B-134575, MAY 19, 1958

B-134575: May 19, 1958

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TO UNION PACIFIC RAILROAD COMPANY: REFERENCE IS MADE TO YOUR REQUEST. GTW-129500 WAS USED TO PARTIALLY OFFSET ADDITIONAL OVERPAYMENTS OF $368.62 NOTED ON THE SAME BILL. WAS SUBSEQUENTLY COLLECTED BY DEDUCTION. THE AMOUNTS CLAIMED (INCLUDING THE $368.62 OVERPAYMENT WHICH WAS COLLECTED AND FOR WHICH CLAIM IS MADE IN YOUR LETTER OF DECEMBER 2. FILE GTW- 129500) REPRESENT OVERPAYMENTS WHICH WERE COLLECTED BY OFFSET TO ADJUST THE CHARGES ORIGINALLY PAID ON YOUR BILLS NOS. SUBSTANTIALLY SIMILAR FACTS ARE INVOLVED IN THE THREE SETTLEMENTS. WHICH IS REPRESENTATIVE OF THE GENERAL SITUATION. WERE SHIPPED IN THREE CARS ON SEPARATE BILLS OF LADING. " THAT IT WAS A "PART SHIPMENT WITH" THE OTHER TWO BILLS OF LADING.

B-134575, MAY 19, 1958

TO UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, PER FILE GTW-129225, 129288, 129500, FOR A REVIEW OF THE SETTLEMENTS OF SEPTEMBER 25, 1952 (TK 138847), AND MARCH 17, 1955 (TK-149189), WHICH DISALLOWED YOUR CLAIMS FOR $1,032.76 AND $1,034.02, RESPECTIVELY, UNDER BILL NOS. GTW-129255, AND GTW-129288, AND OF THE SETTLEMENT OF MAY 12, 1955 (TK-123323), WHICH ALLOWED $216.02 OF THE $4,253.62 CLAIMED UNDER BILL NO. GTW 129500. THE AMOUNT ALLOWED ON YOUR BILL NO. GTW-129500 WAS USED TO PARTIALLY OFFSET ADDITIONAL OVERPAYMENTS OF $368.62 NOTED ON THE SAME BILL; THE BALANCE OF THE OVERPAYMENT, $152.60, WAS SUBSEQUENTLY COLLECTED BY DEDUCTION. THE AMOUNTS CLAIMED (INCLUDING THE $368.62 OVERPAYMENT WHICH WAS COLLECTED AND FOR WHICH CLAIM IS MADE IN YOUR LETTER OF DECEMBER 2, 1957, FILE GTW- 129500) REPRESENT OVERPAYMENTS WHICH WERE COLLECTED BY OFFSET TO ADJUST THE CHARGES ORIGINALLY PAID ON YOUR BILLS NOS. GTW-129255, GTW-129288 AND GTW-129500, AS PORTIONS OF THE CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF STEEL BARGES FROM SOUTH PLAINFIELD, NEW JERSEY, TO LONG BEACH, CALIFORNIA, IN APRIL 1944.

SUBSTANTIALLY SIMILAR FACTS ARE INVOLVED IN THE THREE SETTLEMENTS. YOUR BILL NO. GTW-129288, WHICH IS REPRESENTATIVE OF THE GENERAL SITUATION, INVOLVES GOVERNMENT BILLS OF LADING NOS. WT-5621392, WT 5621393, AND WT- 5621394, ISSUED MARCH 31, 1944, BY THE ZONE TRANSPORTATION OFFICER, 2ND TRANSPORTATION ZONE, NEW YORK, TO COVER THE SHIPMENT OF ONE 104-FOOT BELTED SECTIONAL STEEL BARGE, WEIGHING 228,559 POUNDS, WHICH MOVED FROM GROUND STORAGE AT SOUTH PLAINFIELD, NEW JERSEY, TO THE LOS ANGELES PORT OF EMBARKATION, LONG BEACH, CALIFORNIA, FOR EXPORT (RECONSIGNED EN ROUTE FROM WILMINGTON, CALIFORNIA, THE DESTINATION SHOWN ON THE BILLS OF LADING). THE PARTS AND PIECES CONSISTING OF A COMPLETE BARGE, WHEN ASSEMBLED AND SET UP, WERE SHIPPED IN THREE CARS ON SEPARATE BILLS OF LADING, I.E., 20 BUNDLES OF ANGLES AND PLATES, WEIGHING 73,640 POUNDS, IN CAR PRR 362619 ON BILL OF LADING WT-5621392; 16 BUNDLES OF ANGLES AND PLATES, ONE REEL OF WIRE ROPE, 40 BOXES OF MISCELLANEOUS BARGE PARTS, AND ONE HOIST ANCHOR, WEIGHING A TOTAL OF 76,734 POUNDS, IN CAR B AND O 260204 ON BILL OF LADING WT-5621393; AND 37 BUNDLES OF ANGLES AND PLATES, WEIGHING 78,185 POUNDS, IN CAR PRR 357441 ON BILL OF LADING WT 5621394. ANNOTATIONS ON EACH BILL OF LADING INDICATED THAT IT COVERED A "PART LOT; " THAT IT WAS A "PART SHIPMENT WITH" THE OTHER TWO BILLS OF LADING; AND THAT "THIS SHIPMENT MUST NOT BE SEPARATED. ANY DIVERSION ORDER SHOULD COVER ALL CARS (IF ANY CARS ARE BAD-ORDERED ALL CARS MUST BE SET OUT.).'

