B-134740, APR. 11, 1958

B-134740: Apr 11, 1958

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TO THE TEXAS AND NEW ORLEANS RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20. THE RECORD SHOWS THAT THESE ENGINES WERE UNLOADED AT SHIPSIDE IN NEW YORK HARBOR AND THERE WERE LOADED BY THE ERIE RAILROAD COMPANY. THE BILL OF LADING SHOWS ALSO THAT THE SHIPMENT WAS "RECORDED FOR TRANSIT" AT BROOKLEY. FOR THIS TRANSPORTATION THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY CLAIMED AND WAS PAID $835.51 ON ITS BILL 4358-89. WERE FORWARDED FROM BROOKLEY. FOR THE THROUGH TRANSPORTATION YOU CLAIMED AND WERE PAID $364.82 ON YOUR BILL 7013-8. THE TARIFF AUTHORITY FOR THE CHARGE IS NOT SHOWN ON THE BILL OF LADING. THE CHARGES ARE SHOWN IN THE SUPPLEMENTAL BILL AS BEING COMPUTED ON THE BASIS OF A THROUGH CLASS 55 RATE OF $2.86 PER 100 POUNDS.

B-134740, APR. 11, 1958

TO THE TEXAS AND NEW ORLEANS RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20, 1957, FILE WW-7013 8-RG, CONCERNING THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL FOR $185.14 ADDITIONAL TO THE CHARGES PREVIOUSLY PAID FOR THE TRANSPORTATION OF A SHIPMENT OF EIGHT METAL CASES OF INTERNAL COMBUSTION ENGINES, WEIGHING 29,080 POUNDS, FROM STAPLETON, STATEN ISLAND, NEW YORK LIGHTERAGE, NEW YORK, TO BROOKLEY, ALABAMA, THERE STORED IN TRANSIT AND LATER FORWARDED TO SAN ANTONIO, TEXAS, IN 1954.

THE RECORD SHOWS THAT THESE ENGINES WERE UNLOADED AT SHIPSIDE IN NEW YORK HARBOR AND THERE WERE LOADED BY THE ERIE RAILROAD COMPANY, THE ORIGIN CARRIER, INTO CAP ERIE 11008, A 50-FOOT, 6-INCH FLAT CAR, FOR FORWARDING TO BROOKLEY, ALABAMA, ON BILL OF LADING NO. WY-2978911; APRIL 27, 1954. THIS BILL OF LADING SHOWS ON ITS FACE THE NOTATION "HANDLING, LOADING, BLOCKING AND BRACING BY ERIE RR CO.' THE BILL OF LADING SHOWS ALSO THAT THE SHIPMENT WAS "RECORDED FOR TRANSIT" AT BROOKLEY, ALABAMA. FOR THIS TRANSPORTATION THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY CLAIMED AND WAS PAID $835.51 ON ITS BILL 4358-89, COMPUTED ON THE BASIS OF A CLASS-45 RATE OF $1.76 PER 100 POUNDS, CARLOAD MINIMUM WEIGHT 41,280 POUNDS, PLUS 15 PERCENT. THEREAFTER, ON JULY 29, 1954, THE ENGINES, WEIGHING 29,420 POUNDS, WERE FORWARDED FROM BROOKLEY, ALABAMA, ON TRANSIT BILL OF LADING NO. AF-T-53117 TO SAN ANTONIO, TEXAS, IN CAR M AND STL 56104, A CAR 40 FEET LONG. THIS BILL OF LADING CONTAINS REFERENCE TO BILL OF LADING NO. WY-2978911 AS COVERING THE INBOUND SHIPMENT. FOR THE THROUGH TRANSPORTATION YOU CLAIMED AND WERE PAID $364.82 ON YOUR BILL 7013-8. THE TARIFF AUTHORITY FOR THE CHARGE IS NOT SHOWN ON THE BILL OF LADING. YOU THEN CLAIMED, PER SUPPLEMENTAL BILL NO. WW-7013-8-B, $185.14 ADDITIONAL FOR THIS TRANSPORTATION. THE CHARGES ARE SHOWN IN THE SUPPLEMENTAL BILL AS BEING COMPUTED ON THE BASIS OF A THROUGH CLASS 55 RATE OF $2.86 PER 100 POUNDS, CARLOAD MINIMUM WEIGHT 41,280 POUNDS, PLUS THE TRANSIT CHARGE, BOTH PLUS 15 PERCENT, PLUS THE LOCAL RATE FROM BROOKLEY ON THE NON-TRANSIT TONNAGE. THE MINIMUM WEIGHT OF 41,280 POUNDS IS THAT PROVIDED IN RULE 34 OF THE CLASSIFICATION FOR THE USE OF A 50-FOOT, 6-INCH FLAT CAR FOR THE TRANSPORTATION OF A SHIPMENT OF INTERNAL COMBUSTION ENGINES. THIS CLAIM WAS DISALLOWED AND YOU WERE REQUESTED TO REFUND $216.12, THIS AMOUNT REPRESENTING THE CHARGES ON THE SHIPMENT COMPUTED ON THE BASIS OF THE RATES USED BY YOU, EXCEPT FOR THE USE OF THE MINIMUM WEIGHT PROVIDED FOR A STANDARD CAR.

