B-133700, JUL. 3, 1958

B-133700: Jul 3, 1958

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TO CENTRAL OF GEORGIA RAILWAY COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 4. THE ONLY QUESTION INVOLVED IS WHETHER THE MATERIAL SHIPPED CONSISTED OF "MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE. LAND-GRANT RATES ARE APPLICABLE. FOR THE SERVICES HERE INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF FULL COMMERCIAL TARIFF RATES. TO THE EFFECT THAT THE SHIPMENTS WERE MILITARY PROPERTY OF THE UNITED STATES FOR MILITARY USE AND THAT THE BILLS OF LADING WERE TO BE CONVERTED TO GOVERNMENT BILLS OF LADING AT DESTINATION. WT- 3018208 IS NOT ENDORSED TO REFLECT THE MILITARY CHARACTERIZATION. THE BILLS OF LADING SHOW THAT ALL OF THE SHIPMENTS WERE CONSIGNED TO THE COMMANDING OFFICER.

B-133700, JUL. 3, 1958

TO CENTRAL OF GEORGIA RAILWAY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 4, 1957, FILE N- 28320-G-A, REQUESTING REVIEW OF OUR SETTLEMENT DISALLOWING YOUR CLAIM IN THE AMOUNT OF $228.18 ON SUPPLEMENTAL BILL NO. N-28320-A-G-R 1443, COVERING SHIPMENTS OF COAL FROM VARIOUS ALABAMA MINES TO TALLACOOSA, ALABAMA, DURING MARCH AND APRIL 1944.

THE ONLY QUESTION INVOLVED IS WHETHER THE MATERIAL SHIPPED CONSISTED OF "MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE," TO WHICH, UNDER SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 898, 954, LAND-GRANT RATES ARE APPLICABLE. FOR THE SERVICES HERE INVOLVED YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF FULL COMMERCIAL TARIFF RATES. THE SHIPMENTS MOVED ON COMMERCIAL BILLS OF LADING ENDORSED, IN ALL BUT ONE INSTANCE, TO THE EFFECT THAT THE SHIPMENTS WERE MILITARY PROPERTY OF THE UNITED STATES FOR MILITARY USE AND THAT THE BILLS OF LADING WERE TO BE CONVERTED TO GOVERNMENT BILLS OF LADING AT DESTINATION. ONLY THE COMMERCIAL BILL OF LADING COVERED BY GOVERNMENT BILL OF LADING NO. WT- 3018208 IS NOT ENDORSED TO REFLECT THE MILITARY CHARACTERIZATION. THE BILLS OF LADING SHOW THAT ALL OF THE SHIPMENTS WERE CONSIGNED TO THE COMMANDING OFFICER, ALABAMA ORDNANCE WORKS, TALLACOOSA, ALABAMA. IN OUR AUDIT OF THE PAID VOUCHERS, THE CHARGES WERE ADJUSTED TO THE BASIS OF THE APPLICABLE NET LAND-GRANT RATES BECAUSE THE SHIPMENTS WERE MOVING FOR 100 PERCENT MILITARY USE, AND YOU WERE CALLED UPON TO REFUND THE RESULTING OVERPAYMENT OF $456.23. UPON YOUR REFUSAL TO REFUND SUCH OVERPAYMENT, THE AMOUNT OF $456.23 WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE YOU.

IN YOUR SUPPLEMENTAL BILL HERE INVOLVED YOU CLAIM ONE HALF OF SUCH DEDUCTION ON THE THEORY THAT THE SHIPMENTS SHOULD BE CONSIDERED 50 PERCENT MILITARY AND 50 PERCENT CIVIL IN CHARACTER, AND IN SUPPORT OF SUCH CLAIM YOU STATE THAT "NOT ALL PRODUCTS OR BY-PRODUCTS OF THE ALABAMA ORDNANCE WORKS WERE 100 PERCENT MILITARY IN NATURE.' THAT CLAIM WAS DISALLOWED BECAUSE THERE WAS NOTHING IN THE RECORD TO INDICATE THAT THE SHIPMENTS WERE NOT FOR MILITARY USE.

IN REQUESTING REVIEW OF THE MATTER YOU APPARENTLY CONTINUE TO MAINTAIN YOUR POSITION THAT NOT ALL PRODUCTS OF THE ALABAMA ORDNANCE WORKS WERE 100 PERCENT MILITARY IN NATURE. IN THIS CONNECTION, IT WAS HELD IN CHICAGO AND NORTH WESTERN RAILWAY CO. V. UNITED STATES, 74 F.SUPP. 943; 109 C.CLS. 804, THAT COAL SHIPPED TO AND USED IN THE OPERATIONS OF ONE OF THE GOVERNMENT-OWNED ORDNANCE PLANTS THERE CONCERNED DURING THE WAR PERIOD WAS "MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE," WITHIN THE PURVIEW OF THE EXCEPTION IN SECTION 321 (A) OF THE TRANSPORTATION ACT OF 1940, ENTITLING SUCH PROPERTY TO LAND-GRANT RATES.

SINCE THE SHIPMENTS OF COAL HERE INVOLVED WERE MADE TO A GOVERNMENT OWNED ORDNANCE PLANT DURING TIME OF WAR THERE APPEARS TO BE NO VALID REASON WHY THE PRINCIPLE OF THE ABOVE CHICAGO AND NORTH WESTERN RAILWAY ONCE SHOULD NOT BE GIVEN EFFECT IN SUPPORTING THE APPLICATION OF LAND-GRANT RATES. ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM WAS PROPER AND IS SUSTAINED.