THE THREE BILLS OF LADING WERE PRESENTED FOR PAYMENT ON SEPARATE CARRIER BILLS; BUT THE CHARGES PAID ON ONLY ONE OF THEM, BILL OF LADING WT- 5621394, ARE INVOLVED IN THE SETTLEMENT OF MARCH 17, 1955 (TK 149189). THAT BILL OF LADING, WHICH COVERED 37 BUNDLES OF ANGLES AND PLATES, WEIGHING 78,185 POUNDS, THE CARRIER ASSESSED AND WAS PAID ON BILL NO. GTW- 129288 TRANSPORTATION CHARGES OF $1,609. THOSE CHARGES, WHICH WERE ADJUSTED BY THE APPLICATION OF LAND-GRANT DEDUCTIONS, PORT ALLOWANCES, AND RECONSIGNMENT CHARGES, WERE DERIVED FROM THE RATING AND RATE APPLICABLE TO ,BARGES, FLAT TOP, OPEN DECK, STEEL, WITH OR WITHOUT WOODEN DECKS, LOOSE OR IN PACKAGES.' THE EXPORT CLASS A RATE OF 307 CENTS PER 100 POUNDS, NAMED IN AGENT L. E. KIPP'S TRANS-CONTINENTAL FREIGHT BUREAU SOUTH COAST CLASS TARIFF NO. 39 G, WAS APPLIED BY YOU IN COMPUTING THE CHARGES.

THE TRANSPORTATION CHARGES PAID ON BILL OF LADING WT-5621394 WERE ADJUSTED IN OUR AUDIT TO $574.98. THOSE CHARGES, MINUS PORT ALLOWANCES AND PLUS RECONSIGNMENT CHARGES, WERE DERIVED FROM A RATE WHICH IS APPLICABLE TO CARLOAD SHIPMENTS OF IRON AND STEEL ARTICLES, NAMELY, THE EXPORT COMMODITY RATE OF 74 CENTS PER 100 POUNDS, MINIMUM WEIGHT 80,000 POUNDS, WHICH IS NAMED IN ITEM 1350 OF AGENT L. E. KIPPS TRANS CONTINENTAL FREIGHT BUREAU WEST-BOUND EXPORT TARIFF NO. 29-G. THE OVERPAYMENT OF $1,034.02 WAS COLLECTED BY DEDUCTION AND YOUR CLAIM FOR THAT AMOUNT WAS DISALLOWED IN THE SETTLEMENT OF MARCH 17, 1955 (TK 149189).

IN YOUR REQUEST FOR REVIEW YOU URGE THAT THE "BARGES WERE OF SUCH SIZE THAT THEY COULD NOT, UNDER ANY CIRCUMSTANCES, BE LOADED ON ANY FREIGHT CAR IN EXISTENCE AND IT WAS NECESSARY FOR THEM TO BE TAKEN APART FOR TRANSPORTATION.' ALSO, YOU REFER TO THE ANNOTATIONS ON (OF THE COMPLETE BARGE) WAS INTENDED TO BE AND WAS A SINGLE SHIPMENT WHICH REQUIRED MORE THAN ONE CAR FOR LOADING.'

THESE TRANSPORTATION SERVICES ARE GOVERNED BY CONSOLIDATED FREIGHT CLASSIFICATION NO. 16. RULE 20 OF THAT CLASSIFICATION READS:

"PARTS OR PIECES CONSTITUTING A COMPLETE ARTICLE, RECEIVED AS ONE SHIPMENT, ON ONE BILL OF LADING, WILL BE CHARGED AT RATING OR RATE PROVIDED FOR COMPLETE ARTICLE.'