IN THIS INSTANCE, THE INBOUND SHIPMENT WAS LOADED BY THE CARRIER'S EMPLOYEES AT A POINT ON THE CARRIER'S PROPERTY, AND ON A CAR OF THE CARRIER'S CHOICE OVER WHICH THE SHIPPER APPARENTLY EXERCISED NO CONTROL. INFORMATION ON THE FACE OF THE BILL OF LADING WY-2978911 INDICATES THAT THE PROPERTY CONSISTED OF IMPORT FREIGHT WHICH WAS LOADED FROM SHIPSIDE IN THE NEW YORK LIGHTERAGE AREA, AND WAS THEREBY SUBJECT TO THE PROVISIONS OF TRUNK LINE TARIFF NO. 116-F, BOIN'S I.C.C. NO. A-978, ENTITLED "LIGHTERAGE AND TERMINAL REGULATION IN NEW YORK HARBOR AND VICINITY.' RULE M-10, AS PUBLISHED IN ITEMS 7010, 7015, AND 7020 OF THIS TARIFF, PROVIDES IN PART THAT:

"/A) THE PROVISIONS OF PARAGRAPH (D) WILL APPLY UPON FREIGHT IN CARLOADS RECEIVED FROM ALL ORIGINS NOT LOCATED IN THE CONTINENTAL UNITED STATES OF AMERICA (INCLUDING ALASKA), DOMINION OF CANADA, * * * AND FORWARDED FROM SHIP'S SIDE OR DOCK OF THE VESSEL BRINGING SUCH FREIGHT WITHIN THE FREE LIGHTERAGE OR EXTRA TOWING LIMITS * * * WHEN SUCH FREIGHT IS LOADED INTO CARS BY THE INITIAL CARRIER EMPLOYEES * * * IN ACCORDANCE WITH TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.'

PARAGRAPH (D) ENTITLED "RULE TO APPLY," READS AS FOLLOWS:

"ON ONE CONSIGNMENT SHIPPED AT ONE TIME BY ONE CONSIGNOR TO ONE CONSIGNEE AND ONE DESTINATION WHICH EQUALS OR EXCEEDS THE MINIMUM CARLOAD WEIGHT PROVIDED IN THE GOVERNING CLASSIFICATION OR TARIFFS GOVERNING THE TRAFFIC RULES NOS. 14, 24, AND 34 OF THE GOVERNING CLASSIFICATION WILL NOT APPLY, BUT THE CARLOAD RATE WILL BE CHARGED ON THE ACTUAL WEIGHT OF THE ENTIRE CONSIGNMENT WHEN SUCH WEIGHT IS EQUAL TO OR IN EXCESS OF THE CARLOAD MINIMUM WEIGHT PROVIDED THEREIN, REGARDLESS OF THE NUMBER OF CARS WHICH MAY BE USED TO LOAD SUCH CONSIGNMENT.'

THEREFORE, RULE M-10 REMOVES THE APPLICATION OF RULE 34 OF THE CLASSIFICATION IN ITS ENTIRETY FROM CONSIDERATION IN COMPUTING THE CHARGES ON SHIPMENTS SUCH AS THE ONE UNDER CONSIDERATION.

ACCORDINGLY, IT APPEARS THAT YOUR CLAIM WAS PROPERLY DISALLOWED. THE OVERPAYMENT OF $216.12 SHOULD BE PROMPTLY REFUNDED; OTHERWISE, THIS AMOUNT WILL BE FOR ADJUSTMENT IN MAKING PAYMENT OF OTHER AMOUNTS DUE YOU.