B-135332, MAY 16, 1958

B-135332: May 16, 1958

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TOPEKA AND SANTA FE RAILWAY COMPANY: REFERENCE IS MADE TO YOUR REQUEST. PACIFIC COAST TERMINAL LINES WILL MAKE A FLAT ALLOWANCE TO THE GOVERNMENT OF 3 CENTS PER 100 LBS. ON ALL TRANS- CONTINENTAL OFF-SHORE TRAFFIC * * * AND SUCH ALLOWANCE WILL APPLY REGARDLESS OF WHETHER THE RATES ARE IN THE EXPORT OR DOMESTIC TRANS CONTINENTAL FREIGHT BUREAU TRAFFIC. " AND THAT "THIS ALLOWANCE WILL APPLY ON ALL SHIPMENTS REACHING DESIGNATED UNITED STATES PACIFIC COAST PORTS ON OR AFTER OCTOBER 1. THE SHIPMENTS UNDER CONSIDERATION HERE WERE TRANSPORTED IN NOVEMBER AND DECEMBER 1943. QUOTATION NO. 265 WAS CANCELLED BY QUOTATION NO. 265-A. APPARENTLY IS INTENDED TO SUGGEST THAT THE GOVERNMENT REPRESENTATIVES AT THE JOINT DISCUSSION CONCURRED IN THE ELIMINATION OF THE ALLOWANCES ON SHIPMENTS MOVING IN TANK CARS DELIVERED LONG BEFORE THE DISCUSSION.

B-135332, MAY 16, 1958

TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:

REFERENCE IS MADE TO YOUR REQUEST, UNDER FILE G-291680, FOR REVIEW OF THE ACTION TAKEN IN CONNECTION WITH YOUR CLAIM FOR $823.95 ADDITIONAL TO THE AMOUNT PREVIOUSLY ALLOWED FOR THE TRANSPORTATION OF VARIOUS TANK CARLOADS OF AVIATION GASOLINE BLENDING STOCK FROM PORT ARTHUR, TEXAS, TO WILMINGTON, CALIFORNIA, ON BILLS OF LADING N-3133929 AND N-313663, IN NOVEMBER AND DECEMBER 1943. THE AMOUNT CLAIMED REPRESENTS THE TERMINAL ALLOWANCE OF 3 CENTS PER 100 POUNDS NAMED IN ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 265.

IN YOUR REQUEST FOR REVIEW YOU REFER TO EARLIER CORRESPONDENCE IN WHICH YOU UNDERTAKE TO EXPLAIN WHY THE PORT ALLOWANCE COULD NOT BE MADE ON SHIPMENTS MOVING IN TANK CARS. YOU MENTION A JOINT DISCUSSION ON THIS SUBJECT BETWEEN PACIFIC COAST TERMINAL LINES AND THE SEVERAL WASHINGTON DEPARTMENTS OF THE GOVERNMENT ON FEBRUARY 17, 1945, IN WASHINGTON, AND THAT SUCH DEPARTMENTS INDICATED NO EXCEPTION.

ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 265 PROVIDES IN ITEM 2 THAT THE ,PACIFIC COAST TERMINAL LINES WILL MAKE A FLAT ALLOWANCE TO THE GOVERNMENT OF 3 CENTS PER 100 LBS. ON ALL TRANS- CONTINENTAL OFF-SHORE TRAFFIC * * * AND SUCH ALLOWANCE WILL APPLY REGARDLESS OF WHETHER THE RATES ARE IN THE EXPORT OR DOMESTIC TRANS CONTINENTAL FREIGHT BUREAU TRAFFIC," AND THAT "THIS ALLOWANCE WILL APPLY ON ALL SHIPMENTS REACHING DESIGNATED UNITED STATES PACIFIC COAST PORTS ON OR AFTER OCTOBER 1, 1943.' THE SHIPMENTS UNDER CONSIDERATION HERE WERE TRANSPORTED IN NOVEMBER AND DECEMBER 1943. THEREFORE, THE RIGHT OF THE GOVERNMENT TO THE ALLOWANCE ACCRUED AT THE TIME THE SHIPMENTS ARRIVED AT THE PORT FOR EXPORTATION.

QUOTATION NO. 265 WAS CANCELLED BY QUOTATION NO. 265-A, EFFECTIVE AUGUST 29, 1944, WITHOUT PREJUDICE TO ANY ACCRUED RIGHTS OR LIABILITIES OF ANY PARTY THEREUNDER. AMENDMENT NO. 5 TO THE SUPERSEDING QUOTATION, DATED MARCH 16, 1945, PURPORTED TO ELIMINATE THE ALLOWANCE ON "SHIPMENTS MOVING TO THE PORT IN TANK CARS" ON OR AFTER OCTOBER 1, 1943. YOUR REFERENCE TO A JOINT DISCUSSION BETWEEN THE PACIFIC COAST TERMINAL LINES AND SEVERAL DEPARTMENTS OF THE GOVERNMENT ON FEBRUARY 17, 1945, APPARENTLY IS INTENDED TO SUGGEST THAT THE GOVERNMENT REPRESENTATIVES AT THE JOINT DISCUSSION CONCURRED IN THE ELIMINATION OF THE ALLOWANCES ON SHIPMENTS MOVING IN TANK CARS DELIVERED LONG BEFORE THE DISCUSSION.

WE HAVE NO INFORMATION AS TO THE RESULTS OF THE JOINT DISCUSSION WHICH YOU REPORT TOOK PLACE, BUT, IN ANY EVENT, IT IS NOT UNDERSTOOD THAT ANY GOVERNMENT AGENT OR OFFICER WOULD HAVE THE AUTHORITY TO AMEND OR MODIFY A COMPLETELY EXECUTED GOVERNMENT CONTRACT SO AS TO INCREASE THE GOVERNMENT'S LIABILITY UNLESS A COMPENSATING BENEFIT WAS RECEIVED BY THE UNITED STATES. J. J. PREIS AND CO. V. UNITED STATES, 58 C.CLS. 81; YALE AND TOWNE MFG. CO. V. UNITED STATES, 67 C.CLS. 618; VULCANITE CEMENT CO. V. UNITED STATES, 74 C.CLS. 692, 705.

SO FAR AS WE ARE AWARE THE GOVERNMENT DID NOT RECEIVE ANY BENEFIT OR CONSIDERATION, WHICH WAS SPECIFICALLY RELATED TO THE ELIMINATION OF THE ALLOWANCE AS TO SHIPMENTS WHICH HAD BEEN TRANSPORTED MORE THAN A YEAR BEFORE SUCH ATTEMPTED ELIMINATION, IN ADDITION TO THAT CONTEMPLATED AT THE TIME THE BILL OF LADING CONTRACTS OF TRANSPORTATION WERE COMPLETED. UNDER THE CIRCUMSTANCES AMENDMENT NO. 5, TO THE EXTENT THAT IT PURPORTS TO INCREASE RETROACTIVELY THE CHARGES ON SHIPMENTS OF THIS KIND, CANNOT BE GIVEN EFFECT IN OUR AUDIT. ACCORDINGLY, MODIFICATION OF THE ACTION TAKEN IN THIS CASE IS NOT JUSTIFIED AND YOUR CLAIM CANNOT BE ALLOWED.