THE INTERSTATE COMMERCE COMMISSION IN MANY CASES HAS SAID THAT THE PROVISIONS OF RULE 20 ARE NOT TO BE CONSTRUED AS DENYING TO A SHIPPER THE RIGHT OF SHIPPING THE PARTS OF AN ARTICLE UNDER SEPARATE BILLS OF LADING AT THE LOWEST POSSIBLE RATES APPLICABLE TO SUCH PARTS. SEE, IN THE MATTER OF THE SUSPENSION OF WESTERN CLASSIFICATION NO. 51, 25 I.C.C. 442, 487; GRAVER CORP. V. SOUTHERN RY. CO., 156 I.C.C. 619, 621; ASSOCIATED TELEPH. CO. V. CHICAGO AND N.W. RY. CO., 251 I.C.C. 311, 313; AND BRESSER-STACEY CO. V. ABILENE AND S.RY. CO., 291 I.C.C. 677, 680.

WITH REGARD TO THE CROSS-REFERENCES WHICH WERE USED ON THE BILLS OF LADING FOR THE PURPOSE OF KEEPING THE THREE SHIPMENTS TOGETHER, IT SEEMS CLEAR THAT SUCH CROSS-REFERENCES DO NOT ALTER THE FACT THAT THREE BILLS OF LADING WERE ISSUED AND EXECUTED BY THE CARRIER. HAD THE SHIPPER, WHO WAS THE AGENT OF THE LEHIGH VALLEY RAILROAD, INTENDED TO MAKE A SINGLE SHIPMENT, REQUIRING MORE THAN ONE CAR FOR LOADING, IT SEEMS MORE LIKELY THAT THE SINGLE SHIPMENT IN THREE CARS WOULD HAVE MOVED ON ONE BILL OF LADING. CF. SOULE STEEL CO. V. SOUTHERN PACIFIC CO., 289 I.C.C. 793, WHERE FIVE CARS CONTAINING PARTS CONSTITUTING A COMPLETE ARTICLE WERE SHIPPED ON ONE BILL OF LADING. THE EFFECT OF YOUR POSITION WOULD BE TO ALLOW THE MERGER OF THREE SEPARATE CONTRACTS OF CARRIAGE, EACH COVERING A CARLOAD SHIPMENT AND EACH EVIDENCED BY A SEPARATE BILL OF LADING, INTO ONE CONTRACT OF CARRIAGE. WE FIND NO AUTHORITY FOR THE PROPOSITION THAT CROSS -REFERENCES CREATE SUCH AN EFFECT, EXCEPT WHERE TWO OR MORE BILLS OF LADING ARE ISSUED ON A SINGLE CARLOAD SHIPMENT. SEE EXPOSITION COTTON MILLS V. SOUTHERN RAILWAY CO., 234 I.C.C. 441. FURTHERMORE, TREATING THESE SHIPMENTS, MADE UNDER THREE BILLS OF LADING, AS ONE SHIPMENT OF A COMPLETE ARTICLE, AS YOU URGE, WOULD CONTROVERT THE EXPLICIT REQUIREMENTS OF RULE 20 OF THE CLASSIFICATION THAT THE RULE APPLIES ONLY WHEN THE SHIPMENT IS MADE ON ONE BILL OF LADING. THE FIRST REPORT IN THE OKLAHOMA CORPORATION COMMISSION CASE, 259 I.C.C. 401, MAKES IT CLEAR THAT RULE 20 APPLIES ONLY WHEN THE SHIPMENT MOVES ON ONE BILL OF LADING. IN THAT REPORT THE INTERSTATE COMMERCE COMMISSION SAID (PAGE 408):

"* * * MATERIAL FOR CERTAIN BUILDINGS REQUIRED THE USE OF FROM THREE TO FIVE CARS AND WAS NOT ALWAYS SHIPPED AT THE SAME TIME. WHEN THE FABRICATED MATERIAL FOR A SINGLE UNIT WAS SHIPPED IN SEVERAL CARS FROM THE SAME ORIGIN THE ENTIRE MOVEMENT WAS NOT COVERED BY THE SAME BILL OF DING.'

SEE, ALSO, ASSOCIATED TELEPH. CO. V. CHICAGO AND N.W. RY. CO.,251 I.C.C. 311, 314, AND DRESSER-STACEY CO. V. ABILENE AND S.RY. CO., 291 I.C.C. 677, 680.

FOR THE REASONS SET FORTH ABOVE, THE DISALLOWANCES OF THE CLAIMS COVERED BY YOUR FILES GTW-129225, 129288, AND 129500, WERE PROPER AND ARE, THEREFORE, SUSTAINED.

YOUR CLAIM FOR $368.62, WHICH IS CONTAINED IN YOUR LETTER OF DECEMBER 2, 1957, FILE GTW-129500, WILL BE REFERRED FOR SETTLEMENT TO OUR TRANSPORTATION DIVISION.