON THE COVERING BILL OF LADING NO. WV-6932816, DATED APRIL 16, 1945, AS TWO "FREIGHT AUTOMOBILES (TRUCK 1 1/2 TON 6 BY 6 PERS AND CARGO W/W)," WEIGHING 14,410 POUNDS. BILL OF LADING WV-6932816 IS ANNOTATED TO SHOW THAT THIS SHIPMENT WAS TRANSITED UNDER THE PROVISIONS OF THE THEN APPLICABLE SECTION 22 QUOTATION NO. 16-F, AND FULL REFERENCE IS MADE TO THE INBOUND SHIPMENT, AND BUREAU TRANSIT NO. 1913. DUE TO WAR CONDITIONS, THESE TWO VEHICLES WERE NOT EXPORTED TO THE HAWAIIAN ISLANDS AS INTENDED, BUT WERE REFORWARDED ON BILLS OF LADING WW 6176485 AND WW-6176488, DATED MAY 17, 1945, VIA THE NORTHERN PACIFIC RAILWAY AND THE SOUTHERN PACIFIC COMPANY TO EMERYVILLE, CALIFORNIA, AND EXPORTED TO THE PHILIPPINES IN JUNE 1945.

FOR THE TRANSPORTATION OF THE THROUGH SHIPMENT FROM SAN ANTONIO, TEXAS, TO SEATTLE, WASHINGTON, YOU CLAIMED, ORIGINALLY, AND WERE PAID, CHARGES COMPUTED ON THE BASIS OF A THROUGH EXPORT RATE OF $2.22 PER 100 POUNDS ON THE TRANSIT TONNAGE, PLUS THE TRANSIT CHARGE, AND A LOCAL RATE OF $2.09 PER 100 POUNDS ON 4,590 POUNDS USED TO MAKE THE CARLOAD MINIMUM, LESS THE AMOUNT PAID INTO THE TRANSIT POINT. THEREAFTER, YOU CLAIMED $267.80 ADDITIONAL, BASED ON A WESTERN WEIGHING AND INSPECTION BUREAU CORRECTION SHEET CONTAINING THE ALLEGATION OF "IMPROPER SURRENDER OF TONNAGE" UNDER ITEM 14 OF SECTION 22 QUOTATION 16-F. YOUR CLAIM WAS DISALLOWED BECAUSE ITEM 14 OF SECTION 22 QUOTATION NO. 16-F DID NOT REQUIRE THAT THE TONNAGE SHIPPED OUTBOUND CONSIST OF A COMMODITY IDENTICAL WITH THE COMMODITY SHIPPED INBOUND.

IN YOUR REQUEST FOR REVIEW YOU ALLEGE THAT THE QUOTATION PROVIDES THAT "THE OUTBOUND SHIPMENT SHALL CONSIST OF THE SAME COMMODITY AS THE INBOUND SHIPMENT," AND YOU REFER TO PARAGRAPH "/1)" OF ITEM 14 OF SECTION 22 QUOTATION 16-F AS REQUIRING THE INBOUND AND OUTBOUND FREIGHT VEHICLES TO BE OF "A DESIGNATED TYPE, RATED CAPACITY AND BODY DESIGN.'

THE SHIPMENT UNDER CONSIDERATION WAS SHIPPED FROM SAN ANTONIO, TEXAS, ON MARCH 13, 1945; RESHIPPED FROM THE TRANSIT POINT, AVONDALE, COLORADO, ON APRIL 16, 1945, AND THE VEHICLES WERE EXPORTED IN JUNE 1945. ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 16-F IS DATED MARCH 21, 1945, AND ITEM 20 THEREOF PROVIDES FOR ITS APPLICATION ON SHIPMENTS IN STORAGE ON THAT DATE UNDER THE PROVISIONS OF THE SUPERSEDED ISSUE (QUOTATION 16-E). THE INBOUND SHIPMENT WAS IN STORAGE UNDER THE PROPER PROVISIONS. THUS, THE RIGHTS AND LIABILITIES OF THE CARRIERS AND THE GOVERNMENT TO TRANSIT UNDER THIS QUOTATION WERE FIXED AS OF THE DATE OF ISSUE, BUT WITHOUT PREJUDICE TO ANY ACCRUED RIGHTS UNDER THE PRIOR ISSUE, AS PROVIDED IN THE CITED ITEM 20 OF QUOTATION 16-F. ITEM 14 OF QUOTATION 16-F PROVIDES, IN PERTINENT PART, THAT "* * * THE OUTBOUND SHIPMENT FROM THE TRANSIT POINT MUST CONSIST OF THE SAME QUANTITY AND CHARACTER OF TRAFFIC AS THE INBOUND SHIPMENT.' THE INBOUND SHIPMENT UNDER CONSIDERATION HERE CONSISTED OF TWO 1 1/2 TON 4 BY 4 CARGO TRUCKS, WO/W, AND THE OUTBOUND SHIPMENT CONSISTED OF TWO 1 1/2 TON 6 BY 6 PERSON AND CARGO TRUCKS. THE SAME NUMBER OF TRUCKS WERE SHIPPED INBOUND AS OUTBOUND, AND SINCE 1 1/2 TON TRUCKS WERE SHIPPED BOTH INBOUND AND OUTBOUND, AND WEIGHED APPROXIMATELY THE SAME, THE SHIPMENTS CONSISTED OF THE SAME QUANTITY AND CHARACTER OF TRAFFIC.

CONCERNING YOUR REFERENCE TO PARAGRAPH "/1)" OF ITEM 14 IN QUOTATION NO. 16-F, THIS PARAGRAPH APPARENTLY WAS FIRST PUBLISHED IN AMENDMENT NO. 5 TO THE QUOTATION, DATED OCTOBER 8, 1945, OR APPROXIMATELY THREE MONTHS AFTER THESE VEHICLES HAD BEEN EXPORTED. FURTHER, THE PROVISIONS OF THIS PARAGRAPH PURPORT TO DECREASE THE BENEFITS ACCRUING TO THE UNITED STATES UNDER THE QUOTATION, IN DEROGATION OF ACCRUED RIGHTS, APPARENTLY WITHOUT GRANTING ANY COMPENSATING BENEFITS TO THE UNITED STATES. ACCORDINGLY, PARAGRAPH "/1)" OF ITEM 14 OF QUOTATION NO. 16-F CAN HAVE NO RETROACTIVE EFFECT IN CONNECTION WITH THIS SHIPMENT.